Louis de Gouyon Matignon

The first come, first served technique in space law

The first come, first served technique, used for a long time in satellite telecommunications law in order to allocate the natural resources of space (geostationary orbit, frequency spectrum) between States, is in the foreground currently in the context of the allocation of domain names allowing access to the Internet.

In these two areas covered by the law of new technologies, the choice of this rule very quickly showed its limits, which explains its questioning in favour of rules more respectful of the interest of all States concerning telecommunications law by satellite, and the interest of the holders of intellectual property rights concerning access to the Internet.

We can note certain features common to several facets of the law of new technologies, in this case to the law of data processing, more precisely to the law related to the Internet, and to the space law: both relate to great technical, economic phenomena for processing and communicating information. Both target resources (geostationary orbit and the Internet) objects of commerce.

Internet and satellite telecommunications (moreover, the Internet benefits from the performance of satellites) create a world without physical borders, just as they destroy the borders between the rights governing them, i.e. telecommunications law and IT law, which converge. The establishment of a global village, whether through the use of a physical space (the geostationary orbit and the frequency spectrum for telecommunications satellites) or a virtual space (Internet), was made thanks to the application of the principle of first come, first served, which has, in these fields, known drifts and showed its limits.

The principle of first come, first served applied to the law of space activities was posed in the law of space activities, more precisely in international telecommunications law, in order to manage the scarcity of technical supports, that is to say i.e. the twin radio frequency spectrum resource and geostationary orbit. Indeed, the orbit and the spectrum are limited natural resources, although inexhaustible, requiring that a sufficient interval be respected between the satellites in order to avoid collisions and in order to guard against interference between radio waves.

The regulation of the spectrum and the geostationary orbit was therefore imperative. These regulations are international in nature, since waves, like positions on the geostationary orbit, transcend the notion of border. It is the International Telecommunication Union (ITU) which has been given responsibility for managing the distribution of orbital positions, in addition to its original spectrum management competence.

As early as the 1960s, a procedure leading to the recording of the frequencies of geostationary satellites was put in place, and the much-disputed principle of first come, first served, implying that orbital positions and frequencies are delivered to the law of the first occupant, posed. The ITU has been the center of North-South confrontations following the criticisms addressed by the developing countries to the developed countries in that the latter would exploit their positions on the geostationary orbit and on the frequency spectrum in their self-interest, regardless of the spirit or the letter of the space treaties, which lay down the principle of the exploitation of space in the interest of all humankind.

The culmination of this conflict was stigmatised by the first come, first served rule retained by the ITU for the recording of frequencies and orbital positions for satellites. In principle, this rule does not create property rights for the benefit of first-timers, but it has been the subject of much criticism from developing countries. The first occupant system was then doubled with an a priori planning system.

These two spectrum management methods for satellite telecommunications are an illustration of two phenomena which the ITU must face: on the one hand, the race for access to space which developed countries are engaged in, the other, the privileges demanded by developing countries in order to gain better access to space.

The principle of first come, first served is the corollary of the principle of freedom of space laid down in the 1967 Outer Space Treaty: thus, everyone can place an object in space, but must respect the rights of the first occupant. Economic arguments were first put forward in support of this principle, so that countries that have invested in satellite telecommunications systems can benefit from priority access to space.

On a technical level, the first come, first served system has the advantage of flexibility, which allows better management of resources. The allocation of orbital positions and frequencies on a first come, first served basis is a procedure for frequency coordination before use under the terms of the thirty-fourth ITU report on telecommunications and the peaceful uses of outer space. The right to use an orbital position is acquired through negotiations with administrations which use the same part of the orbit. Little by little, the unused parts of the orbit thus find takers and are occupied.

The first come, first served rule, which ensures the first user a privilege enshrined in law recalls the acquisition of land by discovery: the first to discover this or that territory became its owner, provided that the occupation meets certain conditions. In outer space, the right of the first occupant is enshrined: the first to request the assignment of a frequency and an orbital position is the first to be served; the first occupant does not, however, become the owner of these scarce resources (in theory) but he occupies them first for a certain time.

The allocation of natural resources from outer space is also the result of the race. This priority occupation does not, however, give rise to the acquisition of the natural resources of the space, to their appropriation. Indeed, Article II of the 1967 Outer Space Treaty states that space “cannot be the object of national appropriation by proclamation of sovereignty, neither by use or occupation, nor by any other way”. The provisions of the OST remind us that nature, immutable in essence, is exclusive of human intervention: it is impossible for it to appropriate it.

The principle of first come, first served simply gives the right to operate a frequency without interference, based on the priority of the recording: it is a right of use, that is to say the minimum faculty which a property can be subject to. However, the fact that the first to be able to access space is the first to receive satisfaction implies that if very strict rules are not adopted in order to operate a kind of rotation between States, the use of orbital positions can be perpetual. This is demonstrated by the storage possibilities, the exchange of orbital positions, and the rental and sale practices for these same positions, which may raise doubts about the absence of property rights conferred on the beneficiaries of orbital positions.

The concept of appropriation, the fruit of the first come, first served rule, comes to mind despite the principles of efficient and economical use of the orbit and equitable access of all countries to this orbit by ITU instruments, which militate against the existence of such a property right. In some respects, this principle takes us into the grabbing dynamics, like what is happening on Earth.

If correctly applied, the principle of first come, first served allows good management of the spectrum/orbit resource. But it has been criticised because in practice, it does not allow the promotion of equity in access to space resources. The primitive principle of first come, first served has indeed resulted in the distribution of waves and orbital positions almost exclusively for the benefit of industrialised countries.

This is why planning appeared: frequency and orbital position plans were drawn up in order to preserve the twin resource for future use by all countries, especially those which do not have the current capacity to use space resources. This system relates to broadcasting satellites or direct television satellites. A planning agreement freezing the legal situation of broadcasting satellites was reached in 1977.

Each country received an orbital position and five frequency channels. This allocation procedure works without the constraint of first come, first served, as all countries are allocated a limited number of channels according to the planning method. There is therefore no piecemeal demand from Western countries alone as for fixed satellite services or for hybrid satellites.

Moreover, since the 1985 and 1988 sessions of the World Administrative Radio Conference, this procedure has gained fixed satellite services since an initiation of a priori planning of the fixed service (at least one orbital position per country on an arc and a predetermined band) was started against them. The planning method provides better than the first come, first served rule the temporary nature of the right to use the orbital position and the frequency, since the plan established by the ITU World Administrative Radio Conference must be subject to regular revisions (although these revisions must of course be carried out) even if some may have seen in this planning a manifestation of non-compliance with the principle of free access to the geostationary orbit in the extent to which planning restricts other States’ access to orbital positions.

Satellite launch contract

Let us have a look at the satellite launch contract. With the commercial exploitation of space, the contractual aspects relating to the construction, launching or even the exploitation of a space object take on their full significance. More generally, aspects of private law become predominant, even if they are, of course, part of a framework of public, national and international law, stemming from national space legislation, community instruments and international treaties.

Space contracts are not completely new contracts: they borrow pre-existing molds. However, contractual practice is innovating in order to respond to new needs generated by new techniques: innovation is reflected here in the very fine adaptation to the subject of the contract. Let us have a look at the satellite launch contract.

How does the satellite launch contract works? How is it created? In this area, we can really speak of the launch market. The last few years have in fact seen the European company Arianespace, long in a situation of quasi-monopoly in matters of commercial launches, widely challenged by companies not only American and Russian, but also Chinese, Japanese, Indian, and Brazilian.

Arianespace launches the Ariane 5 rocket from the Guiana Space Center (CSG). The small European launcher Vega and the Russian launcher Soyuz are now also launched from the CSG (see the declaration by certain European governments relating to the operating phase of the Ariane, Vega and Soyuz launchers at the Guiana Space Center, adopted in Paris on March 30, 2007 and French law n° 2009-434, April 21, 2009 authorising the approval of this declaration).

The market for launches is undoubtedly deeply upset since the arrival of the private company SpaceX. This formidable competition explains the deep reorganisation of the European launch industry, in progress, with the takeover of Arianespace by Airbus Safran Launchers. In 2015, the joint venture reached an agreement with the French State and CNES concerning the transfer of the shares held by CNES in the capital of Arianespace. It is within this framework that the new Ariane rocket (Ariane 6) will be developed.

This competition is organised through different forms of cooperation. Thus, Arianespace is part of a joint venture, Starsem, with, among others, the Russian Space Agency, whose objective is to have satellites placed in low or medium orbit by the Soyuz launcher. International Launch Services (ILS) is a joint venture formed by Lockheed Martin and the two manufacturers of the Russian Proton rocket, intended to market the American launch vehicles Proton and Atlas.

The Sea Launch consortium used to launch the Zenit rocket from a reconverted offshore platform installed off the coast of California. Finally, in terms of launches, the American companies Boeing and Lockheed Martin have formed the joint venture United Launch Alliance, authorised by the Federal Trade Commission and by the European Commission (Case N° COMP / M.3856 – Regulation (EC) N° 139 / 2004 Merger Procedure, August 9, 2005). The cooperation also takes the form of back-up agreements put in place between certain launch companies, such as the agreement between Arianespace, Boeing Launch Services and Mitsubishi Heavy Industries, making it possible to guarantee customers the availability of an Ariane 5 rocket , or Sea Launch or H-2 in Japan.

Collaboration can also take place between the public and private sectors, as in the NASA COTS program, which has given rise to the development of contract models (COTS Model for NASA Public-Private Partnerships) and the conclusion of contracts between NASA and industry (SpaceX and Orbital).

Launch is the cornerstone of space activities. The object of the launch contract is the “provision of services for the launch” of a satellite (single launch) or of several satellites (double launch). Before the launch, the launch company undertakes to prepare for the launch (preparation of the launch site, payload, integration of the satellite on the launcher, manufacture of the launch vehicle, the launch assembly, etc.), to put the satellite supplied by the customer into orbit, and to provide certain documents to the customer.

The customer undertakes to deliver the satellite, in accordance with the contractual specifications, within the deadlines provided for in the contract, to pay the price of the satellite according to a very precise payment schedule, to comply with the rules relating to the export of sensitive goods, or to respect the confidentiality agreement…

The launch contract is a service contract since the main obligation of the launch company is to provide the launch, a concept defined in the contract. Launching is “the event from which operations become irreversible”, but the exact definition may vary depending on the technical specifications of each rocket.

It should be asked whether the launch contract is a particular form of service provision, namely whether it corresponds to the criteria of the transport contract, as is sometimes put forward, since it meets the criteria of the transport contract , i.e. transport from one place to another, control of the movement conferred on the transporter (during launch, the satellite has no autonomy, it is placed in the cover of the launch vehicle and is completely passive) and the professional nature of the operation.

Nevertheless, insofar as launching is not the only obligation weighing on the launching company, French case law leans in this case, for other contracts than the launching contract with which one can make the parallel, for the qualification of service contract.

The satellite launch contract is international in nature, as it takes place in an international space (outer space) and involves design and construction operations taking place in several countries. Moreover, in a judgement of the Paris Court of Appeal of May 10, 2007, “Caisse centrale de réassurance contre Arianespace”, it was clarified that the dispute is international if the transaction to which it relates does not involve a single State.

The reinsurance contract related to the launch of satellites by Arianespace, launches whose technical characteristics, dates, amounts were transmitted by S3R to the Central Reinsurance Fund, and the dispute submitted to the arbitrators related to the determination the ceiling for the relaunch counter-guarantee following the failure to launch the Eutelsat Hot Bird 7 satellite. This activity covered by the reinsurance contract was not exclusively French, but at least European, so that arbitration was international.

Understanding the Wassenaar Arrangement

The Wassenaar Arrangement, from its original name Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, actually designates an elitist club of countries (thirty-three at the base and today numbering more than forty) having subscribes to a multilateral export control regime. Established on May 12, 1996 in Wassenaar in the Netherlands, it is today one of the four international export control regimes, but the only one not to focus only on the non-proliferation of weapons of mass destruction and of their vector systems.

Its main objective is to coordinate export policies in terms of armaments but also dual-use goods and technologies. It succeeds the Coordinating Committee for Multilateral Export Controls signed in 1949 (COCOM) and which, during the Cold War, controlled the flow of weapons and technology destined for the Soviet Union. A secretariat has now been set up in Vienna, in which at least one meeting takes place a year in December.

The forty-two States participating in this Wassenaar Arrangement are as follows: South Africa, Germany, Argentina, Australia, Austria, Belgium, Bulgaria, Canada, South Korea, Croatia, Denmark, Spain, Estonia, the United States of America, Finland, France, Greece, Hungary, India, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg , Malta, Mexico, New Zealand, Norway, the Netherlands, Poland, Portugal, the Czech Republic, Roumania, the United Kingdom, Russia, Slovakia, Slovenia, Sweden, Switzerland, Turkey, and finally Ukraine.

Every six months member countries exchange information on deliveries of conventional arms to non-Wassenaar members that fall under eight broad weapons categories: battle tanks, armored fighting vehicles (AFVs), large-caliber artillery, military aircraft, military helicopters, warships, missiles or missile systems, and small arms and light weapons.

The structure of the Wassenaar Arrangement

Three main groups govern the work of the Wassenaar Arrangement. It should be noted that since June 4, 2011, it is Philip Wallace Griffiths who assumes the position of head of the Secretariat. There is the general working group (WA-GWG), studying political questions and meeting twice a year. The Plenary Assembly (WA-PLM), taking the decisions proposed by the other groups. It meets at the end of the year. While in 2017 France assumed the presidency of the Assembly, it was Greece that won this honor in 2019. And finally, the expert group called WA-EG, proposing the annual updating of the checklists, which meets twice a year for sessions of fifteen days on average.

Certain occasional groups also meet for specific missions: the group of officials responsible for carrying out checks, the group of Viennese contact points, preparing the administrative and budgetary questions to be discussed and the awareness group, preparing questions related to the dissemination of good accreditation practices.

Implicit State commitment

There are two notable differences between COCOM (established by the Western Bloc in the first five years after the end of World War II, during the Cold War, to put an embargo on COCOM countries; it ceased to function on March 31, 1994) and the Wassenaar Arrangement. First, the International Industrial List disappears and is replaced upon signature of the Arrangement. No Member State now has the right to veto the decision to include or not include a potential new technology on the list.

Today, the Wassenaar Arrangement has two categories of lists: the first deals with ammunition, covers technologies and goods with a purely military objective. As for the second, it includes a set of so-called dual-use goods and technologies: the latter term includes any product or technology that can be used for both civilian and military purposes: we are thinking in particular of nuclear, chemical or even conventional armaments (weapons of war in accordance with international conventions and governing wars). Due to the risk of diversion surrounding these categories of goods, many countries have also developed a nuclear program, both civil and military, in order to minimise the risks.

Thus, each exporter must obtain a transfer license from the competent national authority for a good that would be listed. The political agreements of the Member States are recorded in the basic documents, called Basic Documents, in the form of initial elements (Initial Elements), good practices (Best Practices) and the memorandum (Statement of Understanding).

Verification and compliance are two watchwords today: since there is no treaty, and therefore no formal mechanism to ensure the implementation of the recommended measures. There is no legal constraint, and this is also the reason why the Member States joined in December 2000 during the sixth Plenary Assembly in Bratislava, on the implementation of non-binding practices, called “non-binding best practices”. The arrangement is therefore entirely based on the willingness of Member States to incorporate the principles set out in their legislation.

The regulation of the goods on the list is therefore done through increased control of exports and imports. The main objective is to contribute to international security by highlighting the transparency of exchanges and transfers of conventional weapons and dual-use technologies. The signatory countries must therefore ensure that the operations they carry out do not in any way harm international security and stability.

However, in addition to their participation in the annual updating of the export control lists of conventional weapons and dual-use goods and technologies, the members of the Arrangement implicitly commit themselves after the signature, or at least are strongly encouraged: to follow the directives, elements and practices adopted, to control in accordance with internal legislation the export of goods appearing on the military list and the list of dual-use goods, to report on transfers of conventional armaments and dual-use items considered to be sensitive, and of refusals to transfer dual-use items in general, and finally to exchange information on exports of highly sensitive dual-use goods and technologies.

Finally, and since the regulation of June 22, 2000, the principles of export control and the list of controlled dual-use goods and technologies, as defined by the Wassenaar Arrangement, apply to any Member State of the European Union.

India, for example, is one of the last nations to join the Wassenaar Arrangement in 2018. Unanimously decided at a meeting in Vienna under a French presidency, close cooperation is now underway between the two nations for international security.

This article was written by Yanis Saint-Julien (Paris-Saclay).

Understanding the World Heritage Convention

Adopted by UNESCO in 1972, and with its full title The Convention Concerning the Protection of the World Cultural and Natural Heritage, the World Heritage Convention is the official document of the World Heritage Site, and now has one hundred and thirty-one signatory States. Only countries belonging to UNESCO, or invited by UNESCO, can take part.

This global instrument has managed to put in place an inventory, a list, of properties of universal value, requiring the most absolute protection. Through judicial, administrative and financial cooperation, the concept of world heritage is highlighted, and transcends all borders, both political and geographical.

Necessary cooperation between national and international legislation

It is therefore a cooperation between national and international legislation that must be made in order to ensure effective protection of the environment. The Member States, by signing the World Heritage Convention, therefore agree to use all their resources but also to request international assistance if necessary in order to adopt an internal policy in line with the main lines of the Convention, to set up the measures, develop studies, research, take the necessary measures, and set up national and regional training and research centers, as required in the text.

Because they alone, when reading the lines, have a so-called international responsibility. They therefore have an obligation of authenticity, management, education and protection, which, even if it can be delegated to the local level, remains at the international level a governmental obligation, hence the need for internal legislation.

However, this is still very complicated to set up in the measure or on all of the signatory countries, only one of them, Australia, has really set up internal rules of law, framed, and defining the powers and responsibilities of the State in its relation to the World Heritage Convention. The United States of America, meanwhile, has clarified certain points of law on the Convention, but this is still unclear.

With regard to management responsibilities, the principle is simple: the sites and properties selected must be chosen with care, and, subsequently, the States in question must take the appropriate measures to protect and conserve the cultural heritage within of its own territory. These measures must be taken with respect for authenticity both in design, in materials, and in the implementation of working conditions. Each State remains free to implement these measures, in accordance with its internal legislation.

A necessary cooperation between safeguarding tourism and respecting the World Heritage Convention

This is the main issue faced by the signatory States: how to combine one of the main sources of income of a country and respect for the main lines of the World Heritage Convention? Because most of the sites listed in the World Heritage List remain at the same time tourist sites. It is therefore important for all Member States to put in place the necessary measures to ensure that the necessary infrastructure is implemented to protect them: because reducing tourism would in a way amount to removing part of the liquidity which potentially could allow the implementation of these measures.

Caught in a vicious circle, the State must adapt. Thus, in addition to the Convention, another document, called Operational Guidelines, recently reviewed in 1992, determines the process to be implemented in order to determine whether or not a site enters the Word Heritage List or not. Once this site enters the list, no measure is imposed on the management and authenticity of the site. However, any measure that would have a negative effect on the site (such as mass tourism, poorly controlled, exposing the site to progressive destruction) is likely to lead to its exit from classification by UNESCO or even to international action against the state in question. Once the terms of the World Heritage Convention have been accepted, they must be respected.

The World Heritage Committee and the World Heritage Center: two major players

The World Heritage Committee is made up of twenty-one designated signatory nations. Elections take place every two years. The World Heritage Center, meanwhile, was established in 1992, well after the Convention was put in place, and its main mission is to encourage non-signatory States to join the Convention, but also to assist States in the establishment of institutions and competent personnel for management the protection and restoration of sites designated in the World Heritage List.

The World Heritage Committee selects the sites to be listed as UNESCO World Heritage Sites, including the World Heritage List and the List of World Heritage in Danger, defines the use of the World Heritage Fund and allocates financial assistance upon requests from States Parties. Deliberations of the World Heritage Committee are aided by three advisory bodies, the International Union for Conservation of Nature (IUCN), the International Council on Monuments and Sites (ICOMOS) and the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM).

The World Heritage List

Through the signature, each country therefore undertakes to conserve the cultural and natural sites which it shelters and which are considered by the Convention to be of exceptional and universal value. In exchange, the international community jointly helps to preserve them. The properties belonging to this category or not are determined by the World Heritage Committee. While the first eight sites were registered in 1978, more than forty years later, today, nearly three hundred and sixty sites from eighty-three different countries are listed.

This committee also has the mission of preparing and publishing the list of so-called endangered properties, threatened either by destruction, deterioration or abandonment, whether by urban projects, the development of tourism, a change of owner, or armed conflicts or natural disasters. With each new entry in the list, a publication must be made immediately.

The World Heritage Fund

Established by the World Heritage Convention, this fund is financed by the joint contribution of Member States but also through private organizations and committed individuals. It is used for the implementation of measures whose main objective is the protection of sites classified by the World Heritage Committee. Member States can indeed request international assistance, whether for studies, expert opinions, the employment of technicians or specialised employees or even equipment. Long-term loans or grants may also be considered in some cases.

This article was written by Yanis Saint-Julien (Paris-Saclay).

Satellite construction contract

Let us have a look at a satellite construction contract. With the commercial exploitation of space, the contractual aspects relating to the construction, launching or even the exploitation of a space object take on their full significance. More generally, aspects of private law become predominant, even if they are, of course, part of a framework of public, national and international law, stemming from national space legislation, community instruments and international treaties.

Space contracts are not completely new contracts: they borrow pre-existing molds. However, contractual practice is innovating in order to respond to new needs generated by new techniques: innovation is reflected here in the very fine adaptation to the subject of the contract. Let’s have a look at the satellite construction contract.

Numerous restructuring operations have changed the face of the satellite construction market, which now has only a few satellite manufacturers: Hughes Space and Communications, which was taken over by Boeing in 2000, Lockheed Martin, Space Systems/Loral (company bought by the Canadian MDA) and Orbital Science Corporation in the United States of America, EADS Astrium Satellites became Airbus Defence and Space, and Thales Alenia Space in Europe, not to mention the arrival of so-called low cost manufacturers, such as OHB in Germany. The competition between them is very keen.

In recent years, especially in the USA, a satellite manufacturer may also be an operator of satellite systems or even a launch service provider. Restructuring the market, if it does not take the form of vertical integration, can also take the form of acquisitions of financial participation by satellite manufacturers in companies operating services provided by satellite. We can also note that manufacturers, satellite integrators, can also be equipment suppliers on a global scale. In all cases, the manufacture of satellites is part of a complex contractual scheme, reflecting the sharing of tasks between equipment manufacturers, subcontractors and the industrial-integrator.

When concluding the contract, the buyer first establishes certain specifications, combined in an invitation to tender, sent to the selected manufacturers, who submit proposals (technical, financial, contractual details) from which the buyer chooses. The buyers are international organizations, national agencies, and private customers. The content of construction contracts is also likely to vary given the quality of the contracting parties and their bargaining power.

The purpose of the construction contract is “the design, construction, testing and delivery” of one or more satellites. The manufacturer provides the personnel, material, equipment, services and facilities necessary for the performance of its obligations (construction of the satellite, performance of the satellite, etc.). The buyer agrees to pay the price. The nature of the obligations weighing on the two parties immediately brings to mind the qualification of a contract for the sale of a future thing, the spatial object to be manufactured. However, the satellite manufacturing contract also involves the provision of services, inviting us to also consider qualifying as a business contract.

The satellite manufacturing contract would be closer to a business contract, since it corresponds to a single service, suitable for meeting the needs of a client. It does not enter within the framework of a series production (even if one seeks more and more a serial approach, for the manufacture of the platform of the satellite, i.e. the structure of the satellite which contains all the payload support equipment: acquisition of the final orbit, correction of the orbit, satellite attitude control, power supply, thermal control, telemetry, remote control, etc.). However, the contract can be qualified as a business contract only if the customer played a key role in the design of the product (specifications and technical means to be used) and not if he simply described the objectives of the product. The difficulty is to determine what precision we will require from the client to be in the presence of a contract for the provision of services.

This contract, which appeared in the second half of the 1980s, consolidates the services to be performed during the life of the satellite (supply of the satellite, launch, reception, operation in orbit), services which are all the responsibility of the manufacturer. The contract provides for example that “The Satellite Contractor will a) manufacture and deliver the satellite in accordance with the delivery schedule (…) including, inter alia, (i) the design, development, manufacture, assembly, integration, test and shipment of the Satellite; (ii) the performance of the launch campaign, launch and early operational phase, in-orbit test and on-site support; (iii) the delivery of the satellite and other deliverable items, including but not limited to dynamic satellite simulator, satellite control center and base band subsystem and the provision of all necessary personnel, materials, equipment, services, technical data and information, facilities and documentation and (b) online support for in-orbit operation through the lifetime of the satellite (…)”.

The contractual process is simplified for the benefit of the buyer, since he only has one contact, the manufacturer of the satellite. On the other hand, for the latter, the burden of this type of contract is heavy: indeed, he must demonstrate great coordination capacities, and he bears all the risks, ranging from the design of the satellite to its operation in orbit, including its construction and launch (which assumes that the satellite is ready, that the manufacturer has provided the terrestrial infrastructure for positioning and controlling the satellite, etc.). Some aspects fall under the sales contract, others under the service contract. In addition to the specificity of the object to be delivered, as we saw above, to which we will add recourse to the launching company, we could opt for the qualification of service contract. This qualification is further reinforced by the notion of PPP, in which the satellite manufacturer provides a service and no longer an equipment and becomes an operator.

The bargaining power acquired by the manufacturer’s customers, the satellite operators, prompted the latter to sometimes require the manufacturer, not only to deliver a satellite, but also to put it on the job, that it ensures the frequency coordination activities and search for orbital positions, which it supports in the event of complaints from operators to their insurers in the event of satellite failures, etc., most of these activities are traditionally the responsibility of the operator. All of these obligations militate in favor of classifying a business contract.

Since a satellite construction contract is very detailed, the benefit of qualification may seem residual. However, this interest manifests itself, in particular, when the validity of the clauses providing for liability must be assessed, this assessment being carried out differently depending on the nature of the contract, with regard to the applicable law.

What was the Constellation Program?

The Constellation Program was a NASA space exploration program, the main objective of which was to send astronauts to the Moon around 2020 for long-term missions. On January 14, 2004, President Bush, Jr., presented to Congress as well as to NASA his “Vision for Space Exploration” in which he expressed his desire to see human’s return to the Moon before 2020, and to then prepare a mission to Mars and beyond. As soon as it was presented to the media, the Constellation Program received a mixed reception. While some were enthusiastic about the idea of ​​a new era of exploration beyond the Low Earth Orbit (LEO), others found little interest in an Apollo-bis deemed to be little innovative.

The objectives assigned to this project were very ambitious: the replacement of the fleet of NASA space shuttles (then almost three decades old) by a series of capsules and specialised modules, and then, in 2020, the construction of outposts on the Moon for expeditions to Mars. In its detailed report, NASA described the five main objectives of the Constellation Program: ending the ISS station, developing a sustainable program of human and robotic missions, extending the presence of humans through the Solar system, developing technological innovations, and promoting international and commercial participation.

To meet these objectives, NASA largely used the scenario of the Apollo program: a spacecraft (Orion) was responsible for transporting the crew to and from lunar orbit, while a second vehicle, Altair, was intended for landing on the Moon and returning to Orion. However, where the Apollo program used the Saturn V launcher to send the two vehicles to the Moon, the Constellation Program provided for two launchers, one of which (Ares I) was intended for launching the manned capsule, while the other (Ares V) placed the lunar module and the last stage of the launcher responsible for accelerating the assembly, towards the Moon in Low Earth Orbit (LEO). Indeed: the mass of spacecraft to be sent to the Moon has increased considerably to meet the more ambitious objectives of the Constellation Program. Sending by a single launcher would require developing a much more powerful launcher than the Saturn V launcher. The technique of rendezvous in orbit is perfectly mastered by NASA, which makes it possible to envisage an assembly in orbit of vehicles bound for the Moon, scenario which had been ruled out because considered too risky at the time of the Apollo program. Orion must would have been used for non-lunar missions, in particular the service to the International Space Station (ISS), which requires having an intermediate class launcher.

As NASA pointed out, the exploration of the Solar system and beyond is guided by important scientific and social questions. In addition to human, scientific and technological prowess, this ambitious program aimed above all to seek our cosmic origins, to discover if life exists elsewhere than on Earth and how could we live on other worlds, in particular on the Moon and on Mars. The program also had to ensure that the choices made were sustainable, affordable and flexible. The Constellation Program, however, suffered from technical difficulties, but also from insufficient resources. To reach the objectives set as soon as possible, in 2004, Congress had accepted a six percent increase in NASA’s budget for the 2005 fiscal year, bringing it to sixteen and a half billion American dollars, more than half of which was devoted to exploration missions and space transportation, the rest being devoted to research and development. This budget was accepted on condition that NASA completed the projects in progress, namely the resumption of space shuttle flights and the completion of the International Space Station (ISS) station.

In May 2009, the Constellation Program was approved by President Barack Obama, but he expressed some reservations about the deadline and requested an independent review of the program from the Augustine Commission, made up of a panel of ten experts. President Obama notably proposed alternatives “Ensuring that the national space flight program remains safe, innovative and affordable in the years following the withdrawal of the shuttle service”. He proposed to NASA an envelope of almost nineteen billion American dollars, an extension of five percent compared to the previous year. Meanwhile, in its September 2009 report, the auditors of the GAO, the equivalent of the Court of Auditors, pointed out that the costs of the Constellation Program had increased, and considered that the deadline set for 2020 would not be respected since even NASA could not estimate the final cost of the project without conceptual and technical analysis, even less estimate the launch date of the first manned mission.

In total, since the launch of the Constellation Program, NASA had already swallowed up fifty billion American dollars in the Ares rocket and the Orion spacecraft, out of the ninety-seven billion American dollars allocated. This shift in spending did not bode well. This opinion of the President’s financial experts simply meant that the financing of the project was stopped. Of course, President Obama was not obliged to follow it, but in this case, he was responsible for it. Six months after his request for an investigation, in November 2009, President Obama became aware of the one hundred and fifty-six pages Augustine report. The Commission concluded in particular that the Ares rocket system would not be operational for manned missions before 2017, while the return to the Moon was not possible until around 2025, taking into account the most favorable circumstances.

Faced with the possibility of political failure and setback, to respect his commitments to his voters, on February 1, 2010, President Obama announced the cancellation of the Constellation Program, without abandoning all projects. Indeed, if Barack Obama made the right decision at the right time, he could not abandon everything knowing that the cancellation of contacts with Boeing, Lockheed Martin, Alliant Techsystems and other companies would cost NASA an additional two and a half billion American dollars. The end of the Constellation Program, however, did not spell the end of Mars’ dreams.

The “Artemis” program, successor to “Constellation” is a manned space program of NASA, the American space agency, whose objective is to bring a crew to lunar soil by 2024. At the instigation of the President Donald Trump, the date of human’s return to the Moon, which NASA had set for 2028 without clearly defined programming, was brought forward by four years in April 2019 with objectives which were specified giving birth to the Artemis program. This must lead to a sustainable exploration of our natural satellite, that is to say the organisation of regular missions, the outcome of which would be the installation of a permanent post on the Moon. The program should also make it possible to test and develop the equipment and procedures that will be implemented during future crewed missions on the surface of the planet Mars. The missions of the Artemis program require the development of several spacecraft: the Space Launch System (SLS), heavy launcher, and the Orion spacecraft, the realisation of which has already started for several years but is marked by regular budgetary and calendar slippages. In addition to its very tight deadline, the project encounters a budgetary problem similar to that which had been fatal in 2009 to the Constellation Program which pursued the same objectives. Will Artemis succeed where Constellation has failed? The future will tell us.

This article was written by Komi NUGA (Paris-Saclay).

Advertising in outer space: the beginnings of commercial drifts?

Are we at the origin of a fundamental turning point in terms of advertising in outer space? This is what several start-ups and private companies seemed to announce last year. Advertising is everywhere: on posters (paper or digital), in magazines, on TV, on the Internet, in our smartphones, and even soon in our connected and autonomous cars. Is the next step the sky? Will we one day see giant billboards floating in the clouds… even in outer space? This scenario seems very “science fiction”, reminiscent of works like Blade Runner or Back to the Future, but it is in fact quite realistic.

Originally, several treaties and conventions governed outer space and its appropriation. The principle being the non-appropriation and the peaceful use of the extra-atmospheric environment, according to the 1967 Outer Space Treaty. Indeed, the Outer Space Treaty envisages that all the nations can freely explore outer space, that no celestial body can be claimed by any State, that no weapon of mass destruction is authorised in outer space, and that States (as well as citizens or businesses under their authority) must not cause destruction or contamination by their activities in outer space, or must at least clean up after their passage.

The different regulations concerning outer space do not rule out the possibility that space is the place of commercial advertisements, but nevertheless certain countries have definitively banned the use of advertising in space. This is particularly the case in the United States of America. It all started in 1993, after a bill by Ed Markey, a member of the U.S. Congress, who argued that all forms of advertising in outer space should be banned. This statement follows the Space Billboard project initiated by the American company Space Marketing which planned to launch a luminous orbital advertising panel of one kilometre square. Several criticisms are added to this statement and in particular coming from astronomers who put their finger on the real problem of advertising in outer space. Indeed, several harmful consequences can result from these space advertising campaigns such as light pollution, pollution of space debris or the impossibility of clearly observing the heavens. Indeed, according to University of Mississippi Joanne Irene Gabrynowicz, the logic of this law consisted in considering that large advertisements, such that the space marketing panel, could increase light pollution, create a brighter night sky (which would limit astronomical observations of outer space), interfere with navigation satellites using star finders and sensors solar panels to calibrate their measurements and, more generally, would be visual nuisances for the general public. U.S. law quickly passed on a law on advertising in outer space. Thus, 51 U.S. Code § 50911 entitled “Space advertising”, relating to space advertising, regulates that no license will be issued and no launch will be authorised for activities involving annoying space advertising. This prohibition does not apply to other forms of advertising, such as the display of logos. Thus, American law draws a clear distinction between annoying advertising which is prohibited and non-annoying advertising which is authorised.

Since the 1990s, several private companies have tried repeatedly to take their advertising campaign to the orbital level. This was particularly the case for PepsiCo, which offered nearly five million American dollars to Russia for a cosmonaut to float a replica of the company’s soda can outside the Soviet Mir space station. In 2000, Pizza Hut paid nearly one million American dollars to have its logo painted on a rocket. Most recently, in 2018, the famous SpaceX company led by the prominent Elon Musk, also founder of Tesla, launched a Tesla Roadster as a dummy payload for the test flight of the Falcon Heavy. In 2019, the company Rocket Lab sent a luminous object called “Humanity Star” into orbit.

Several projects, however, never came to fruition, as was the case for the French project “Ring of Light” intended to celebrate the one hundredth anniversary of the Eiffel Tower, and which would have rivalled the Moon for pure luminosity. The project was to have an inflatable ring with a circumference of twenty-four kilometers and this ring would have been attached at various points by reflective Mylar balloons. If the project had been carried out, the organisers would have launched the ring over a height of more than eight hundred kilometers. Fortunately, the project has been abandoned and will not ruin our vision of the Moon. In 2019, a Russian start-up, StartRocket, has tackled the question of advertising in outer space by proposing the orbit of a giant advertising billboard.

Indeed, StartRocket, a Russian start-up, has planned to create the world’s first orbital advertising panel, visible from the blue planet. The project, called Orbital Display, wants to connect a set of nano-satellites (called CubeSats) so as to create a giant advertising panel of fifty kilometers square, placed in outer space at an altitude of four hundred to five hundred kilometers above the sea level. At the origin of the project: a young Russian entrepreneur, Vlad Sitnikov, who recognises that his project is “a crazy idea” but who maintains that “entertainment and advertising are now at the heart of the concerns of our society”. The company plans to launch its CubeSats by 2020, and plans to broadcast its first posters by 2021. Once in outer space, these reflective satellites will be able to broadcast three to four messages or images per day, visible by the entire population of the globe, as soon as the sunlight is reflected on it (five to six minutes per day maximum).

Several astronomers and scientists reacted with fear to the different projects which follow one after the other and for good reason. The same criticisms made today have prompted the U.S. government to ban “annoying” advertising in outer space. Indeed, the satellites could create a real disorder in outer space, by colliding with other machines. John Crassidis says the increase in the number of satellites should clearly “increase the risk of collision”. Because the Earth orbit, where StartRocket would like to send its satellites, currently houses the International Space Station (ISS) as well as hundreds and hundreds of other satellites in service. In addition, John Crassidis fears that these advertising devices “will eventually become space debris”, polluting outer space a little more, and disrupting the operations of scientists from NASA and ESA. Finally, astronomers, but also environmental specialists, fear light pollution which would be generated by such space campaigns and which would disturb nocturnal animals, while making it impossible to observe a completely “virgin” sky.

This article was written by Arthur CATHERINE (Paris-Saclay).

The need to establish a communication network in deep space

Let us study for this new article the need to establish a communication network in deep space. Currently, communications between Earth and outer space or between satellites are by radio waves. A signal is emitted by probes, the higher the frequency of the wave, the more it is possible, at equal energy, to transmit a large amount of data. The Ka band (a portion of the microwave part of the electromagnetic spectrum) for example which operates frequencies between twenty-seven and thirty-one GHz. These waves travel at the speed of light (around three hundred thousand kilometers per second). On a spatial scale, the distances are so great that radio communications are not instantaneous. Thus an order sent to the “Opportunity” rover on Mars takes between three minutes and twenty seconds and twenty-two minutes to reach the rover, depending on the distance from Earth to Mars.

However, it is necessary to manage to pick up this tiny signal: some stations have a satellite dish seventy meters in diameter. And these are extraordinarily sensitive since they can detect a fraction of a billionth of a billion watt. However, as the distance increases, the amount of noise on the signal becomes more and more important. So much so that parasitic noise can be deafening compared to the tiny signal sent by the probes. “The only way to counter this phenomenon is to decrease the bitrate, that is to say the amount of information (or number of bits) sent per second via the high frequency electromagnetic wave” explains CNES Francis Rocard. We therefore see that beyond a certain distance, it will no longer be possible to lower the bitrate and that the parasitic noise will cover all communications. However, the problem is rather to look for the source of energy in the case of the “Opportunity” rover on Mars.

Indeed, the nuclear energy source of the NASA rover is depleted over time. When it comes to an end and will no longer be able to recharge properly, it will no longer be able to supply energy to the vital functions of the spacecraft. In particular, the stabilisation and precise pointing of the Earth with its antenna. As a result, any communication with the sensors, which consumes a lot of energy, will then be impossible. The laser and photonics may well be a game-changer, with much faster exchanges, there may be a need to establish a communication network in deep space. Optical space telecommunications is a category of space telecommunications based on the use of lasers for data transmission. This technique makes it possible to considerably increase the speed compared to radio links while reducing the electrical power required. Indeed, space laser communication technology has the potential to provide data rates ten to one hundred times higher than traditional radio-frequency systems for the same mass and the same power.

The use of the laser in this context, however, comes up against the need for extremely precise pointing from a support possibly moving at high speed relative to the receiver, and when the latter is on the ground with problems of transparency of the atmosphere. Optical space telecommunications have been the subject of numerous experiments since the early 2000s. The use of lasers aims to respond to different contexts: growth in the volume of data transmitted by instruments on board increasingly powerful satellites, distance from Earth’s spacecraft, increasing demands from consumers. The main advantages are, on the one hand, the small divergence of the signal. This is one thousand times less important than a radio link which greatly reduces the power required to transmit the same amount of data. On the other hand, the optical frequency makes it possible to transmit a large amount of data.

As for the main drawbacks, this first requires a very fine pointing of the laser transmitter which is particularly difficult to obtain when the distance and the direction of the receiver change rapidly. But also, there is a sensitivity to the optical transparency of the atmosphere when it is a link with the Earth. Two missions are intended to test the use of the laser for space communications.

The first, LCRD (Laser Communications Relay Demonstration) is a NASA technology demonstrator designed to test the technique of optical communications between a geostationary satellite and a ground station. The transmitter must be on board an experimental Air Force satellite to be placed in orbit in 2020. Two telescopes will be mobilised on the ground to receive the data: the OCTL of the JPL center located in Table Mountain in California, with a one meter aperture telescope, and a station in Hawaii with a sixty centimetres aperture telescope. Both stations are also equipped with a laser transmitter. After that, NASA plans to launch in 2022 the Psyche space probe equipped with an optical telecommunications system DSOC (Deep Space Optical Communication). The space probe must be placed in orbit around an asteroid which circulates at a distance from the Sun of between two and a half and three and a half Astronomical Units. This time, it will be a question of testing laser communication over an even greater distance: it will be a delicate operation since it will take into account the rotation of the Earth and the proper movements of the probe and the asteroid.

High data rates will allow scientists to gather research data faster, study sudden events like dust storms and spacecraft landings, and even send videos from the surface of others planets” says NASA. In short, very high speed in space will change the lives of astronomers.

However, NASA does not intend to get rid of radio waves anytime soon. Because these propagate in all weathers, unlike the laser which risks being blocked by the clouds or disturbed by the atmosphere of a planet. In addition, the light beams have no interest in functions that do not require a large flow, such as piloting instructions. In addition, it is also necessary to adapt the current installations: “Lasers need to have ground infrastructures that do not yet exist. NASA’s Deep Space Network, a system of antenna networks spread across the globe, is based entirely on radio technology”. It will therefore be necessary to build new stations where the sky is clear.

In addition, NASA seeks to develop photonic telecommunications by equipping its satellites with photonic modems, that is to say, which study photons either as waves or as particles, in a classical or quantum approach. The field of study of photonics covers the entire light spectrum from terahertz to X-rays. This spectrum therefore includes lasers but also goes beyond them. NASA explains “Integrated photonics looks like an integrated circuit, except that it is light that is used in place of electrons, to take advantage of the wide variety of uses offered by optics”. The advantage of this device is above all its very small size, but also its lower energy cost. NASA intends to use this experience to improve its knowledge of photonics and to extend its research in other fields. This is what can be said concerning the need to establish a communication network in deep space.

This article was written by Solène FAUQUEUX (Paris-Saclay).

Marine pollution caused by space debris

Let us talk about marine pollution caused by space debris. After sixty years of outer space conquest, orbits around the Earth are becoming a sort of landfill, being increasingly polluted by the countless presence of space debris. There are indeed more than seven hundred thousand pieces of metal and plastic larger than one centimetre that revolve around the Earth. Most often, these are not complete devices but small pieces of satellites, rocket stages or capsule elements which have come loose during accidents or even during the “normal” operation of various space operations.

But the impact of the space debris does not stop there. Although many of them remain in Low Earth Orbit (LEO), some fall back to Earth and create marine pollution. And especially in the oceans. Today, most satellites have a fuel reserve to use when they are near their end of life. This fuel must make it possible to “desorb” the satellite and destroy it in the simplest possible way: by sending it into the Earth’s atmosphere. The friction between the air molecules and the satellite increased by the Earth’s attraction will bring it to temperatures such that, in general, there will be nothing left before any debris can touch the ground. However, there are cases where debris are still present once on Earth and can create marine pollution.

But these fallout are finely planned by those who send these space objects into outer space and in order to minimise the damage caused by the space debris, the “Nemo point”, which takes its name from the famous captain of Twenty Thousand Leagues Under the Sea, is thus referred. Indeed, it is the point of inaccessibility, the most distant place from any land and any human activity. Also known as the “Spacecraft Cemetery” in the South Pacific, located about four thousand kilometers off the coast of New Zealand, it was discovered twenty-six years ago by Canadian-Croatian geographer Hrvoje Lukatela.

Even the fauna is scarce. “There are few fishes in this area because ocean currents do not pass through and do not provide nutrients to this area, which makes marine life scarce” say some specialists. Space objects can therefore crash without risk in this area, before sinking four kilometers deep. “We could also drop them in the Atlantic, but this ocean is narrower, which would make the operation more complicated”.

There is a low probability that stages, engines or fuselage elements dropped by a launcher could reach a marine animal when they enter the ocean during nominal flight operations. The probability of a shock has been estimated. The results of this analysis indicate that there is an extremely low chance of a launching element striking a sea animal. Less than half a shock with an animal is expected annually, even when all the launch activities are added up, and an addition is made on all species of the Atlantic and Pacific oceans”, according to the “Programmatic Environmental Impact Statement for Licensing Launches”. This cemetery has already hosted two hundred and fifty to three hundred spacecraft at the end of their life. The Soviet Mir station, for example, largely ended its existence in 2001, as did the remains of the Chinese space station Tiangong-1. In a few years, it could be joined by the current International Space Station (ISS), when it is no longer in service, its mission to be completed at the earliest in 2028. These space objects can create a marine pollution.

A “European Code of Conduct for the Mitigation of Space Debris” was established in 2004 and signed by the Italian Space Agency (ASI), the British National Space Center (BNSC), the German Space Center (DLR), the French Space Agency (CNES) and the European Space Agency (ESA). This Code of Conduct clarifies and improves the mitigation measures of the IADC, the Inter-Agency Space Debris Coordination Committee created by NASA, the European Space Agency, the Russian and Japanese space agencies in 1993. This code defines the methods of design and control of spacecraft that are likely to reduce the production of waste. A space waste manager must be designated for each project. He must take care to minimise the damage to the environment when the spacecraft returns to Earth.

For example, fuels must not release particles larger than ten microns into outer space; the design of the devices, their materials and accessories must not generate waste greater than ten microns during the orbiting phase; the return to Earth of a spacecraft must not produce harmful effects on the terrestrial environment, particularly in the radiological, biological and chemical fields. Compliance with this Code of Conduct has been mandatory since April 1, 2008 and the European ATV program, although launched before its entry into force, has applied its recommendations. If the project cannot comply with the objectives of the Code of Conduct, this non-compliance must be justified and recorded. The propellants used as fuel for launchers are often polluting. Some debris falling from their orbit can be dangerous; some satellites carry toxic or radioactive materials, which are not necessarily consumed when crossing the Earth’s atmosphere. An example of this problem is the Kosmos 954 satellite, which used a small nuclear reactor; when it fell on January 24, 1978, it disintegrated over the far Canadian north, dispersing its debris there.

The European Space Agency (ESA) is thus working on the design of a space cargo ship that can carry out a fully controlled re-entry of the atmosphere and a smooth return to Earth using parachutes to recover valuable scientific equipment and waste. In the medium term, the ambition of the European Space Agency (ESA) is to develop and implement vessels capable of capturing space waste.

Contrary to what might be inferred from the use of this area as a space debris cemetery, the biggest source of pollution in this place does not come from this rubble. A study has shown that this region of the South Pacific Ocean has become an open-air plastic dump, where fishing lines and fragments recovered from ships or the coastline float. Because of the rotating current, this debris stagnates and eventually disintegrates into tiny particles. During the last Volvo Ocean Race, the samples taken showed the presence of twenty-six micro-plastics per cubic meter of water. The most isolated place on the planet is also one of the most polluted, and it is due to the debris rejected by humans due to the displacement of plastic waste rejected by civilisations.

While the law banning the use of single-use plastic was voted in France for only 2040, reports, such as this one, are cold in the back and prove that our consumption of plastic is such that this toxic material is found en masse in the most distant places from all civilisation and all humanity. This is what can be said concerning Marine pollution caused by space debris.

This article was written by Solène FAUQUEUX (Paris-Saclay).

The definition of actio popularis

Actio popularis” has its origins in Roman law where the weakness of the institutions then in place, notably the police and magistrates, allowed its emergence. The concept of actio popularis was also developed at a time when the border between private and public law was still blurred. For this reason, the actio popularis has constituted a sort of intermediate category, between public action and civil action.

In Roman law, actio popularis was defined as “A legal instrument allowing any citizen to denounce before a judge facts relating to public order or public property”. Thus, the actio popularis was characterised by the attribution to all Roman citizens of the right to defend collective or common interests in court. No particular attention was paid to whether or not the Roman citizen invoking the actio popularis was directly injured. In other words, the latter did not need to act selflessly; he could well invoke actio popularis in order to protect his personal interests, provided that his action also served to protect the common interest. Ultimately, the Roman actio popularis recognized a kind of solidarity between the interests of the community and the interests of the individual.

If certain analogies can be drawn between the Roman actio popularis and what is today known as the actio popularis in international or domestic law, it is nevertheless necessary to distinguish them.

According to French François Voeffray, author of “Actio popularis or the defense of the collective interest before international courts”, three main elements should be brought together to bring an actio popularis before an international court. These three elements include the applicant’s formal right of access to the court concerned, the existence of a title establishing appropriately the jurisdiction of the court seized in relation to the dispute in question, and the possession by the applicant of a quality to act in the general interest.

However, in international legal thought, differences of opinion can be observed regarding the use of this mechanism, ranging from the complete denial of actio popularis to its full recognition and application in judicial protection. In fact, the acceptance of actio popularis comes up against the development of the international legal order which generally tends to orbit the State. The International Court of Justice is a perfect illustration of this problem since it leaves the possibility of being a party to a dispute before it only to the States.

In international law, there has so far been only one definition of actio popularis that can be found in the South West Africa case which occupied the International Court of Justice from 1962 to 1966. In this case, Liberia and Ethiopia wished to question the apartheid policy of South Africa in the former South West Africa (Namibia). However, the Court had opposed in 1962 the use of actio popularis, claiming that the applicant States were not entitled to act since none of their subjective rights had been infringed. On July 18, 1966, during the second phase of the trial, the Court declared the action inadmissible on the ground that no damage had been suffered directly by Liberia or by Ethiopia.

In the words of the International Court of Justice in the 1966 judgement, the actio popularis would constitute “A right for each member of a community to bring an action in defense of a public interest”. It recalls, however, that “While some systems of domestic law may know this concept, international law as it currently stands does not recognise it and the Court cannot see it as one of the main general principles of law mentioned in Article 38, paragraph 1 (c) of its Statute”. The International Court of Justice therefore does not prohibit this type of action but reserves the recognition of its existence to casuistry, when this is expressly provided for. This definition of action popularis proposed by the International Court of Justice has been strongly criticised and often described as incomplete and restrictive. It must be noted that the international legal order has been drawn up in such a way as to favour the defense of individual interests.

In Europe, an attempt to introduce actio popularis into national law relating to environmental issues was made through the adoption of the Aarhus Convention. Article 9, paragraph 3, of the Convention requires each State party to the Convention to ensure that “Members of the public may initiate administrative or judicial proceedings to contest the acts or omissions of individuals or of public authorities going against the provisions of their national environmental legislation”.

States are gradually becoming aware that environmental problems affect them all more or less directly. One solution could be to have a mechanism enabling one or more States to seize international jurisdiction in the name of a common interest in a healthy environment, recognized at the Stockholm and Rio Conferences. The chamber specialising in environmental law has never been used, while recourse to an actio popularis could provide a solution to a growing problem. But for many, the concept still lacks clarity.

Internal legal orders, like the international legal order, have also been built around the individual. The parties act only to defend their own interests, and the potential benefit to the others is indirect. However, in countries where the actio popularis mechanism exists, it undoubtedly contributes to the protection of human rights, the environment, economic and commercial law as well as to the development of practice and legal thought.

Indeed, various countries have incorporated actio popularis into their legislation, although its influence is often relative. Thus, Belgian law accepts actio popularis under the term “Action of collective interest”. However, the civil chamber of the Brussels Court of Cassation specified in a decision of October 5, 2001 that “To be admitted to court, you must have been directly and personally injured in your own interests”, before adding that “Collective action is not allowed in our law, except in rare exceptions provided by law”. The role played by actio popularis in Belgian law is therefore marginal.

In Hungary, actio popularis had been recognized in the Constitution and the Law on the Constitutional Court in its version in force between 1989 and 2011. Thus, article 32 / A (3) of the Hungarian Constitution specified that “The procedure before the Constitutional Court (could) be initiated by anyone, in cases defined by law”. This short provision thus indicated that the procedure for the a posteriori review of constitutionality of a legal rule or other legal means of state administration could be initiated by anyone. Despite the contributions made by actio popularis in Hungarian law, notably with regard to the development of coherent case law of the Constitutional Court, it was finally abolished in 2012 on the occasion of a profound reform of the Hungarian constitutional system. These examples tend to show that national systems, although more inclined to accept actio popularis than international law, face the same reluctance and the same difficulties.

This article was written by Anna CIBERT (Paris-Saclay).

The history of space elevators

For this new Space Law article on Space Legal Issues, let us have a look at the history of space elevators. The goal for a satellite is to gain altitude above the Earth’s surface, a lot of altitude, and to stay there. So we basically want to go up, get out of the atmosphere, reach the heavens and have a quiet life of observation, communication and science; hay of all these complex and expensive rockets and large machines, expensive and energy-consuming, it would suffice in theory to climb on an ad hoc structure until the good altitude.

The great Newton understood this: in his drawings of 1687 presenting the principle of satellites, he was already drawing his sidereal object horizontally from a hypothetical mountain some two hundred kilometers above sea level, with sufficient speed for the point of fall to exceed the antipodes (Principia Mathematica). Unfortunately, such natural headlands do not exist on our planet, so we have to build them.

The promoters of space elevators generally do not fail to mention the first published concrete attempt, that of the Tower of Babel. Literally “The Gate of the Gods”, it was a ziggurat, a two-story temple-tower, supposed to allow the Babylonians to reach a sacred domain where they would find their supreme god, who lived in the highest heavens. The business failed for the reasons we know; the tower could not have climbed high anyway, the construction technique used then, based on molded bricks baked in the oven with bitumen as mortar, not having sufficient mechanical characteristics to exceed a few hundred meters altitude.

The idea was lost for several centuries until the visit of Constantin Tsiolkovsky (yes, the one who established the rocket propulsion equation) in Paris in 1895, where he had a real revelation when he saw the Eiffel Tower. A brilliant engineer, he understood both the revolution brought by metal construction (the Tower was in fact a demonstration of this new technology), and the distribution of mechanical loads through a trellis, the weight of an element being supported by several other elements below, following the characteristic shape of the Eiffel Tower, widening downwards along a logarithmic curve. He exhumed the idea of ​​a tower, carried towards the heavens, and published following this visit a fundamental work, Dreams of the Earth and the Sky, “experiment of thought” according to his expression, in which he introduced several of basic concepts of astronautics. He imagined a gigantic tower, placed on the equator, along which an “astronaut” would gradually climb. As you climb, the two forces acting on the explorer vary:

1. Earth’s attraction, first, decreases like the inverse of the square of the distance to the center of the Earth: by doubling this distance, this force is divided by four, by multiplying this distance by one hundred, and so on; this force of attraction is of course directed towards the center of the Earth;

2. The centrifugal force, then, due to the rotation of the Earth; this effect, well known to pilots driving at high speed in a turn for example, increases with the distance to the center of the Earth for a given angular speed: by doubling this distance, this force is doubled, by increasing this distance tenfold, it is also increased tenfold; this centrifugal effect, as the name suggests, tends to move the subject away from Earth.

During the climb, the apparent weight of the traveller, the sum of the Earth’s attraction and the opposite centrifugal force, thus tends to decrease. Then comes a place on the climb where these two forces exactly offset each other. Our subject is no longer subjected to any force and is then in weightlessness; it keeps its speed of rotation around the Earth and rotates freely, always staying at the same altitude, called “geostationary altitude”, and always vertical to the same place. Tsiolkovsky calculated the geostationary altitude for the Earth, about thirty-six thousand kilometers, as well as for the five other planets identified at that time and for the Sun. He also explained that if our traveller continues to climb along the tower, the centrifugal force will become preponderant, tending to send it into space. He finally calculated the altitude necessary to be spontaneously sent to the Moon and to Mars. He had no idea, however, of using this singularity for satellites; the credit for this invention goes to Arthur C. Clarke, who in 1945, proposed the use of the geostationary orbit, often referred to as the Clarke orbit, for communication satellites.

The combination of this theoretical vision and modern construction techniques was then proposed in 1960 by a young engineer from Leningrad, Yuri Artsutanov, in an article in the Sunday supplement of Komsomolskaya Pravda, which remained completely unknown until 1967. He imagined a gigantic tower, still on the equator, rising above the geostationary altitude, built on the same principle as the Eiffel Tower, a sort of cone very flared down to distribute the formidable weight of the tower; he adorned it with the pretty name of “Paradise Funicular”.

Artsutanov knew how to calculate well, and unfortunately very quickly understood that such a tower was mechanically impossible, even with the best steel known at the time: the difficulty indeed comes from the fact that the materials work in compression, each element resting on those below; however, the materials have only low compressive strength, about ten times less than tensile. He then proposed to build the tower upside down, the flared part at the geostationary altitude and the tip down, in order to make the materials work in traction, by extending the tower well beyond the geostationary altitude in order to keep the overall center of gravity in the right place.

The idea was almost perfect, but came up against the pitfall of the general dimensions of the structure: even with the best steel known at the time, the flaring necessary for the structural strength of the tower was simply a matter of fiction. For a simple cable with a diameter equal to that of a hair on the surface of the Earth, capable of supporting half a kilogram of sugar on Earth, it would have required a diameter in geostationary greater than that of the Earth… The idea of ​​space elevators went back in the boxes for some time.

It emerged in 1967 under the initiative of a group of American oceanographers, led by John Isaacs of the Scripps Institution of Oceanography in La Jolla, California. These researchers, who were undoubtedly trying to diversify their activities, were very familiar with operations using very long cables to probe marine pits; in their publication in the journal Science, however, they recognized that it was necessary to speak of cables three thousand times longer than those they had used to probe the Marianas pit (eleven thousand meters).

Their contribution was essential because they proposed the elevator deployment scheme still in force today: from a large satellite in geostationary orbit, an extremely thin cable, therefore light, would be deployed simultaneously over and over underneath to keep the center of gravity unchanged; moreover, as soon as this cable arrives at the surface of the Earth, it would be hooked to its anchor and would be used to assemble the first “cabin” with a second cable to reinforce the first. By going back and forth, the final cable would finally be robust enough to be used operationally to mount payloads.

The primordial question of the material to be used was approached elegantly although briefly with the proposal to use quartz, graphite or diamond: their first cable, half thinner than a hair, capable of supporting a mass of three and a half kilograms on Earth, thus weighed only half a ton. The concept sinned on two aspects however: the first, micro-cable was far too thin, and would have been cut instantly by an impact of micrometeorites, microscopic dust falling on Earth at speeds of around seventy kilometers per second; moreover, but as Arthur C. Clarke points out, the diamond price being what it is, half a ton represents a pretty investment for the first cable…

The entry into the modern era of the space elevators or orbital towers, as the concept was called then, is undoubtedly the work of Jerome Pearson, American engineer then working for the flight dynamics laboratory of the U.S. Air Force in Ohio, colleague and friend of the International Academy of Astronautics (IAA). He published in 1974, in the prestigious IAA journal Acta Astronautica, a comprehensive technical review of the subject entitled “A satellite launcher using rotational energy from Earth”. Admittedly, his idea had difficulty in being accepted and he had to fight five years before making accept his paper, but thanks to his initiative, the concept could be very widely disseminated, discussed, criticised, conspired and ultimately recognized.

In his publication, Jerome Pearson explains all the equations governing the space elevators and establishes the precise theoretical form that could be used, depending on the materials considered. It establishes that the total height of the tower must be one hundred and forty-for thousand kilometers, that is to say nearly forty percent of the Earth-Moon distance, and shows that one can then, starting from the end of the cable, reach any point of the Solar System, or even completely escape it. It calculates the cable’s first oscillatory modes, its natural vibration frequencies, a bit like a piano string, and deduces the theoretical speeds to be adopted for the cabins serving the elevator. It also discusses the behaviour of the cable subject to weather conditions in atmospheric zones and describes what would happen in the event of a cable break. Finally, he identifies the two ideal geographic zones for the construction of the cable, zones of relative stability with respect to the orbital disturbances generated by the Moon and the Sun: the two gates should be located on the equator at the right of Sri Lanka, or the Pacific, west of the Galapagos. Unfortunately for him, he still lacks the miracle material that would allow him to remain within reasonable dimensions, and Jerome Pearson concludes his article by indicating that it would still take twenty-four thousand flights of a hypothetical Space Shuttle thirty times larger than the Space Shuttle for complete the construction of space elevators.

The latest actor in the historic space elevators saga is the novelist Arthur C. Clarke. Having read Jerome Pearson’s article, he maintained correspondence with him for many years in preparation for his novel “The Fountains of Paradise” published in 1978. This fascinating book tells the story of construction of the Tower of Stars on the island of Taprobana, in fact Sri Lanka. The engineer in charge of the project, Vannevar Morgan, famous in particular for his suspension bridge over the Strait of Gibraltar, has a revolutionary material, “almost invisible thread in pseudo-mono-dimensional continuous diamond crystal”; we’re almost there… Arthur C. Clarke addresses in his novel all the problems associated with such an enterprise, like the expropriation of the monks owning the premises to the funding difficulties. It is worth noting that Arthur C. Clarke has since settled in Sri Lanka, at the point closest to what he calls “The Stargate”, until his death in 2008.

At first glance, space elevators make it possible to imagine a revolution in access to outer space, very easy and inexpensive: it suffices to take the payload, potentially inhabited, aboard the cabin and press on the destination button. In reality, the shoe pinches in many ways. First, space elevators provide access only to the geostationary orbit; indeed, any point on the lower altitude cable moves more slowly than the speed that would be required to stay in orbit. Orbital speed decreases with altitude while the speed of training due to the cable increases with altitude. As a result, any separate object below GEO has a speed too low to remain in orbit, and falls back to Earth. Furthermore, these orbits are, by definition, equatorial; it is not possible from the cable to aim for an inclined orbit, for example, flying over the poles. This greatly reduces the interest of the elevator. Fortunately, there remains the prospect of using it to reach much more distant targets, beyond GEO, like the points of Lagrange, the Moon, Mars, and beyond. For that you have to climb to the right altitude: forty-five thousand kilometers for the Moon, fifty-seven thousand kilometers for Mars, ninety-six thousand kilometers for Jupiter and the asteroids, and above all, wait for a perfect phasing between orbits to go in the right direction.

Sending humans is also a problem. Indeed, assuming that there is a market for space tourism in geostationary orbit, the speed limit to around two hundred kilometers per hour of the cabins on the climb, dictated by the disruptive force of Coriolis, makes the cruise last longer than a week, with little to do. The cabin should also be well armored to cross the Van Allen radiation belt, a zone of energetic charged particles, between two thousand and six thousand kilometers in particular, a day of strong radiation. The space elevators would therefore serve a niche market composed almost exclusively of geostationary satellites, with a few planetary exploration missions.

The second point which is a bit fishy is the financial balance sheet of the system. The promoters of the space elevators estimated the cost of development at six and a half billion American dollars, comparable to the cost of development of one of the new generation reusable launchers studied around the world. Other authors, more pessimistic or realistic, have evaluated the cost of implementing the system at forty billion American dollars… A glaring feature of the space elevators is the swarming of ideas each more innovative than the other that this concept inspires. In fact, there are so many teams today who believe in the future of space elevators that we are observing the creation of very many start-ups of all kinds. Maybe one day will we see space elevators rise to paradise. That is what can be said concerning the history of space elevators.

What role for Europe in the return of Americans to the Moon?

Europe is the continent of inventors and explorers. Starting five hundred years ago, European scientists developed a large number of machines, processes and objects that we still use in our daily life. In the same period, the navigators, still European, furrowed the oceans of our planet and mapped it. Europe must therefore not forget its legacy of explorers.

The United States of America sets course for the Moon, to send astronauts there. NASA’s ARTEMIS program plans to bring astronauts to the lunar surface in the 2024s. Pending this landing, two intermediate stages are planned: ARTEMIS-1, where the ORION capsule will orbit the Moon without crew in 2021, followed in 2022 by ARTEMIS-2 with a crew of four astronauts. It will therefore be the ARTEMIS-3 mission in 2024 which will return humans to the lunar surface, more precisely to the South Pole. It’s not just about the man’s return to the Moon, as the Trump administration has emphasised that a woman will also be among the first crew.

The new GATEWAY space station is part of this strategy. GATEWAY will serve as a “base camp” for lunar excursions, quite similar to a mountain base camp which is used to rest before an ascent. From GATEWAY, the astronauts will assist their colleagues who are on the lunar surface. They will be able to pilot robots to explore the environment and search for resources. This new orbital station will also serve as a telecommunications relay allowing to establish a link between instruments and robots on the surface, even on the hidden side (indeed, currently, only the Chinese Space Agency has the capacity to communicate with the face hidden from the Moon, thanks to its satellite-rover duo YUTU and QUEQIAO). GATEWAY will be much smaller than the space stations ISS and MIR in Earth’s orbit. It will operate in an environment very different from that of Earth’s orbit stations. Indeed, located in lunar orbit, it will not be protected by the terrestrial magnetosphere. As a result, it will be fully exposed to phenomena and dangers linked to deep space. Radiation levels are higher than those on the ISS, plasma and material flow are not attenuated by the terrestrial environment. GATEWAY will allow the development of technologies and operations necessary for long-term missions under these specific conditions. In this context, living and working on this station will prepare astronauts for missions on the lunar surface, but also for missions to the planet Mars. Instruments installed outside the station will collect unique data.

Thus this GATEWAY station becomes the SAS for future manned and robotic missions to deep space. To date, Europe is providing significant elements and functionalities for the development of this new space station. And these developments and this expertise can also serve as a European contribution for future ARTEMIS missions. However, the role of Europe in this return to the lunar surface is not yet well defined and a strong commitment from Member States is essential to ensure that we have a European seat in this adventure and guarantee that a European astronaut will be the next to walk on the Moon after their American colleagues. Europe as a continent of explorers deserves this place.

China, Russia, India, all have conquered our celestial neighbour, the eight continent. It is essential that Europe also plays an important role in this new race. A budgetary insufficiency cannot be an excuse for a European hesitation in this initiative. Indeed, nations like the Republic of India are setting up an ambitious manned flight program, and this with a space budget much lower than that of European agencies. There are even private companies in the United States of America that are setting up the infrastructure to send astronauts to the ISS. Europe has more resources and expertise than an American company, and a reflection on the European industrial strategy will obviously be necessary: ​​new methods must be used, SMEs, start-ups and newcomers in the space sector must be massively supported on the “Old Continent”, to enter this new Space Race of the Third Millennium. Future missions will not aim to plant flags. They are intended to secure space and resources for a variety of new European industries to come. They must make it possible to reverse the brain drain, this current flight of researchers and engineers towards countries with more ambitious space objectives. They must inspire our next generations. The aerospace sector is one of the pillars of French and European industry, we have no right to miss this launch.

In a somewhat ironic way, one could say that the Apollo program was a “successful failure”: while it ended the space race in the framework of the Cold War, Apollo did not allow to establish a permanent human presence on the Moon. Fifty years after Neil Armstrong’s first step, only twelve men have walked on the Moon. The government of President Donald Trump has established new momentum and acceleration in this race to the lunar surface with the ARTEMIS Program. The European Space Agency and its Managing Director Johann-Dietrich Wörner have been defending a sustainable return to the Moon for years. The only way to arouse the interest of potential investors in a lunar activity is to bring various civil society actors, researchers and industrialists to these missions. Returning to the Moon should not be the business of a single agency, and this is where Europe can pave the way. While the United States of America is preparing to bring an American to the Moon, Europe should work, in parallel, as a partner, to ensure a sustainable continuation of lunar activities beyond the first landing of ARTEMIS. This can be done by building a whole new industry in Europe focused on lunar activities and by supporting the ARTEMIS program with elements that can help make this return to the Moon the foundation for a permanent presence. Housing technologies, radiation protection, micrometeorites, dust, robotics, astronautics and ISRU (in-situ resource utilization) must be developed, and Europe must bring its unique expertise in this sector. These necessary expertise and their testing facilities, as well as demonstrators, already exist in Europe to deal with these problems.

At a time when a new lunar race is looming, limited to planted flags, in a context of changing global balances, Europe must show a sustainable alternative, scientifically, industrially and socially viable. It is important that our nation remains at the forefront of science, technology and exploration. The decision to race towards new goals will soon be taken; the long-term future of our continent will be decided in the upcoming months. Europe must keep its Explorer spirit.

The Universe, a zone of lawlessness

Is the Universe a zone of lawlessness? Developed during the Cold War, space law proved to be obsolete, while private companies entered the race and technological means have considerably evolved. Resource exploitation, waste management. The legal framework of the celestial conquest needs to be rethought. When Steven Mirmina discovered at the same time as the whole world the breathtaking images of the Tesla car that Elon Musk had just sent into orbit, in February 2018, this Professor of space law at Georgetown University felt somewhat distraught. He felt, like many, a certain wonder at an operation “so perfect” that it was difficult to play the game of the seven differences between the computer images and the real images of the launch of the rocket. But there was also a good deal of exasperation.

This spacecraft, the Tesla Roadster, was not going to measure anything, observe anything. It was a grand publicity stunt, at the cost of “intentional pollution” of outer space. The radio installed on board the imitation vehicle, and supposed to play the song Life on Mars? by David Bowie was too much detail: “There is not even a sound in space” said the Professor. But as a lawyer, Steven Mirmina quickly returned to a more technical examination of this unprecedented case: “Have any laws been broken?” he asked himself. No matter how hard I look, I haven’t found any. “The investigation was not as long as one might think”.

The various treaties that constitute International Space Law are about thirty pages long. They were all developed and ratified between the late 1960s and the late 1970s, in the context of the Cold War. “Space law was created for a world that is no more” said Matthew Stubbs, a Professor of law at the University of Adelaide in Australia. A whole community of space law specialists, mainly based in the United States of America, Canada, Australia and the Netherlands, is currently in turmoil. The “new space race” makes it urgent to clarify or even reform an obsolete legal framework, to regulate an area in which the economic landscape and technological means have changed completely, in just half a century.

The founding text, concerning the Universe, a zone of lawlessness, the 1967 Outer Space Treaty, was ratified by almost a hundred countries, including the major space nations, in 1967. It was signed in triplicate in London, Washington D.C. and Moscow. Space was still the preserve of the United States of America and the Soviet Union, engaged in a frantic race to prove their technological superiority. The treaty therefore established basic principles, with the major concern of not making space a playground for the strange war happening on Earth. The text states that outer space and celestial bodies are “the prerogative of all humanity” which can be “explored and used freely by all States” and “exclusively for peaceful purposes”. It specifies that space cannot “be the object of a national appropriation by proclamation of sovereignty, nor by the means of use or occupation”. The following treaties only reinforce these principles: that of 1968 adds that astronauts must be regarded as “envoys of humanity”, to whom is established a duty of assistance. A 1972 convention speaks of “damage” and “reparation” in the event of damage caused by space objects. In 1979, the Moon Agreement (ratified by only eighteen nations) oversaw the removal of natural resources “for peaceful purposes” and “in reasonable quantities”, encouraging States to share their samples as part of their scientific research.

These articles did not predict that barely fifty years later, space exploration would be within the reach of private companies and even billionaires around the world. However, this evolution implies a complete paradigm shift. We believed the space similar to the air we breathe: a good shared by all without being the property of anyone, a resource that everyone could enjoy at will, and this in harmony, since the fact that I breathing does not prevent others from breathing. But space is rather to be considered as a vulgar commodity, as we already know a lot on Earth, recalls Steven Mirmina: “For example, a little bit like the oceans” he specifies. The high seas may be vast, but when many ships cross it, their freedom of movement is affected. And this fish that a boat came to catch, nobody else can put in its net.

The architecture of space law was never thought to address the issue of commercial exploitation of resources” says Professor Matthew Stubbs. The texts prohibit any appropriation of the celestial territory but are very succinct on the question of the use of resources. The United States of America was already engulfed in this breach in 2015 and Luxembourg in 2017 (the United Arab Emirates are preparing to follow them). These two countries, yet signatories to the space treaty, authorise the private companies based on their territories to exploit mineral resources in outer space, via a legal sleight of hand that Matthew Stubbs summarises thus: “Certainly, the 1967 Outer Space Treaty forbids the appropriation of the resources located on the celestial bodies. But technically, the text does not prevent them from extracting the resources and then appropriating them. It’s as simple as that”. For now, companies have not yet tapped into lunar resources, but it is a very clear objective for some of them, in search of rare metals (to make high-tech components) or certain gases that could be transformed into fuel… a bit like the Moon and other planets are becoming gas stations.

The rest of the story interests the Professor even more. “Even if we agreed to say that we can establish a mine in space, it would lack the entire legal framework allowing it to rotate without creating conflicts or an environmental disaster”. Space then bumps into the thorny issue of regulating the exploitation of natural resources. It has already arisen on our planet in connection with land and seas, and even international waters which, located more than two hundred nautical miles from the coast, do not belong to any country.

Couldn’t outer space law, concerning the Universe, a zone of lawlessness, borrow “simple” land laws to apply them outside of its atmosphere? There is the model that regulates fishing: anyone can fish in international waters, it comes down to appropriating the fish without appropriating the ocean. “This model poses the environmental problem of overfishing, and this will also be the case in space” said Matthew Stubbs. Either way, it doesn’t really solve the problem, because behind the idea that there is fish for everyone is in fact an imbalanced allocation of resources. Not everyone has the same access to fish and the Moon.

What about the model that regulates the exploitation of the seabed? Under the control of an international authority, any country can exploit the seabed in international waters, but the profits must be shared among all nations. “This paradigm of collective ownership would be very faithful to the founding principles of the Outer Space Treaty since it indicates that space exploration must benefit everyone” adds Matthew Stubbs. But it has the disadvantage of discouraging investors. At the University of Leiden in The Netherlands, a team of researchers is working on a compromise model, which would involve space players to share scientific and technological discoveries, but not the profits.

Whatever solution is adopted, the goal is not to end up in space with a “tragedy of the commons” that we are already experiencing on Earth, recalls Professor Steven Mirmina. It refers to the collective phenomenon of over-exploitation of common resources, highlighted by Garrett Hardin in 1968. The theory of this American ecologist tells the story of a fodder field common to an entire village. Each breeder takes as many animals as possible to avoid using his own field and to prevent competitors from taking advantage. The blinders well placed on the temples, each follows its own interest, all at the expense of the common good. Because the field quickly becomes a pool of mud where nothing grows for anyone. The path to the mud pool could also become impassable if space law does not change. Because the current treaties have not anticipated how worrying the pollution from space debris will become. The only international regulation in place consists of rules of good conduct, none of which acts as law.

Worse yet, argues Matthew Stubbs concerning the Universe, a zone of lawlessness, the 1967 Outer Space Treaty would hinder the active removal of debris, even if we had reliable technology: “The 1967 Outer Space Treaty provides that each country retains ownership and control over its satellites; if you want to desorb a piece of debris, you must obtain authorisation from the country that sent it into space. It’s a significant barrier! What happens if there is disagreement? If this debris is not identifiable, or if it is not registered in the name of anyone?” It would be in any case wiser, according to him, to establish a legal framework for this new field of activity: “As just about everything in space technology, the tool is duplicative” says Professor Matthew Stubbs. You can use it to desorb space debris, but also to capture a satellite you don’t like.

Michelle Hanlon, a Professor of space law at the University of Mississippi, would even like to see some debris in the law: those satellites that are part of our history. Neither did the Cold War treaties provide for this. The history of space exploration was yet to be made, and the researcher does not blame the first legislators for having seen a little short. “The 1967 Outer Space Treaty is the Magna Carta of space law, it will never be obsolete! We will continue to teach it, even in centuries and centuries”. In centuries and centuries, the Tesla Roadster may still be in orbit. While the Earthlings questioned its legality, the spacecraft had time to complete its first complete orbit around the Sun. The mannequin, still installed on board, continues its ride. Has he ever “listened” to Life on Mars? more than two hundred thousand times. This is what can be said concerning the Universe, a zone of lawlessness.

The doctrine of clean hands in Public International Law

Fraus omnia corrumpit”, a Latin locution, is a founding principle of law, and is the founding of the doctrine of clean hands, also known as the “dirty hand doctrine”. It literally translates into: “The fraud corrupts everything”, meaning that the fraudster shouldn’t draw any benefit from a situation where the law is used for something it forbids. The claimant must have clean hands and has to fully comply to the rules in order to see the claim accepted. It also include the Latin saying that: “No one can take advantage of his own wrong”, which has kind of the same consequences. The idea is to prevent a litigant from diverting the law in order to obtain a specific result looked for. As a matter of fact, legislation is sometimes offering the wrongdoer something wanted, by cancelling the effect of a bilateral obligation, for example. In these kind of situation, the doctrine of clean hands can ensure an asymmetrical cancelling, to be sure that the fraudster doesn’t get an advantage from the fraud.

A fraud isn’t necessarily something illegal, but is at least unethical, and should be punished on the basis of equity. That’s why this notion is linked to that of good faith. The defendant has the burden of proof, and must show that the plaintiff is hijacking the law to do something the spirit of the text intended to forbid. Therefore, the doctrine of clean hands is a defense that can be raised against the plaintiff who committed a fraud. It can neutralise a demand that would end up in something morally reprehensible or unfair. It punishes the inappropriate conduct of the plaintiff who shouldn’t obtain what’s asked for if the judge follows the letter of the law.

This doctrine of clean hands can be used offensively by the plaintiff to claim another equitable remedy that the one enforced by law. Good faith (bona fides in Latin) describes the sincerity of a party in a trial. Sometimes, this party has broken the law but not on purpose, and the judge can take this in account. That’s the kind of case where the judge can decide to settle the conflict in equity instead of at law. The judge decides to move apart from the strict application of a text because the result would be unfair. It can even result in a contra legem decision if it’s necessary to make the party in good faith successful.

Public International Law is a very specific field of justice where every legislation is an agreement between two or more States. In this area of law, a State can’t be forced to anything except what it accepted to submit to, through internationals conventions. If a judge or an adjudicator can’t find any treaty to rely on, it must be decided in equity or based on the jus cogens, a set of international customs which create a code of practices, guiding parties to find the best way to settle a conflict. Because of that, most of Public International Law rules are considered as soft law, quasi-legal texts or customs that don’t have any legal binding force, but that most of the international law subjects accept to observe, like a code of conducts. Since this field operates largely through consent, equity has a very important function in Public International Law. And thus, good faith and the doctrine of clean hands find their preferred field in this branch of law.

We will now examine the different ways a party can get its hands “dirty”. As a matter of fact, there is many behaviours that can be punished by this rule. Bad faith can take many forms, like the fact, for a party, to withhold certain information that would be useful for the other party. Good faith is an obligation that is implied in any contract or convention. If one of the contractor subverts a rule of the convention, it can justify the conviction based on the fact that the contractor has dirty hands.

This doctrine can only be used to exclude some remedies, even if it’s often presented as a way to exclude all remedies for the dishonest claimant. It only affects equitable remedies, meaning that, a contrario, it has no effect on remedies enforced by law. These ones survive the dirty hands of the claimant, as long as it has no effect on equity. Therefore, a bad behaviour from a party doesn’t always result in the reject of the claim the party made. The claim that is rejected on the foundation of the doctrine of clean hands must have a close connection to the unfair behaviour. Equitable remedies that can be refused to the claimant are injunctions, laches (abuse in the delay to demand a remedy), equitable damages, and constructive trust. Judges don’t take care of any depravity; justice isn’t meant to enforce moral views in any conflict. Life of affairs and good commercial operations often imply not to say everything to the other party. Moreover, bad faith can never be presumed, it must be proven by the party that allege it.

To illustrate the boundaries of this principle in Public International Law, we can recall the Diversion of Water from the Meuse Case: in this affair, the subject of the conflict was that Belgium had diverted the course of the Meuse River to construct a canal, in violation of the treaty signed at The Hague on May 12, 1863. Belgium said before the International Court that the using of the water from the Meuse River was done following the rules, but the Netherlands said the opposite. The court ruled that even if water was taken from this river inconsistently with the treaty of 1863, it’s not sufficient to condemn Belgium, since they could have did it in good faith, which means in addition to the misconduct, plaintiff must prove that the defendant knew this acting was unfair. Bad faith implies that the accused party was conscious of the wrongdoing.

This is the big uncertainty when a party claims the doctrine of dirty hands, sometimes it will be impossible to prove that the other party knew the use of the law was unfair and caused prejudice to the other party, even if it seems obvious, since it’s not a written rule. The misconduct alone can’t establish the dirty hands and can’t be the base for a conviction or dismiss from the judge.

Even if this principle exists in most national legal orders, its application in Public International Law is still very controversial. Many international courts refuse to apply it. Its integration in the jus cogens is still uncertain. In a recent arbitration between Suriname and Guyana, it has been rejected because the application of this principle is too inconsistent. The rejection of this doctrine is rare, but its application also is, so it’s hard to decide whether it will reinforce or decline in the future. Either way, the maxim “No one can take advantage of his own wrong” won’t cease to exist since it’s a cornerstone of equity. However, the fact that no judge is constrained to apply such doctrine makes its development really uncertain.

This article was written by Maxime LE STER (Paris-Saclay).

The legal status of 3D printed food in outer space

Let us have a look for this new Space Law article at the legal status of 3D printed food in space. The first 3D printed steak has recently been grown and printed in the International Space Station (ISS). We will analyse the legal consequences of this innovation. Firstly, we have to determine if this food printed in outer space is a space object, to know which legislation will apply to it. Indeed, the status of space object is central in space law, to know which legal regime, and which liability will be enforced in case of damage caused by this item. Objects manufactured in outer space become more and more common, and 3D printing is now seen as a way to go beyond the boundaries imposed by the need of feeding the astronauts.

The first legal definition of space objects can be found in the 1961 general assembly resolution of the U.N., titled International cooperation in the peaceful uses of outer space. In this text, space object refers to any object launched by States into outer space. The 1967 Outer Space Treaty links this term to the notions of liability, registration, and a prohibition on the placement of weapons of mass destruction into outer space.

3D printed food refers to aliments manufactured from the most basic nutrients, to retrieve the taste, smell, and texture of the natural version, by a machine functioning like another 3D printer, except that the ink is eatable. It’s prepared in an additive manner, by layers, like a classical 3D object. 3D printed meat “ink” is grown in a Petri dish, from cow cells. With the right environment, conditions, and some nutritive substance, the muscle and fat cells taken from the animal via a biopsy develops itself until it’s big enough to be assembled, then eaten. Unfortunately, no astronaut from the ISS have been able to taste this space grown meat since it was immediately sent back to Earth for further experiment. Engineers behind this project want to be sure these steaks are entirely safe before astronauts eats it.

The development of such food would address the lack of diversity in astronauts’ meals and allow a better recycling of their wastes. Another benefit of this new way of cooking, and feeding astronauts, is that wastes are reduced to the minimum, and nutrients can be calculated very precisely to fit the human needs. Meals can be prepared with the same high requirements as the ones prepared on Earth to send in outer space. The goal is also to create an autonomous feeding system for long space travels, like a Martian mission.

Biotechnology is only at his beginning, and it’s already a major stake for space conquest. This 3D printed meat could be the first fruits of a whole new way of feeding astronauts. The classification of 3D printed food as space object shouldn’t be a big debate, if non-food printed objects are recognized as such. The only difference is the biological nature of what food 3D printers create.

The main issue would be to determine its launching state. The food printed in space is made from the printer, and the ink, which are space launched objects. Therefore, the food would be a space object too. We believe its launching State would be the one that manufactured and sent the printer in outer space, or its component parts, or the State from whose the astronauts or robotic instrument that installed the printed were sent. If the printer was made from materials coming from different launching State, or if the ink and the printer come from different launching State, it would be the one who played the biggest role in the manufacturing or the installation of the printer.

We could try to predict, based on space objects legislation, what would be the legal consequences for 3D printed food which poison the crew of a space ship or station. The object that caused the damage would be a space object, in all likelihood, but what if the user of the 3D food printer is from a different country than the ones who build it? And if an astronaut from another nationality took care of assembling the printer in space? Space is an international zone, so it would be difficult to link the liability to one State, or to draw out the liability of each one of the participating countries, since the printed object wasn’t sent in space, and can be created there with a joint effort of several nations. In any case, we can see that the nature of space printed object has an impact on which country can be considered as the launching State. Space legislation has to take this specificity into account, in order to determine the liability of a damage caused by this item.

The damages caused by a space object trigger international third-party liability, laid down by the Convention on International Liability for Damage Caused by Space Objects (entered into force in September 1972). The difficulty is that this Convention is mute about the case where a space object has been made by several countries. When two States set up a joint launch, both are severally liable for the damage caused by the launched object, therefore, we can deem that a printed object made by two or more Nations would follow the same principle, and would be severally responsible for it.

Nature of 3D printed food also create an issue. Since it’s not meant to last, its lifetime is limited. It’s complicating the situation, because a “space steak” could decay quickly and may be re-printed from the same material. If this recycled food contain germs that contaminate the astronauts, and force them to abort a mission, the liability could be hard to determine because the damage could find its origin in a previous printing, changing the nation considered as the launching state.

According to the Convention on Registration of Objects Launched into Outer Space (entered into force in September 1976), space objects must be listed in an appropriate registry. We can’t be sure that this obligation would remain if the object wasn’t sent, but assembled in outer space. It may be useful to create a new legal system for food printed into space, since they are not meant to last, or to be sent in orbit, but consumed quickly by the astronauts. It would be very cumbersome to force a space crew to register every piece of food printed into space. The registration of the 3D printer could be sufficient to ensure that the liability could be found, in the situation were this aliment would cause a damage.

For the time being, there is no food printed in space that is eaten by astronauts, but it’s obviously the final objective. Consequently, it would be useful to enforce a new legal regime for these specific space objects, to ensure that the development of this method isn’t restrained by the burdensome of a procedure created for object sent into space from the Earth, and which are meant to last for a whole mission.

Considering all these aspects, we can see that space legislation is still very immature and, therefore, incomplete about issues like the ones related to 3D printed food; we expect that the next treaties regulating these activities will give answers regarding the specificities of this field which will be both convenient and protective of the different actors. That is what can be said concerning 3D printed food in space.

This article was written by Maxime LE STER (Paris-Saclay).

The conditions for speaking of a State in Public International Law

In Public International Law, the State is defined by three constituent elements: a population, a territory and a governmental organisation. The population within the meaning of Public International Law consists of persons attached to the State by a legal bond: nationality. Nationality is defined by the International Court of Justice in its Nottebohm judgement of 1955 as a “legal link having at its base a social fact of attachment, effective solidarity, interests, and feelings joined to a reciprocity of rights and homework”.

The bond between members of a population is considered to be the right to be together and to want to be together. It has been the definition of the nation for the past centuries. Today, this is more in line with international law. Consequently, the right of people to self-determination is that of freely choosing the form of their political regime.

Territory, when speaking of a State in Public International Law, is defined by the fact that every State has in principle a territory delimited by borders with other States. A State has guarantees, like for example the “principle of territorial integrity” or “the principle of inviolability”. The State is protected by principles of Public International Law. State-territories can evolve. For example, France regularly renegotiates its borders for infrastructural reasons; this is particularly the case with the unfrozen Franco-German border located in the middle of the Rhine.

Governmental organisation within the meaning of Public International Law is defined as a set of political structures playing the role of political authority, that is to say that people are responsible for deciding for the whole territory; democracy being the best example of political structure to date. The only concern of Public International Law therefore remains effectiveness, that is to say the capacity of political authorities to control the territory.

If there is a lack of control in one country, there is a chance that it will spread to another country. This is what worries countries. So it is Public International Law that adds the condition of effectiveness. Whenever a country has troubles, Public International Law is worried because the conditions of effectiveness are not met.

However, the combination of these three elements is not enough to ensure that a State has a place in international society. Before being able to maintain international relations with other States, the new State must have been previously accepted as a State by the members of international society, that is, the other States. This kind of admission by the international community characterises its sovereignty and allows it recognition on the international scene. The emergence of new States can change the structure of international relations and the balance of power between different actors. The functioning of the international community may be changed. As such, States therefore have the discretion to recognise or not to recognise a new State.

When speaking of a State in Public International Law, there is therefore neither an obligation to recognise, nor a duty not to recognise for States, as recognized, for example, by the 1993 Arbitration Commission of the Conference for Peace in Yugoslavia: recognition “is a discretionary act that other States can perform at the time of their choice, in the form they decide and freely”.

There are therefore two opposing theses regarding “effective” recognition: the “declarative thesis”, on the one hand, that maintains that the conditions of State-formation have an objective character. From the moment it unites the three constituent elements, the State obviously exists, even if third States do not recognise it. Conversely, if an entity does not meet the three building blocks necessary for the formation of a State, it will not effectively be a State, even if it is recognized by a large number of countries as a State.

And, the “constitutive thesis” on the other hand, which maintains that recognition is necessary for the establishment of active legal relations between two States, that which recognises and that which is recognized. For the establishment and conduct of relations between the two States, recognition is therefore constitutive. It is the starting point for normal relations between the recognising State and the recognized one. Recognition is, in principle, a discretionary act of the State. Contemporary international practice, however, attempts to bring some limits by further orienting the appreciation of States. This diplomatic opportunism manifests itself mainly in three different ways; either the States will refuse to recognise a new State while the effectiveness of this new entrant cannot be objectively denied, or the States will recognise it late, or on the contrary, they will recognise it prematurely and even then, the constitutive conditions are not fully met.

Recognition is therefore either “express” or “implied”. It will be express when it is the subject of a unilateral act, as a declaration of recognition, and proclamation as such on the international scene, and it will be implicit, or even tacit, when it will manifest itself, for example not by an official declaration, but by diplomatic relations and a conclusion of bilateral treaties. However, because recognition has a relative effect, it therefore only obliges the States which have recognized the new State. It does not in any way oblige those who have not recognized the new State and which may refuse to maintain relations with it.

The recognized State may therefore, upon recognition, conclude treaties with States which have recognized it, accede to multilateral treaties, become a member of international organizations, make international complaints to international dispute settlement mechanisms, participate in joint votes, and to carry its voice in the same way as the other States having recognized it. Consequently, the conditions for speaking of a State in Public International Law therefore fall indirectly under the discretionary power of the States already present and recognized on the international scene, which may consider that the combination of the so-called constituent elements (population, territory and government) remains the intangible corollary to this recognition, or accept that such recognition is diplomatically and politically necessary for the future of everyone on the international scene.

This article was written by Soraya MOUHOU (Paris-Saclay).

The case of force majeure in space law

Force majeure clause is a provision in a contract that excuses a party from not performing its contractual obligations that becomes impossible or impracticable, due to an event or effect that the parties could not have anticipated or controlled. These events include natural disasters such as floods, earthquakes and other “acts of God”, as well as uncontrollable events such as war or terrorist attack. Force majeure clauses are meant to excuse a party provided the failure to perform could not be avoided by the exercise of due diligence and care.

In French positive law, the first paragraph of Article 1218 of the Civil Code requires the combination of three elements so that force majeure is characterised: an impediment to execution caused by an event beyond the control of the debtor (first condition), reasonably unpredictable at the time of conclusion of the contract (second condition), and the effects of which cannot be avoided by appropriate measures (third condition).

The U.N. International Law Commission defines it as: “The impossibility of acting legally is the situation in which an unforeseen event outside the will of the party invoking it, the makes it absolutely impossible to comply with its international obligation under the principle that no one is obliged to do the impossible”. The principle being, whoever justifies being forced by force majeure, escapes all responsibility. The case of force majeure in outer space can therefore only be conceived from the point of view of liability for damage caused by space objects and the consequences of such a situation. The 1972 Liability Convention (Convention on International Liability for Damage Caused by Space Objects) establishes a dual system of liability. First, Article I provides that a launching State has the absolute responsibility to pay compensation for damage caused by its space object to the surface of the Earth or to aircraft in flight. Second, Article III provides that in the event of damage caused, other than on the surface of the Earth, to a space object of a launching State or to persons or property onboard such a space object, by a space object of another launching State, the latter State is only liable if the damage is attributable to its fault or to the fault of the persons for which it must answer.

No exemption from liability is therefore provided for in the agreement if a natural disaster is the cause of the accident caused by the space object. The general feeling was that, by exonerating the launching State from its responsibility in such a circumstance, the effects of the principle of absolute responsibility would to a large extent be nullified for the purposes of the Convention. However, when it comes to space activities, certain aspects of the problem of responsibility acquire greater importance, in particular, cases of force majeure which are likely to multiply due to possible encounters with meteors, or as a result of a malfunction or the accidental stopping of on-board guidance devices. This question of exemption due to force majeure was therefore examined by the Committee on the Peaceful Uses of Outer Space (COPUOS) and its Legal Subcommittee, in connection with a proposal presented in 1965 by Hungary which mentioned “natural disasters” among the grounds for exemption.

Article VI of the Draft Agreement brought by Hungary proposed that: “If the damage has occurred on the ground or in the atmosphere, the exemption of responsibility can be granted only to the extent that the responsible State produces proof that the damage resulted from a natural disaster or from an intentional act or gross negligence of the State victim of the damage”. So, the sudden appearance of an asteroid or comet, could have been force majeure at the start of the space conquest, which is no longer the case today. Nowadays, it is possible to track down an asteroid or assess the regular trajectory of a comet. However, current scientific and technical advances cannot yet predict everything.

For example, Solar Flares are more difficult to accurately predict. The “weather” of the Sun is still difficult to predict in the long term. The activity of the Sun varies a lot and the solar cycles are irregular. A violent and unforeseen Solar Flare by astronomers, which would damage the equipment of a satellite, due to its electromagnetic disturbances, could be considered as a case of force majeure in outer space.

The explosion of a supernova could also constitute a case of force majeure. This would release a large amount of cosmic rays which could damage the electronic equipment of spacecraft. Such effects would be unpredictable, both in their magnitude and in their timing. The duration can be short or very long, depending on the intensity and proximity of the phenomenon. There is currently no spacecraft protection system capable of fully preventing equipment disturbances linked to such explosions.

Similarly, space debris among those present in Low Earth Orbit (LEO), not listed because less than ten centimetres in size, could cause damage to a satellite or even compromise a launch. If it is established that these debris did indeed cause the damage, force majeure may be claimed, insofar as it is impossible to predict the presence of these small debris. However, the company which would seek to assert this force majeure could be criticised for not having sufficiently protected its satellite, by shielding capable of limiting the damage linked to micro-debris. However, the use of such shielding remains marginal, since each kilogram of material sent into space is very expensive.

Finally, on the case of force majeure in space law, perhaps more imaginatively (although nothing is less certain), an alien spacecraft travelling at the speed of light (such as the Millennium Falcon, a fictional starship in the Star Wars franchise) could hit a satellite. Such an event would constitute a case of force majeure. The idea therefore of taking into account this fortuitous risk to release the responsibility of the States is strictly necessary all the more, that it is necessary to take into account the probability of enormous damages amounting to billions and of which, consequently, no State would want to assume full responsibility and no consortium of insurance companies would agree to cover. That is what can be said concerning the case of force majeure in space law.

This article was written by Soraya MOUHOU (Paris-Saclay).

What is the nationality of someone born in space?

What is the nationality of someone born in space? On the one hand, “nationality” is a multifaceted concept relating to the membership of one or a group of people in a cultural or political nation determined or possessing the will to exist. On the other hand, it is defined as legal proof of membership in a State. If the concept of nationality is not automatically confused with citizenship, these two terms can also be used as synonyms of one another, in everyday language as in official documents. “Citizenship” is the fact for an individual, for a family or for a group, to be officially recognized as a citizen, that is to say a member of a city having the status of city, or more generally of a State.

Outer space begins at an altitude of one hundred kilometers, sixty-two miles or three hundred and thirty thousand feet above sea level: the Kármán Line is the most widely accepted demarcation point for the start of outer space, named after Theodore von Kármán. Anything above this altitude would be considered above the airspace of a nation and in the international arena of outer space.

Animals and insects took part in the space conquest long before humans. Their characteristics and legal status allowed these “pioneers” to create the conditions necessary for the sending into space of astronauts, Yuri Gagarin, the first of them, on April 12, 1961 (first human flight in space by a Soviet cosmonaut).

At that time, space was the exclusive playing field of space agencies, two superpowers that were the United States of America and the U.S.S.R., and their respective allies. After the era of space conquest, which marked the end of the Cold War, a second era saw the number of space agencies increased as well as the launch of exclusively commercial rocket launches. Finally, in 2002, a new actor called SpaceX came to play the troubles. It is one of two private providers to which NASA has contracted to transport cargo to the International Space Station (ISS). Other companies were born like SpaceLife Origin which caused a great media interest and for good reason; its declared objective was then to target a “market segment of thirty million people” ready to send their “seeds of life” into space for fifty thousand American dollars, or even to allow the first extraterrestrial birth. Beyond the health risks, the possibility of an extraterrestrial birth undeniably raises its share of legal questions.

What would be the nationality of someone born in space, of a baby born in weightlessness, four hundred kilometers away from the Earth? Should we consider different scenarios, based on the place of birth? Is there a difference to the citizenship of the baby, whether the birth occurs in a spaceship, in an international space station, on a futuristic lunar base, or on a colony of Mars? Should the nationality of the parents also be taken into account? As for the space conquest, we will begin by tackling the simpler case of nationality following the extraterrestrial birth of insects and animals, and then propose elements of response concerning the citizenship of a baby born from an extraterrestrial birth.

Regarding their legal status, insects are, by analogy to be considered as “animals”. “Most legislation around the world, especially in the West, considers animals as goods, tangible objects that can be bought or sold; like things produced for trade”. Furthermore, “most animals are considered to be products or sensitive products”. There is no international regulation concerning the legal status of research animals “which is the closest state to that of animals – or insects – sent into space, as well as their offspring”.

The convention that applies to insects, animals and their offspring is the Convention on International Liability for Damage Caused by Space Objects (1972) which speaks of space objects, just like the Convention on Registration of Objects Launched in Outer Space (1975) which specifies in its article I b) that “The term space object includes constituent elements of a space object as well as its launcher and its parts”. Consequently, taking into account the fact that these living beings are part of missions and cannot be considered as astronauts, they can be considered as part of their spaceship or module (ISS).

Finally, the term “space object” effectively triggers the application of a large part of the Outer Space Treaty (1967) and the Rescue Agreement (1968). Article VII of the first states that “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”. Let us also add that the property of objects launched into outer space, including objects landed or constructed on a celestial body, and their components, is not affected by their presence in space or on a celestial body or by their return to Earth.

As a result, the responsibility lies with the launcher and the State from which the rocket went. The nationality of space objects, insects and animals as well as their offspring is linked to the ownership of the vessel or capsule, or of the payload. Reference should be made here to the commercial contracts for the on-board payloads on a case-by-case basis. We can finally conclude by saying that these beings are considered to be part of the space object and therefore, are space objects themselves. It should be noted, however, that the legal status of animals and their descendants could change in the coming years, notably resulting in a possible change in the management of their nationalities. In this regard, Laura Lewis (NASA) said: “The institutional animal care and use community is looking at the most humane alternatives for taking animals into the wild space. The regulations for animal research are more restrictive than for the use of people in research because people can give their consent. Animals cannot oppose”. To conclude, in France for example, the legal status of animals has evolved; the animals are today officially recognized as “living beings endowed with sensitivity” and no longer as “movable property”.

Birth registration has long been useful to governments, allowing them to tax, conscript and count the population. Traditionally the responsibility of churches, it was only in the Nineteenth Century, in England and Wales, that birth registration became standardised, compulsory and subject to government control. A birth certificate is therefore a compulsory act and the first possession of a person. It is the foundation, all over the world, of legal, social and economic legitimacy. Birth certificates are also “a battleground” for debates on parentage, gender, identity and citizenship. In our case, we are concerned with the birth of a baby in space and the nationality of the latter. In order to clarify our case, what about births onboard an aircraft?

Most often, the child acquires the parents’ nationality. Only one text contains a provision concerning the nationality of a child born in flight. According to the 1961 Convention on the Reduction of Statelessness, a child born onboard a boat or plane will have the nationality of the country in which the device is registered. But this text only applies if the child is stateless, which is to say in very rare cases. There is also no international convention regulating births in flight. To determine the nationality of the infant, it is necessary to refer to the internal law of each State. In France, for example, it is the law of blood, therefore the nationality of the parents which prevails. A child is not considered to be born in France because he was born on a French plane. A baby born in the air, who has at least one French parent, will thus be French. Most countries operate on this system. The United States of America has its own rights to the soil, however it has adopted an amendment which stipulates that airplanes are not part of the national territory if they do not fly over the country. Thus, the baby will be able to obtain American nationality only if the plane flew over the United States of America at the time of birth. If the mother gave birth over the ocean, the baby will get the nationality of the parents.

Although there is no existing law specifically dealing with “space-born babies”, it seems that the citizenship laws that govern extraterritorial births may be relevant. How these regulations apply will largely depend on the nation that is responsible for the device or station. Or the nation that sent, or controls, the device that served as the birthplace in outer space. Like a court, before we can address the substantive issue of citizenship, we must determine the jurisdiction and the laws that we must apply. Therefore, we will refer here to everything above the Kármán line. Under Article II of the 1967 Outer Space Treaty, “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. Consequently, from a jurisdictional point of view, the territories of outer space act as international waters without property rights or the possibility of operating freely. In fact, a birth in a territory belonging to no one, the born individual would seem to be stateless at birth.

As mentioned above, continuing with the nationality of someone born in space, the precise place of birth would probably be a spaceship, a space station or a space base. Here, Article VIII of the Outer Space Treaty declares that “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”. As a result, a nation would still be able to “claim” useful territories in outer space like its own, because humans cannot live in a vacuum. Thus, this baby may not be stateless if the nation “controlling” the place of birth has laws that automatically grant citizenship to babies born on its territories.

Nations granting citizenship based on the country where the baby was born, jus solis, like Common Law nations, have made their citizenship laws more restrictive over time. For example, the United States of America does not consider its overseas operations to be part of its territories. In the second school, we find the nations that apply the jus sanguinis form that examine the citizenship status of the baby’s parents to determine if the baby would be eligible for citizenship in this country. In this context, we can now move on to the main question: how could a space-born baby acquire citizenship? Not surprisingly, like most legal responses, it really depends on the circumstances of the birth. In this case, it is a “decision tree” analysis that begins with the simple question: which nation controls the birth facility?

If the baby is born on a space station on a ship or on a base in a country that operates according to the jus sanguinis model, this baby will most likely inherit citizenship from the parents. Since citizenship is ground-independent, the place of birth of outer space, although unique, should not affect the citizenship status of this baby. If the baby was born on a space station on a ship or on a base in a country that operates according to the jus solis theory, and such a nation has no restrictions for these territories, then this baby would automatically obtain the citizenship of this country under soil law. But if there are restrictions, then we would need to determine if the baby would obtain citizenship through other citizenship laws of that country, or if the baby could obtain citizenship from the parents through the independent doctrine of jus sanguinis territory.

For example, concerning the nationality of someone born in space, a baby born in an American flag spacecraft would likely not have automatic U.S. citizenship through law of the land. In this case, we will then look at the citizenship status of the baby’s parents. If the baby’s parents are U.S. citizens, then under U.S. law, this would activate the baby’s parents’ marital status. If the baby’s parents have citizenship in a country that applies the jus sanguinis doctrine, then we will look to see if the baby can meet the citizenship requirements by birth of that country.

Thus, although outer space does not belong to any nation, the exact place of birth and the country which controls this space will be essential to define the citizenship of the newborn. If a baby born in outer space does not meet the requirements for obtaining the nationality of a country, that individual could become stateless. In this case, the United Nations Treaty on the Convention relating to the Status of Stateless Persons should come into play and provide protections for someone born in space. However, the treaty has only been signed by a few States, and most of them do not own spacecraft or send people in outer space. However, if such a birth was to occur, the baby would automatically become a celebrity and would have no risk of becoming stateless. This is what can be said concerning the nationality of someone born in space.

This article was written by Thomas DURAND (Paris-Saclay).

The need for a Deep Space GPS

For this new article on Space Legal Issues, let us have a look at the need for a Deep Space GPS. Currently, spacecraft travelling beyond Earth rely on radio instructions from Earth stations, where large atomic clocks calculate the ideal trajectories for their journeys. Atomic clocks are the most precise timing devices ever invented to date.

Current navigation, however, has many limitations. One of them is to establish a constant dependence between the space object and the Earth. Another important limitation is to not allow deep space navigation. Thus, this navigation, when the range of action of the vessels will increase, communication times can be counted in minutes, even hours.

The issue is therefore clear, it is necessary to develop a Deep Space GPS system in the Solar System in order to allow probes and – possibly spacecraft with crew – to be guided autonomously to their destinations with a kind of Deep Space GPS. Not only will this allow robots to explore the outer reaches of the Solar System, but it will also ensure that astronauts on long-term space missions to Mars, or beyond, have a reliable navigation system with them.

The accuracy of the geolocation information is absolutely essential. Thus, on this precision depends your ability to find your way in outer space, having the main characteristics of being “big” and “empty”. According to NASA, “Accurately measuring billionths of a second could be the difference between a stable landing on Mars and missing the planet”.

There are few benchmarks to judge your position or speed, and most are too far to give accurate information. As a result, Jill Seubert from NASA explains that “Every decision to change direction begins with three questions: where am I? How fast am I moving? And in what direction?”. The best way to answer these questions is to examine objects for which the answers are already known, such as radio transmitters on Earth, or GPS satellites following known orbital tracks in outer space. “Send a signal at the speed of light with the precise time at point A and measure the time it takes to get to point B. This tells you the distance between A and B. Send two other signals from two other places, and you will have enough information to determine exactly where point B is in three-dimensional space” (this is how your phone’s GPS software works: by constantly checking the differences in minutes in the time signatures broadcast by different satellites in orbit).

Today, NASA relies on a similar but less precise system to navigate in outer space, said Jill Seubert. Most atomic clocks and broadcasting equipment are on Earth. They collectively form what is called the “Deep Space Network”. For example, NASA cannot generally calculate the position and speed of a spacecraft at once, with three sources of information. Instead, the American Space Agency uses a series of measurements given that the Earth and the spacecraft are constantly moving through outer space, in order to define the direction of the spacecraft and its position. For a spacecraft to know where it is, it must receive a signal from the Deep Space Network, calculate the time it took for the signal to arrive, and use the speed of light to determine a distance. “To define this very precisely, you have to be able to measure these times – the times of the sent signal and the times of the received signal”.

On the ground, when we send these signals from our Deep Space Network, we have atomic clocks that are very precise” says Jill Seubert. “Up to now, the clocks we have had, which are small enough and energy efficient enough to fly on a spacecraft, are called ultrastable oscillators; something which is completely wrong. They are not ultrastable and not precise enough”. If the location data on board the spacecraft is so unreliable, it is much more complicated to figure out how to navigate – when to turn on a thruster or change course, for example – and must be done on Earth. In other words, people on Earth are driving the spacecraft hundreds of thousands or millions of kilometers away.

Still according to Jill Seubert, “If you could record this time received by the signal on board with great precision thanks to an atomic clock, you would now have the possibility of collecting all the data allowing your computer and your on-board radio to drive independently of the spaceship”. So scientists hope to overcome this ineffective back-and-forth of information between Earth and spacecraft – by miniaturising atomic clocks while increasing their accuracy so that they can fit on space probes.

NASA and other space agencies have already put atomic clocks in outer space. In fact, the entire fleet of GPS satellites carries atomic clocks. “But, for the most part, they are too inaccurate and too heavy for long-term work” said Jill Seubert. The environment in outer space is much harsher than a research laboratory on Earth. Temperatures change depending on the exposure of the clocks to sunlight. Radiation levels go up and down. “This is a well-known problem in spaceflight, and we generally send radiation-hardened parts that have proven to work in different radiation environments with similar performance”. But radiation still alters the way electronics work. And these changes have an impact on the fragile equipment used by atomic clocks to measure time, threatening to introduce inaccuracies. Several times a day, stressed Jill Seubert, “The Air Force downloads corrections to the clocks of the GPS satellites to prevent them from drifting due to their offset from the clocks on the ground”.

NASA has deployed a new, highly accurate atomic space clock that the agency hopes will “One day help spacecraft to conduct themselves in deep space without relying on terrestrial clocks”. The Deep Space Atomic Clock or DSAC is an ultra-precise and miniaturised atomic clock with mercury ions for autonomous radio navigation in deep space. This technology works by measuring the behaviour of trapped mercury ions. This clock (or Deep Space GPS) has been in orbit since June 2019, but was successfully activated for the first time on August 23, 2019. “It’s not flashy at all – just a gray box the size of a grid – loaf of four slices and lots of threads” specified Jill Seubert.

Jill Seubert declared that this miniaturization is the key. The latter is now working with her colleagues on a project to create a clock small enough to be on board any spacecraft but at the same time precise enough to guide complicated maneuvers in deep space without any outside intervention. The goal of DSAC, she said, is to establish a system that is not only portable and simple enough to be installed on any spacecraft, but also robust enough to operate in deep space for long term without requiring constant adjustments on the part of ground teams. “In addition to allowing more precise navigation in deep space, such a clock could one day allow astronauts on distant outposts to move just like we do with our mapping devices on Earth” said Jill Seubert. “A small fleet of satellites equipped with DSAC devices could orbit the Moon or Mars, functioning like terrestrial GPS systems, and this network would not need corrections several times a day”. This Deep Space GPS would help a lot.

This article was written by Thomas DURAND (Paris-Saclay).

Proposal for a Martian Constitution

Preamble of the Martian Constitution

ARTICLE 1: The Republic of Mars is a Federation. Each State on Earth is to be assigned a Federated State of the Republic of Mars. The distribution of the Federated States will be made equally between each State on Earth.

ARTICLE 2: The official language of the Republic of Mars will be the one that has obtained the majority of votes following a referendum. Each Federated State may have one or more other official languages.

Title 1 of the Martian Constitution: Fundamental Rights

Chapter 1: Human Rights

ARTICLE 3: All humans are equal and have the same rights. Any discrimination on the grounds of their origin, sex or beliefs is prohibited.

ARTICLE 4: Freedom of religion, worship, conscience, demonstration and freedom of opinion are guaranteed by the Martian Constitution.

ARTICLE 5: Torture, barbarity, inhuman acts and crimes against humanity are prohibited.

ARTICLE 6: Freedom of expression is guaranteed to all citizens of the Republic of Mars. Censorship cannot take place unless the court decides otherwise.

ARTICLE 7: Everyone has the right to respect for his private and family life, his home and his correspondence.

ARTICLE 8: Every citizen has the right to a fair and public trial as well as to have access to an impartial judge. Citizens cannot be deprived of any right without prior trial.

ARTICLE 9: All citizens have civic and political rights allowing them to vote and to stand for election.

ARTICLE 10: Slavery and forced labour are strictly prohibited.

ARTICLE 11: The death penalty is applicable neither at the federal level nor at the level of the Federated States. There are no exceptions to this provision.

Chapter 2: Rights of Non-Human Beings

ARTICLE 12: Non-Human Beings are all living beings from planets other than Earth or Mars.

ARTICLE 13: Non-Human Beings enjoy the same freedoms as those guaranteed to Human Beings.

ARTICLE 14: All Non-Human Beings have a right of residence on the planet Mars. Access to the territory cannot be denied unless there is a court order to protect the planet.

ARTICLE 15: Everyone has a duty of assistance towards Human Beings and Non-Human Beings on or near Mars. This duty of assistance must be ensured in proportion to everyone’s abilities.

Title 2 of the Martian Constitution: Organisation

ARTICLE 16: The Republic of Mars is made up of a Federal State, itself made up of several Federated States.

Chapter 1: Organisation of the Federal State

ARTICLE 17: The powers of the Federal State are divided into three branches: the executive power, the legislative power and the judicial power. Each power enjoys complete independence from the other powers.

Section 1: Executive Power

ARTICLE 18: The executive power conducts the policy of the Federal State and enforces the laws. It is made up of a President of the Republic, a Prime Minister and a Government of Ministers.

ARTICLE 19: The President of the Republic promulgates laws, regulations and decrees.

ARTICLE 20: The President of the Republic is elected by direct universal suffrage for a period of five years.

ARTICLE 21: The Prime Minister is the head of Government.

ARTICLE 22: The Prime Minister is elected by direct universal suffrage for a period of five years.

ARTICLE 23: The suffrage for the election of the Prime Minister must be organised within three months of the election of the President of the Republic.

ARTICLE 24: Ministers are appointed by the Prime Minister with the agreement of the President of the Republic.

ARTICLE 25: The powers of the Government are limited to the regulatory field. The Government adopts regulations and decrees, and it can also take circulars to the administration.

Section 2: Legislative Power

ARTICLE 26: Legislative power is vested in Parliament. The Parliament is made up of Deputies.

ARTICLE 27: The citizens of each Federated State elect by direct universal suffrage two deputies who will be their representatives at the federal level.

ARTICLE 28: Each deputy is elected for a period of five years. They cannot carry out more than two consecutive mandates.

ARTICLE 29: The Parliament is renewed by half every three years.

ARTICLE 30: Legislative elections must be organised within six months of the election of the President of the Republic.

ARTICLE 31: Parliament votes laws by majority vote.

Section 3: Judicial Power

ARTICLE 32: The judicial system is made up of three levels of jurisdiction: the Tribunal, the Court of Appeal and the Supreme Court.

ARTICLE 33: The judges are completely independent.

ARTICLE 34: Justice is done in the name of the people for the people.

ARTICLE 35: Only the courts are able to judge the litigants.

ARTICLE 36: All subjects of law can only be judged and condemned under the terms of a law.

ARTICLE 37: The litigations between Mars and Earth will be settled by ordinary courts.

ARTICLE 38: An exceptional jurisdiction will judge litigations between human beings and beings arriving from other planets than Earth or Mars.

Chapter 2: Organisation of Federated States

ARTICLE 39: Each Federated State can freely decide on the organisation and functioning of its internal institutions.

ARTICLE 40: Each Federated State must respect the principles erected by the Martian Constitution and comply with it.

Title 3 of the Martian Constitution: Independence

ARTICLE 41: The Federation and its Federated States may request their independence from the land countries in order to be fully independent.

ARTICLE 42: The independence of the Federal Republic of Mars is subject to a popular referendum having obtained an absolute majority of votes.

ARTICLE 43: In the event of independence, the territory of the Federated States would no longer belong to the Terrestrial States. The latter will then have to give it up and grant their independence to the Federated States.

Title 4 of the Martian Constitution: Constitutional Revision

ARTICLE 44: The Martian Constitution may be amended when the Parliament consents to it by a majority of three quarters of the seats.

ARTICLE 45: A commission comprising equally citizens, Deputies, ministers and specialists in constitutional law will be formed. This commission will be responsible for preparing a draft reform of the Martian Constitution.

ARTICLE 46: The reform project is adopted when it is submitted to the vote of the Parliament and obtains an absolute majority of votes or when it is submitted to a referendum and obtains a majority of votes.

This article was written by Clara NOGUEIRA (Paris-Saclay).