Louis de Gouyon Matignon

The crazy history of the space OTRAG company and space law aspects

For this new space law article, let us have a look at the space OTRAG company and space law aspects. “Faster, better, cheaper!” This is the slogan since Herman Oberth declared in his book A Rocket into Planetary Space: under certain economic conditions, the construction of such machines (rockets) may even become profitable. Such conditions might arise within a few decades (1923). Some forty years later, space was given a legal framework at the instigation of the United Nations, which then came to regulate its exploitation and use.

In the first half of the 20th Century, Germany had a head start in the space race, in particular with the creation of the V2 missile, which required the main devices used by modern launchers for its operation. At the end of the Second World War, notably because of disarmament combined with the arms ban imposed on Germany by the Allies, German projects were abandoned. A few years later, at the height of the Cold War, it was the Russians and Americans who took over in this unbridled race against time. The two great world powers also worked to recover German rocket knowledge by hiring hundreds of German engineers to work on their projects alongside the famous Wernher von Braun.

It is in the context of The Cold War, punctuated by an inter-state “race for space conquest” that the O.T.R.A.G. company was born in Stuttgart (i.e. Orbital Transport und Raketen-Aktiengesellschaft).The gist of the project planned by its founder, Lutz Kayser, an emeritus German engineer, was to compete with the large public aerospace companies by creating the first private company to build modular space launchers, according to principles that are unusual in space: systematically adopting the most rustic and cheapest solution.

This huge project financed by more than six hundred European investors, including by the German Federal Republic, from the get-go, was born in 1975. It should be recalled that a few decades later, the willingness to explore space at highly reduced costs was taken over by the pharaonic SpaceX project designed by the ambitious Elon Musk.

Concerning the OTRAG project and after several months of negotiations, mostly in Africa, a contract was finally drafted and signed on March 26, 1976, with Zaïre, to establish a launch center in northern Shaba, a Zambia bordering region. “Negotiations lasted fifteen to twenty minutes”, recalls Frederic Weymar, the businessman who put the German company in touch with the Zairean authorities. More than thirty-eight square miles of land in Africa were dedicated to the project (i.e. one tenth of the entire Zairean territory and more than twice the size of Switzerland), the launch site being located on a high plateau overlooking the Lubua River, a tributary of the Congo, at an altitude of one and a half kilometer.

This contract took the shape of an international commitment, mainly meaning that it couldn’t benefit from the binding traction of a ratified treaty. It does, however, provide a framework for cooperation relations between Zaire and the OTRAG. On one hand, the OTRAG agreed to ensure Zaïre’s development (but also agreed to pay an annual rent for the right to occupy the land), and on the other hand, Zaïre agreed to leave a field of operations, as wide as possible, available for the launching of OTRAG rockets.

Originally, the contract was concluded for a period of twenty years – although we shall see that the project was put on hold much earlier – and as such, compensation clauses in the event of termination by either party had been inserted. If OTRAG happened to be at the origin of the cancellation of the contract, it would’ve had the obligation to return the territory in its original state. However, if the cancellation came from the Zaire side, such cancellation would entail compensation based on the value of the installations set up by OTRAG (under the supervision of experts appointed by mutual agreement between the two parties).

Even if the international dimension is not eye catching or noticeable at first glance, the 1967 Space Treaty – to which Zaire is one of the signatory states – strongly influenced the law of the parties. Indeed, as a reminder, when a treaty is signed by a State, it acquires a greater scope than its national law.

Firstly, Article VI of this Treaty provides that the activities of non-governmental entities in space must be subject to authorization and continuous monitoring by the State concerned. It is therefore understood here that Zaire had at the time of signing the contract implicitly – or not – accepted this monitoring responsibility.

Moreover, the 1967 Treaty requires a principle of peaceful use of the territory. This principle is to be found in Article I §2 of the said contract, but it was extended by the parties because it provides that “the right of enjoyment includes the right to enjoy the territory (…) for the purpose of sending spacecraft into space for peaceful uses (…) and of all measures which, in the opinion of the OTRAG, are directly, indirectly or otherwise related thereto”. However, even though the contract provides a legal framework for the exercise of rights over the territory by OTRAG, a certain limit was imposed on the German company in the sense that its activities were not allowed to jeopardize the country’s security. Such limitation enabled Zaire to retain a firm grasp on its sovereignty over its territory and thus to break slightly from the 1967 Treaty of which it is only a signatory.

Regarding the law applicable to the contract, we mentioned the fact that it wasn’t really an international treaty. It’s reasonable to assume that is more of an economic development agreement. In fact, the aim sought by director Mobutu – apart from the notoriety that the project offered him – was to develop the Zairian infrastructures thanks to the varied activities of the German company.

Diving deeper in the legal field, if a clause happened to refer to the Zairean national law, as mentioned earlier, such a link did not prevent any kind of interference by an international jurisdiction. Indeed, beyond the influence of the Space Treaty on the contract, the activities carried out by OTRAG were linked to outer space and therefore had effects on third countries.

Thus, in his Note sur le contrat du 20 octobre 1978 entre le Zaire et l’OTRAG, Gundolf FAHL (a jurist) referred to the example of OTRAG placing a satellite in orbit over a third State. Indeed, this situation could affect Zaire’s relations with this third State, even in compliance with the principle of the peaceful use of space. Therefore would engage Zaire’s responsibility even though it is an OTRAG satellite.

As a result, the main element that jumps out would be that trying to decipher the law applicable to the contract at first sight was a far cry due to the complexity of the whole scheme, complexity reinforced by the various clauses inserted in the contract (exemption clauses, waiver clauses, etc.) and the various international players involved including third States that could be affected by OTRAG’s activities.

In this manner, after promising, in exchange of all the rights he gained thanks to the contract that both parties agreed to, telecommunications satellites (including “surveillance”) to the Zairian leader, the engineer expatriated his team to the heights of a plateau in the middle of the Savannah.

In Olivier Schehm’s documentary Fly Rocket Fly, we can see young engineers in shorts building huts with green roofs, hunting gazelle by helicopter or sharing local cannabis with tame monkeys. It is in this atmosphere of lightness and rusticity (the first rocket launch tower will be built in wood) that Lutz Kayser’s ambitions – necessarily limited by the shoestring budget he had – were starting to reach new heights.

As an example, the original investment of 400 million Deutsche Mark – devoted to the development of the program until 1981 – represented, at the time, only half of the costs devoted to the financing of the Ariane launcher produced by the ESA (European Space Agency). The low cost dimension of the project translated itself in the intrinsic manufacturing characteristics of the modules.

Consequently, as opposed to multi-stage rockets, an OTRAG rocket was a coaxial assembly of modules, each of which were composed of a tank and an engine, the assembly being six and a half meters long and thirty centimeters in diameter. The basic module of the OTRAG used to be ten meters high and eighty cm in diameter, and had a thrust of three tons. In addition to various elements borrowed from current industrial production, fuel oil and nitric acid were used as fuel (this mixture costed only one twentieth of the price of fuel used by traditional rockets).

In spite of these particular characteristics the first rocket was successfully launched on May 17, 1977, reaching an altitude of twenty kilometers. This noticeable victory, for what was at the time one of the youngest space program who ever lived, especially in the geopolitical context of the era, attracted the attention of several major foreign countries, in particular massive entities like the United States of America, the U.S.S.R. and France.

However, as early as 1978, during a debate in the French Senate, a considerable number of elements were uncovered suggesting that Germany was supposedly, inconspicuously, taking advantage of OTRAG’s expansion to manufacture satellite launchers for military uses (this subterfuge allowing Germany to circumvent the Allies’ decision, at the end of the Second World War, to demilitarize the German state and in an extension forbidding any activity related to the manufacturing of weapons).

In the archives of the Official Gazette of the French Republic, a question asked by Mr. Pierre Bernard-Reymond, Secretary of State to the Minister of Foreign Affairs, to Senator Boucheny can be found in this regard: “I have drawn your attention to information which states that a company called O. T. R. A. G. is allowing the Federal Republic of Germany to transgress Allied decisions prohibiting that country from manufacturing satellite launchers for military use”. In addition, the family relationship between Lutz Kayser and the managing director of Dornier, Germany’s leading arms company, was pointed out.

This theory would thus explain the curiosity of the geographical choice of the space program, Lutz Kayser being able to carry out his project, out of sight, in the Zairean mountains. Frank Wukasch, an engineer friend and associate of Lutz Kayser’s, explained in retrospect with lucidity that “If the choice of Zaire was a logical one, diplomatically, it was going to be catastrophic”.

This contract between the state of Zaïre and the OTRAG was signed about ten years after the entry into force of the Outer Space Treaty (1967), which was written and negotiated between the parties to avoid arsenalisation and appropriation of space. It is in the context of the Cold war and of the race to the Moon that space law has emerged on the international scene. While it is noteworthy that this law is still a vague law that deserves to be strengthened, some fundamental principles governed space law at the time when OTRAG concluded the contract with Zaïre. One may cite the main ones to explain the legal context in which the contract was concluded and to point out whether this contract complied with international space law.

Article 1 of the 1967 Outer Space Treaty provides the freedom of appropriation and use of space for all states in the interest of all countries. Another fundamental principle is enshrined in the international treaty: the principle of non-appropriation of space (Article 2). It means that the outer space, including the moon and other celestial bodies shall not be appropriated by any states. No state may assert its sovereignty or occupy outer space. These general rules are accompanied by other principles that should be raised within the framework of this article. Article 6 of the above-mentioned Treaty reads as follows: “State parties to the treaty should bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or non-governmental entities”. This implies that private entities should require authorizations and permanent supervision from the State party to the Treaty. Finally, this Treaty limits above all the use of the Moon and any other celestial body for non-warlike purposes.

These examples highlight the real willingness of the international community to regulate space law in the face of the acceleration of scientific research and experimentation in this field. However, these norms remain particularly general and Zaïre had not ratified the said Treaty, even though Zaïre implicitly committed itself to respecting the provisions of the Treaty, It must be recalled that, in international law, a treaty is legally binding as soon as the state has ratified the Treaty. Under this condition, the Treaty will have to be applied in the national law of the State Party.

One may therefore question the legality of such a project, set up in a country that is not subject to the provisions of the Treaty governing space activities. If it belongs to OTRAG to enjoy the territory on which the activities will be carried out, in accordance with the provisions of the Space Treaty, it seems nonetheless surprising, that a company may legally carry out activities in a State that has not committed itself to respecting the legal framework of these activities.

When reading Article 7 of the Outer Space Treaty, it is clearly stated that any State Party whose territory or facilities are used to launch an object is internationally liable for damage caused by the said object or its constituent parts, on Earth, in the atmosphere or in outer space. Thus, it would seem that Zaïre, the only signatory to the Treaty, could host such a project without ever being held responsible in the event of accidents.

As it has just been underlined, the optimism (or bullishness) surrounding the whole operation quickly faded away to leave room to a constellation of questions. Among them, the question of liability started to raise many eyebrows. To theorize it, or have a shot at it at least, authors tried bringing together two notions, almost at the opposite end of the spectrum, to unfold what needed to be unfolded.

As it has just been underlined, the optimism (or bullishness) surrounding the whole operation quickly faded away to leave room to a constellation of questions. Among them, the question of liability started to raise many eyebrows. To theorize it, or have a shot at it at least, authors tried bringing together two notions, almost at the opposite end of the spectrum, to unfold what needed to be unfolded.

In his book, Mr. Armel Kerrest, Professor emeritus of Public Law at the University of Western Brittany and President of the Association for the Development of Space Law in France, in his book named “Attachment to States of private activities in space. Reflection in the light of the law of the sea” asserted the idea that the notion of “launching State” currently constitutes a kind of “lock” which makes it possible to ensure a responsibility and thus a control of material activities in space.

This notion of “launching State”, in the present case, can be compared to the activities carried out by OTRAG, mainly in Zaire, which have raised the question, at least in the legal community, of the risk of occurrence of “flags of convenience” in space matters.

In maritime law, a flag of convenience is defined by the International Transport Federation as a vessel “for which the real ownership and control is in a country other than that of the flag under which it is registered” and this with the aim of generally escaping the regulations and taxation of the country of origin.

The theory transposed to the particular case of OTRAG’s activities would suggest that the relationship, enforced by the contract, between the very low quality of the consideration due by the OTRAG company in Zaire, characterized solely by the dispatch of an experimental surveillance satellite in the name of the host country, and the almost complete freedom that the company could enjoy in exchange, subject only to taking out insurance, would bring this situation even closer to a potential translation in space law of the notion of “flag of convenience”.

The comparison made to a notion related to maritime law would in fact be part of a more general reflection based on the potential affirmation, full and complete, of the status of “launching State” as a source of security, opposed to the link based on registration. Consequently, the States whose financial responsibility could be sought would be identifiable on the basis of purely factual criteria, notably that of territory, and would therefore not be able to invoke the existence of a distended link between the company operating the launches and the territory at the origin of these launches in order to request a potential irresponsibility.

However, the perpetuation of the status of “launching State” as a solution to the consequences of the multiplication of projects trying to replicate what OTRAG did and, more generally, the question of the use of the law, strictly speaking, as a palliative to the potential failures linked to this type of operations, also knows its detractors.

The latter thus highlight the fact that the issue is in fact a prerogative of international relations, the question being articulated, for the States hosting these operations, around the need to maintain some kind of credibility by reinforcing the norms of control of these operations, in an international context tending towards generalized transparency and potentially disastrous economic consequences in the event of failures.

Whether the answer is legal or other, the accelerated democratization of these operations in the years to come, in a context of exponential growth in the conquest of space, risks complicating the problem. Consequently amplifying the need for a clear and determined response on the subject. The reign of taking a rain check on this issue is closer to the finish line than ever.

Caught between the fires of Moscow and Washington, Lutz Kayser’s project, wearing the burden of the political instability in Zaire – the battle of Kolwezi led by soldiers of the (FNLC), from Angola and supported by Cuba and even East Germany will take place only a few kilometers from the OTRAG base. Some sources will claim that the capture of Kolwezi was only an intermediate objective, the main one being the capture of the OTRAG base – will end in disaster.

Despite a second launch synonymous with a second success – on 20 May 1978 a rocket reached an altitude of 30 km – the project will not survive the third launch. On 5 June 1978, a rocket launched from the Zairean base of OTRAG finally crashed, before the stunned eyes of Mobutu, who had come to attend the event in person, accompanied by his general staff, which had become a Soviet-style ceremony. The OTRAG project becoming a thorn in the side of the African head of state – put under pressure by Leonid Brezhnev, his neighbors and the costs involved – will thus be nipped in the bud. The contract will be broken in 1979, just over 4 years after its signature. Following the Zairean failure, the project found a home in Libya, 600 km from Tripoli, before settling in Sweden in Tir Kiruna. Each time, international pressure will push the leaders of OTRAG to leave the countries in question and abandon their plans for space conquest. The company eventually ceased its activities completely and disappeared in 1987.

For his part, Lutz Kayser, forced to retire from the company’s management in 1981, chose to draw a definitive line under his dreams of space and even refused in 2015 a request from Saudi Arabia to build a launch site in the middle of the desert.

Shortly before his death – and many years too late – he declared himself a recluse on an island in the Pacific, as if not to be confronted with his failure: “What is ambivalent about rockets is that they can be used for civilian as well as military purposes”.

Lucid.

This article was written by Cloé DANIEL, Mikhael TORRES, Yannis KHENNANE, Léa DETURCHE, M’hamed BENNOUNA and Jean-Pierre MENDY (Paris-Saclay).

Conquest of Mars: Phoney War, Cold War or Star Wars?

Let us have a look for this new space law article at the conquest of Mars. Protagonists have changed, but motivations remain the same. The conquest of space will always remain the supreme aspiration of countries wanting to assert themselves as a great power in the eyes of humans, through technology. Only a question of cultural soft power? Not so sure.

Since the Cold War, space law has evolved a lot. In the 20th Century, the battlefield shifted towards the conquest of raw materials… or even towards the search for a famous “Planet B”: Mars is increasingly seen as a new colony to be conquered. Among these modern times conquistadors, the United States of America, China and the United Arab Emirates were in the space spotlight this summer.

SUMMER 2020: A FULLY USED LAUNCH WINDOW

Surely, experts didn’t miss that this summer opened one of the rare launch windows for spacecraft wishing to reach the planet Mars. Indeed, every twenty-six months only, our planets are aligned on the same side of the Sun, and the distance to travel is only fifty-five million kilometers, compared to seventy-six on average. A short 6-month trip, for which the launch window closed on August 5.

The United Arab Emirates (UAE) got the ball rolling on July 19. This outsider of the space conquest has successfully launched the Al-Ahmal probe (Hope in English) from the Tanegashima base in southwestern Japan. The UAE thus asserts itself as the first Arab country to carry out an interplanetary mission. The probe, built in partnership with American universities, mobilised one hundred and fifty UAE engineers and two hundred American experts. It will be placed in orbit around Mars to observe the dynamics behind the slow disappearance of the Red Planet’s atmosphere. For this, it is equipped with three on-board instruments, two spectrometers and one high resolution camera.

More experienced, the Chinese launched their Tianwen-1 (Questions to heaven in English) probe on July 23. The Chinese Long March-5 rocket was scheduled to be launched from the Wenchang base on Hainan Island in the far south of the country. The Tianwen-1 probe addresses many technical challenges: the total mass of the instruments that must operate on Martian soil reaches a record four and a half tons, one of the heaviest loads ever shipped to Mars. An orbiter, a lander and a mobile robot will allow the thirteen on-board instruments to analyze the Martian soil and atmosphere. With their European partners (ASE, CNES, CONAE and the Austrian FGG), the Chinese are investing in five areas of research, linked to the analysis of Martian soil.

Don’t forget that the Americans are still on the agenda. To date, they are the only ones to have managed to land intact robots on Mars. Launched on July 30 from Cape Canaveral in Florida, the Perseverance rover, a one ton state-of-the-art technological gem equipped with seven scientific instruments, will ensure the continuity of the MSL mission operated by Curiosity since August 2012. Perseverance will search for chemical markers and evidence of a passed life around the Jezero crater. More importantly, it will collect more than forty samples of Martian soil. These will wait, in small cylinders sown on the ground, for the Earth Return Orbiter spacecraft. This future mission will be responsible for bringing back to Earth its precious cargo of a few hundred grams in 2031… This somewhat crazy project, of indisputable scientific interest, will have to address many spectacular challenges, such as launching a rocket from the planet Mars. The US mission will also attempt to fly the lightweight Ingenuity drone up to five meters high to analyze the Martian atmosphere. It will also experiment with the possibility of producing oxygen from carbon dioxide… with a view to preparing for a future landing of humans on Mars?

A VERY HIGH RETURN ON INVESTMENT: INNOVATION AND BASIC RESOURCES

The renewed interest in the conquest of Mars may well result from the fact that most people think it is too late to save the Earth: it would be difficult to generate economic growth that is truly uncorrelated with the use of resources. In that case, the power that will be able to exploit the raw materials of the Moon, the asteroids or even the accessible planets will experience a new golden age, like the Spanish and Portuguese in their time. However, while waiting for this direct exploitation of resources, several authors believe that going to Mars represents a major interest for innovation.

First of all, according to Timothée Girod, Head of Consulting at the Bpifrance Support Department, the conquest of Mars induces finding technical solutions for logistics. These are advances that can be reused immediately for satellite constellation projects (military, communications, scientific, etc.) in low orbit. French and European companies are making a major contribution to this. Logistics is a promising field. To meet the needs of manned flights, it will be necessary “to transport loads between several logistics nodes, as can be seen today in land or air transport networks with hubs, and to provide services in space”, says Nicolas Berdou, an investor in Bpifrance’s DefiInvest fund. Private players thus benefit from part of the financial envelope of the major space agencies that subcontract programs to them.

In the health sector, SMEs and start-ups are developing tools for self-diagnosis and treatment, encouraging the development of remote medicine. These innovations make possible to generalize techniques already in use today, such as tele-consultation, or those to come, such as remote surgical operations. For example, Bodycap develops miniaturized electronic sensors communicating wirelessly and global solutions for embedded monitoring. Astronaut Thomas Pesquet has already used them during his stay in the ISS, the International Space Station. In 2020, China experimented for the first time a surgical operation at a distance of 50 kilometers on an animal, thanks to 5G. Surgical operations could be imagined at a distance of about seventy-six million kilometers… Then, it will be possible to transpose the technological advances developed on the soil of Mars itself.

On this planet, robots control energy in an innovative way, manage scarce resources efficiently (recycling of air, water, waste), progress in robotics. Given its position close to the asteroid belt, the planet Mars can be an outpost for studying and preventing the cosmic threat posed by celestial objects. In the more futuristic hypothesis of a true colonization, the asteroids could constitute a precious reserve of raw materials, exploitable from the Red Planet by the Humans who would have settled there. According to Richard Heidmann, founder of the association Planète Mars, “The installation of scientists on the Red Planet will allow us to do comparative planetology, and to better understand the geological and climatic phenomena that govern the Earth. Researchers will be able to improve their models to deduce fundamental laws. If they discover that there was life on Mars, it will transform our vision of the cosmos. But the stakes are also economic. It has become financially possible to go to Mars. As a sign of the times, private companies such as SpaceX or Blue Origin have unveiled plans to do so. In the long term, I believe in an offer of residence on Mars, intended for scientists and wealthy tourists. Incidentally, this colonization, because it poses many technological challenges, will lead to innovations that will benefit the general public. GPS and the satellite were invented through space exploration. Finally, such an adventure constitutes an opportunity for international cooperation, as in the case of global programs to fight hunger or epidemics. The perfect opportunity to strengthen dialogue between countries”. In 2019, SpaceX boss Elon Musk said he hopes to offer tourist trips to Mars for less than half a million American dollars.

Finally, to go to Mars you need astronauts, this facet of the Martian adventure is also to be taken into account: it creates jobs. NASA recruits widely. This recruitment will allow to send Humans on the Moon, then maybe on Mars…

A DIPLOMATIC AND GEOPOLITICAL STAKE

The Hope probe launch allows the UAE to move away from its conservative image and show that it is now a “player in the knowledge society” (Isabelle Sourbès-Verger). It aims to get out of its dependence on oil and to establish itself as a real power. If China succeeds in this feat, it will have done in one go what the United States of America has accomplished in five missions since 1960. This is Beijing’s first completely independent mission and demonstrates that China now has the technology and infrastructure to become a major space power. This will enable China to curb the brain drain from the country to the United States of America and continue to compete with the superpower. Furthermore, Wu Yanhua, the deputy chief of China’s National Space Administration said, “our overall goal is that by around 2030, China will be among the major space powers of the world”.

Though, the United States of America remains the leader in the conquest of space and particularly of Mars. However, the USA does not wish to be surpassed by its biggest competitor, China, and continues its commercial and technological war. Lastly, this year Russia had a joint mission with the European Union called ExoMars which was unfortunately postponed to 2022 due to technical delays and the pandemic. Since World War II, Russia has played an important role in the conquest of space during an ideological war with the United States of America and is still here. It seems that we are witnessing a real space race to find out which State will be the first to send a man to Mars and earned a reputation as a spatial, technological and economic superpower.

AN ENVIRONMENTAL CHALLENGE?

Another issue surrounding the conquest of Mars is undoubtedly the exploitation of its resources. The environmental situation and the climate emergency are in fact pushing us to extend our research field in order to meet our needs. In fact, the overshoot-day meaning the date on which humanity has consumed all the resources that the planet can renew in one-year advances further each year: in 2019 it fell on 1 October and this year, it was 8 August.

Because of its proximity to Earth, Mars can now be used to test the most important extraterrestrial infrastructure ever built for the exploitation and transformation of its natural resources. Much larger than the Moon, the Red Planet will be able to host a large-scale international Martian base that would prefigure the development of planets that are not directly habitable but are interesting for their resources. Many resources could be used, such as water, oxygen, carbon dioxide and certain types of rock. These resources are all the more vital as our use of nuclear and solar energy is changing the role of storage. Thus, we can see that water or carbon dioxide, which can be vectors of energy, will be just as vital because of their role in the methods of extraction of these materials for the storage of energy. It is also worth noting that Mars has a gravity of about a third of that of the Earth, so by deduction it should be possible to extract resources at greater depths without the risk of mines settling or collapsing.

Ultimately, the exploitable volume on Mars is much greater than on our planet. At first glance, the prospects for the conquest of Mars therefore seem very attractive. Some would even go so far as to say that the exploitation and transformation of Mars’ natural resources are the key to the evolution of our autonomy from Earth. Informed readers might wonder about the coherence of exploiting a planet other than ours to the tune of billions, whereas the French economist Dominique Plihon warned in one of his lectures that, faced with the environmental objectives it had set out, Europe currently has a climate investment deficit of more than one hundred and eighty billion euros.

NEW LEGAL ISSUES ARISE: WHO’S THE OWNER? WHO EXPLOITS RESSOURCES?

Legal issues are already very numerous and could be even more so in the future, if a form of life was indeed discovered on Mars. In fact, in this configuration, space agencies would certainly consider a perennial installation on the Red Planet. The question of the resources available on Mars and their exploitation becomes very concrete. Knowing that sending a liter of water to the Moon exceeds one million dollars, Man will absolutely have to find solutions to his own subsistence on Martian soil to settle there. From this point of view, what could the Martian economy look like? The conquest of Mars raises two mains legal issues:

  • Can a state (or a private company) claim a proprietary right on Mars?
  • Is it possible to exploit Martian resources? Under what conditions?

In the field of space law, one text is unavoidable: the treaty of January 27, 1967, known as “Space Treaty”. Concluded and drafted in the context of the Cold War, before Human’s first steps on the Moon, this treaty could seem to be dated in the contemporary spatial context. Aspirations of the treaty are obvious: making the space being a “Res Communis” common good, without the possibility of appropriation by any State. Indeed, the treaty stipulates in its article 2 a principle of non-appropriation of celestial bodies: “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”.

At that time of tension between two antagonistic blocs, concerns were more focused on the militarization of space, rather than the exploitation of its resources, it is why the treaty does not make this subject a keyword.

U.S. SPACE ACT: BREAKING THE RULES?

This deficiency is all more noticeable since the U.S. Space Act of 2015, which reforms the American space law to promote the development of private space flight and the space mining industry. In particular, the Space Act charges the President, acting through appropriate federal agencies, to “promote the right of U.S citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with such obligations and subject to authorization and continuing supervision by the federal government”.

The question that arises is the compatibility of American law with article 2 of the 1967 treaty. While Americans wouldn’t recognise it, many believe that it is in total rupture with the prohibition of national appropriation. But is the answer so obvious? Does the exploitation of resources mean appropriating the land that contains them? Whether or not this law breaks with the initial treaty, it is a fundamental step in the privatization of space and the exploitation of Mars. On the other hand, it could compromise the effectiveness of the space treaty, which rests, like all the others, on the reciprocal respect of the adherent States. However, if a signatory like the United States of America decides to no longer respect it, it is highly likely that the other States will also renounce it.

From this perspective, the race to Mars would be governed primarily by unilateral states decisions, which would authorize the exploitation of resources, rather than cooperation built on international law. The celestial bodies and their resources would no longer be res communis, but terra nullius: land without owners, on which a State could base its sovereignty.

A Luxembourg law of July 20, 2017 seems to confirm the new direction that space law is following. In fact, it is quite similar to the American law, since it has in its first article that “The resources of space are susceptible to appropriation” before adding in its second article that “no person may explore or use the resources of the space without be in possession of a written mission approval from the ministry having in their attributions the economy and the activities of space”. Another specificity is that this approval can only be granted to a private company, with its head office at Luxembourg. A new evidence on the trend that space law is following, that should be linked to the exploitation of Mars. What’s next?

Research projects on Mars have barely materialised when other Red Planet projects are already underway, so legal and economic issues are of hot topic. Several national and international space companies and agencies plan to exploit the research data and develop their technical capacities to colonise Mars.

MARS ONE, A FRAGILE CONQUEST PROJECT

A first project, entitled Mars One, was proposed in 2012 by a Dutch entrepreneur. This project was to send the first humans in the 2020s on the planet. The goal was to create a base made up of people selected for their skills. A space reality television show was to be organized as a media follow-up from the base.

Two entities, the Mars One Foundation and the Mars One Ventures, are involved in the project. The difficulty with these entities is that they are not specialized in aerospace. The credibility of the project is called into question by this element. Investors find it difficult to buy into this project. Mars One Ventures was put into receivership in February 2019. Without it, the Mars One Foundation cannot do anything. This event highlighted the difficulties of the project, it may not lead to anything concrete.

AN AMERICAN ADVANCE IN THE CONQUEST OF MARS

The United States of America keep a significant lead in the conquest of Mars. American projects are pharaonic. Organizations are already trying to overcome the technical difficulties in order to conquer the Red Planet as quickly as possible. Elon Musk presented, on September 27, 2016, the project of the company SpaceX to create a human colony on Mars. The goal of the project is to begin the conquest of Mars in 2024. The project seems quite promising on several points, in particular technical and financial. Several rocket prototypes were tested in preparation for the trip. The goal is to reduce costs but also to increase the power and speed of its space shuttles. The technical means envisaged by SpaceX could make it possible to make the trip between Earth and Mars in three months instead of the six months initially planned.

The National Aeronautics and Space Administration (NASA) also plans to conquer planet Mars. Its first objective is to send humans back to the Moon. The Moon is the test which makes it possible to know if we can live and work in a new world. A base on the Moon would then be the first step before reaching Mars. The window that would be the most viable to reach Mars with the lowest possible energy consumption occurs only every fifteen years. Thus, the launch of a human base on Mars would be considered as early as 2033. Given the difficulties, notably budgetary and technical, NASA may not be able to achieve the objective of creating a human base on Mars until the end of the 2030s.

IS A FRENCH OR EUROPEAN PRESENCE TO BE HOPED IN THE CONQUEST OF MARS?

The European Space Agency (ESA) is considering building a human base on the Moon by 2025, before considering conquering Mars. The goal, on the Moon, would be to establish a small village with its houses, church and administrative buildings. This village would be a center of research and exploration based on international cooperation. ArianeGroup is preparing an Ariane 6 rocket that would be able to send up to eight and a half tons of payloads to the Moon. The European objective is then appreciably close to that of NASA: the two projects face a risk of competition. There are still many legal questions to be raised… Will the spirit of cooperation of Article I of the 1967 Outer Space Treaty survive? This is what can be said concerning the conquest of Mars.

This article was written by Corinne BAUDOIN, Laetitia PIETRI, Pierre-Yves VILLARD, Guillaume BRESSON, Bianca-Laetitia TOMASI, Élise DRILHON and Esther SENG GARCIA (Paris-Saclay).

Understanding the NASA Artemis Accords

On May 15, 2020, NASA published the NASA Artemis Accords that put in place a set of principles to guide the execution of the Artemis program to send a team of astronauts to the Moon by 2024. These agreements reflect a consecration of the general principles of space law by reminding the various actors of the importance of guaranteeing some principles to create a safe and transparent environment.

Space law was created following the sending of the Earth’s first artificial satellite, Sputnik 1, into outer space in 1957 by the U.S.S.R.. This unprecedented advance instigated a movement of space race with a multiplication of research and space activities on the part of States. It was therefore necessary to provide a framework for these activities and it is the Space Treaty, an international treaty dating from October 10, 1967, which establishes the common basis for all the general concepts of space law. Other major international treaties have appeared in order to clarify some problems that space activities may generate, such as the treaty on the rescue of astronauts, the return of astronauts and the restitution of objects launched into outer space in 1968, or the treaty on international liability, which appeared on September 1, 1972, which frames the principle of the responsibility of States for damage related to space debris, the 1975 Registration Treaty, which aims to identify objects sent into space by States, and the Moon Treaty in 1979.

In April 2019, a few months before the fiftieth anniversary of the Apollo 11 mission, which saw the first man set foot on the Moon on July 21, 1969, the American Vice-President, Mike Pence, announced that American President Donald Trump wanted the first crew to be placed on the surface of the Moon in 2024. It is in this context that the Artemis program was born. This space program should lead to a sustainable exploration of the Moon through the organization of regular missions whose outcome would be the installation of a permanent station on the Moon. The program must also allow the testing and development of equipment and procedures that will be implemented during future missions with the crew on the surface of the planet Mars.

However, nowadays there are more and more actors in space. Indeed, many companies and various private actors have become indispensable to space programs, and the rise of a considerable number of international space agencies has made it necessary to establish new rules. Thus, NASA, with the collaboration of the U.S. Department of State and the National Space Council, created the NASA Artemis Accords to establish a common set of principles, largely inspired by the Space Treaty, to govern the civil exploration and use of outer space for both States and private agencies.

NASA’s choice to directly create these agreements without going through the more traditional process that would lead to the conclusion of an international treaty, is clearly strategic: indeed, the idea was to be able to quickly frame the participation of the various actors, and more particularly private companies and private agencies, in the execution of the program, in order to establish a common set of principles to govern the civil exploration and use of outer space.

Indeed, the NASA Artemis Accords aim first and foremost to “strengthen peaceful relations between nations”. Therefore, all activities must be carried out for peaceful purposes in accordance with the principles of the 1967 Outer Space Treaty.

The second main principle of the NASA Artemis Accords is the obligation for all actors to ensure transparency in their actions by “publicly describing their own policies and plans in a transparent manner”. Secondly, States must guarantee the interoperability of systems by respecting open international standards and developing new standards if necessary, in order to guarantee the safety of space operations. The following principle governing the NASA Artemis Accords is directly inspired by the 1968 treaty on the rescue of astronauts, the return of astronauts and the return of objects launched into space. NASA also sets out a principle requiring States and other partners in these NASA Artemis Accords to register all space objects that would be sent into outer space. NASA also calls on non-parties to the 1976 Registration Convention to become members of that convention in order to respect the principle of registration of space objects.

The NASA Artemis Accords provide that parties to these agreements must publish their scientific data, “to ensure that the entire world can benefit from Artemis’ voyage of exploration and discovery”. This is in line with the principle of transparency guaranteed by these agreements.

The NASA Artemis Accords provide for the protection of the sites explored, but also address the issue of space resources, already addressed in the space treaty. Thus, NASA authorizes the extraction and use of resources from the Moon, Mars and asteroids “to support safe and sustainable space exploration and development” under strict conditions set out in the Space Treaty, which the parties to the NASA Artemis Accords must respect. However, this principle could be challenged because the Space Treaty states that States cannot own space resources.

To limit interference, the NASA Artemis Accords provide for the principle of “deconfliction” of activities, i.e., the partners will have to communicate to avoid incidents and damage that could be caused by their respective activities. To mitigate this, NASA and the partners to the agreements have committed to “provide public information on the location and general nature of their operations”.

Finally, the last principle governed by the NASA Artemis Accords concerns the issue of space debris. Indeed, the NASA Artemis Accords require the parties to the agreements to act in accordance with the “Space Debris mitigation guidelines”, which is a text of the United Nations Committee on the Peaceful Use of Outer Space (CUPEEA), dating from 2007, and must anticipate the end of the life of satellites by eliminating spacecraft at the end of their missions.

Space debris is a major problem in the apprehension of interplanetary law because it endangers, on the one hand, the terrestrial population but also, on the other hand, the future protagonists of the space conquest. The NASA Artemis Accords aim to regulate the impact of man’s presence, and the pacifist spirit of these agreements also supposes a pooling of solutions allowing optimal management of space debris between countries.

Currently, about eighty-seven percent of satellites, probes, landers and other space objects launched have been registered in the United Nations Treaties and Principles on Outer Space (Convention on Registration of Objects Launched into Outer Space). This allows countries to take into consideration the impact of their missions and make them responsible both in their relations with other actors in the conquest of space and also to push for solutions to limit the damage caused to others. This space waste originates from objects at the end of their lives, or from debris that has been created as a result of collisions between active objects. One example is the accident that occurred in February 2009, when the American Iridium 33 satellite collided with the Russian Cosmos 2251 satellite, generating several thousand pieces.

The preservation of the extra-planetary environment is an important concern for NASA. Mitigation measures can take several forms: either to reduce waste or to prevent the creation of new debris through the design of satellites that have the ability to withstand the impacts of small debris.

In addition, the NASA Artemis Accords, inspired by NASA’s new objectives, seeks to develop operational procedures such as the use of orbital regimes with less debris, the adoption of specific attitudes for the manufacture and maintenance of spacecraft, and studies to better control the trajectory of debris to avoid collisions.

In 1995, NASA was the first space agency in the world to publish a set of guidelines aimed at mitigating orbital debris. Two years later, the U.S. government developed a behavioural standard for orbital debris mitigation based on the NASA guidelines. Other countries have followed suit by adopting their own guidelines, including Japan, France, Russia and the European Space Agency (ESA).

In 2002, after several years of study, the Inter-Agency Space Debris Coordination Committee (IADC), composed of the space agencies of ten countries and ESA, adopted a set of consensus guidelines to mitigate the growth of orbital debris.

In February 2007, the Scientific and Technical Subcommittee (STSC) of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) completed a multi-year work plan with the adoption of a consensus set of guidelines based on IADC Guidelines. These were accepted by COPUOS in June 2007 and approved by the UN General Assembly at the end of 2007.

Today, a good deal of scientific data has been collected and is freely available to help the scientific community and individuals to be informed of the situation. Various means are trying to be put in place to clean up space, such as the use of nets in satellites, or the use of lasers on the celestial vault. These techniques need to be improved.

We understand that this objective of the NASA Artemis Accords is in fact a step forward in the efforts already undertaken to reduce the ecological impact of extra-planetary exploration. In addition, several issues related to the Artemis agreements appear: because of the modern issue of that topic, the international legal framework is uncertain. On the one hand, the 1967 Space Treaty provides that the freedom of exploration and the freedom to use space are enshrined as “the prerogative of all mankind”. However, this freedom is framed by the treaty in order to preserve space and celestial bodies from a number of vicissitudes, such as war and territorial predation. The exploration and use of space can thus only be undertaken for peaceful purposes; which, according to the almost general interpretation of States, does not prohibit the sending of satellites for their national defense.

On the other hand, another international treaty established in 1979 that the Moon, other celestial bodies and their natural resources constitute “the common heritage of mankind” and these resources cannot therefore “become the property of States, international organizations, national organizations or natural persons”. Thus, the exploitation of the Moon by States is prohibited according to the treaty.

Any form of appropriation of celestial bodies is prohibited by the OST, while the NASA Artemis Accords establish that any extraction and use of the resources of the Moon is allowed. By the way this straight is one of its fundamental principles because it will allow for future explorers a better understanding of the space soil composition.

While the industrial and commercial exploitation of natural resources seem to necessarily rest on the appropriation of the resources of celestial bodies, is it possible and licit to proceed to the appropriation of resources without disregarding the principle of non-appropriation of the celestial bodies that contain them?

On the one hand, the United States of America considers that this activity is not contrary to the principle of non-appropriation of the Space Treaty, insofar as American nationals would not appropriate the celestial bodies themselves but only their resources, once extracted. On the other hand, a significant part of the legal experts consider that it is doubtful that the principle of non-appropriation of celestial bodies tolerates the appropriation of their resources. It seems difficult to settle this legal debate in a firm manner. The problem of the exploitation of natural resources in space did not arise at the time of the elaboration of the OST, and its lapidary provisions on non-appropriation do not allow us to grasp the current legal issues in detail.

Moreover, the viability of the Artemis program with the time frame set for it is doubtful given the modest sums allocated to the program under the 2020 budget and the lack of a budget envelope dedicated to the program for subsequent years. According to specialists, program cost estimates range from twenty to thirty billion American dollars. Therefore, seven billion American dollars per year would have to be spent to meet the target by the deadline imposed by President Trump.

However, NASA depends on its subcontractors to meet the targets. Boeing, which is developing the giant SLS launcher, has fallen considerably behind schedule, even though it is reusing existing components. In this context, can the development of the lunar lander, which will comprise three completely new modules with engines to be developed as well as several complex systems, be envisaged in such a short timeframe?

On the other hand, the chosen architecture requires the development of a new stage for the SLS launcher whose development has been halted to enable Boeing to meet its deadlines.

Thanks to the NASA Artemis Accords, the international legal community will have a good idea of what these regulations really mean in the context of lunar activities because agreements provide more precision than pre-existing treaties. In addition to the technological advancements Artemis will undertake, one of the outcomes of this program will be to refine and develop the rules of space. These rules will be defined by the mission and the operational actors in the field. They will therefore meet the needs of these actors and will be adapted to ensure the success of the programs.

In the end we can understand that the NASA Artemis Accords are a real revolution in relationships. Its pacific and common natures stand out of these texts and we can ask ourselves the following questions: can we see that agreements as a new form of peace treaty in the war in space conquest? That these agreements will initiate a new spirit of what the space conquest is? Defined it as a cooperation between States to fulfil the legal state of the space area that is an international place where every States can have a word to say… and a foot to lay.

This article was written by Marina NOVAC, Polina SHTEPA, Morgane CAUSSINUS, Jasmine BOUABOUD, Saina BURNASHEVA and Diana DA SILVA (Paris-Saclay).

Understanding microstates and international law

What are microstates? Are they legal? How are they formed? From the point of view of public international law, the State is defined as a group of individuals established on a given territory under the exclusive and effective authority of a government. There are three constituent elements of the State in international law; a population, a territory, a government or political authority.

Territory is the space within which the sovereign State exercises its powers. The State is also a human collectivity within a society. It includes land territory (soil, subsoil, internal waterways); maritime territory (internal waters, territorial seas up to twelve nautical miles, the contiguous zone, the EEZ (Exclusive Economic Zone) and the continental shelf; and air territory (over land and maritime territory). Within the territorial limits, State jurisdiction is full, exclusive, and complete.

The population, on the other hand, is the set of individuals who are attached to the State by a legal bond: nationality. The State has exclusive jurisdiction over the acquisition and loss of nationality. Thus, international law does not interfere with domestic law as to the modalities of the United Nations Charter (Article 2 paragraph 1) states that “the organization is founded on the principle of the sovereign equality of all its members”. Legally, independence is the criterion of sovereignty (cf. the Île de Palmas case). At the same time, the sovereignty of the State can help it to keep its independence: other States cannot interfere in the affairs of a sovereign State.

However, alongside traditional States, there are small States, still called microstates. A microstate is a sovereign State with a small population (less than five hundred thousand inhabitants) or a small area (less than one thousand square kilometers), generally with few resources. They are full members of the U.N. and major international organizations. Although today the debate on the nature of these political entities is closed or almost closed, microstates have never managed to find, in the minds of most jurists, a place equal to that occupied by other traditional States.

From the above, we will try to provide information on microstates in order to better understand the particularity of these States. Thus, in the first part, we will analyze three microstates, the State of Monaco, the Vatican and the State of Malta (Chapter 1), while in the second part we will focus on certain States that exist but are not recognized by the international community (Chapter 2).

CHAPTER 1: PRESENTATION OF THREE MICROSTATES

Concerning microstates, Earth, the third planet in the Solar system, is made up of five continents made up of a total of one hundred and ninety-seven countries recognized by the United Nations. Different by their sizes, we will present here not exhaustively the smallest States of the world. The focus will be on three small States as examples, namely the State of Monaco, the Vatican and the State of Malta.

THE PRINCIPALITY OF MONACO

Concerning microstates, the Principality of Monaco, abbreviated as Monaco, is an independent sovereign country located in Europe. It is located in the south of France. Except for the southern coastline of the Mediterranean Sea, the whole territory is surrounded by France on the north, west and east sides, with an area of two square kilometers, of which about half a square kilometer is reclaimed from the sea. As one of the most densely populated countries in the world, Monaco has a resident population of only more than thirty-two thousand people, of which more than six thousand are natives of Monaco.

Monaco is a typical microstate, ruled by the Grimaldi family, and a country with a constitutional monarchy. The name Monaco derives from the ancient Greek Monoikos: according to legend, Monoikos is the name of a temple built near the area by the Greek Phocis in the sixth century B.C.; because Hercules had passed through the local area, the Phocis people built the temple Monoch, which means temple, to commemorate Hercules. Later, this name gradually evolved and became what is now Monaco.

In 1215, Monaco was once again established as a colony of Genoa. Since 1297, after François Grimaldi disguised as a Franciscan monk occupied the fortress, Monaco has always been under the Grimaldi family. The only exception is that from 1793 to 1814, Monaco came under French control. From 1815 to 1860, the Vienna Conference designated the Kingdom of Sardinia as the protectorate of Monaco. It was only in 1861 that Monaco’s sovereignty was confirmed through the French-Monaco Treaty.

Since 1911, Monaco has implemented a constitutional monarchy, with the prince as the head of State. The current Prince Albert II, succeeded to the throne on April 6, 2005. The Monaco administration is a four-member government committee chaired by the Prime Minister. The Prime minister is a French citizen, who is selected and appointed by the prince from a number of candidates submitted by the French government. According to the 1962 Constitution, the prime minister shares power with the unicameral national assembly. The twenty-four members of this legislature are elected from the list by universal suffrage and serve a term of five years.

In a sense, Monaco has an indissoluble bond with France. This is not only because most of its land is surrounded by France, but also because the two countries signed a treaty in 1918, stipulating that France provides a limited amount of money in Monaco. Protection, and Monaco’s policy should be adjusted in accordance with France’s political, military and economic interests. According to a treaty signed between the two countries in 1919, once the Monaco head of State dies without leaving a male heir, Monaco will be merged into France. However, in 2002, the two countries entered into a new treaty, which changed this clause. Monaco will always maintain its independent State status, while France will continue to provide defense.

Concerning microstates, to this day, although Monaco is an independent sovereign country, although the Grimaldi family is the monarch of Monaco and the head of State, in fact Monaco is still the protectorate of France and is greatly influenced by France. The Prime minister is a French citizen; economic, foreign and social policies are mostly coordinated with France, and the French military is also responsible for national defense.

THE VATICAN CITY

Concerning microstates, the Vatican City is located on the northwest of Rome, the capital of Italy. It is an independent sovereign State. Excluding private countries, the Vatican is the smallest sovereign country in the world, with a territory of only half a square kilometer and a permanent population of about eight hundred people. Its predecessor was the Papal State. Since 1929, it has been identified as a sovereign State by the Lateran Treaty, accepting the direct rule of the Holy See, and implementing a political system that combines church and State. As a small country, how did the Vatican avoid being annexed and become a State?

When the Western Roman Empire fell, the bishop of Rome took the opportunity to plunder the land. Later, the Eastern Roman Empire unified the whole of Italy and handed over the actual rule of the entire Roman city to the bishop of Rome. The bishop of Rome called himself the Pope and established many religious temples. Saint Peter’s Basilica and the Vatican Palace were both built during this period. With the expansion of the power of the bishops of Rome, a papal State with the bishop of Rome as the monarch and the city of Rome as the capital gradually emerged in Italy. The territory once reached forty thousand square kilometers, about one seventh of the current area of Italy. At that time, the main residence of the Pope was in the Vatican Palace, and the Vatican became the center of national political and religious activities.

Concerning microstates, after the establishment of the Kingdom of Italy, the Pope’s rights were threatened. The previously expanded territories were taken back. In the end, even Rome was occupied by Italy as the capital. The bishop of Rome was forced to retreat to the Vatican Palace. The rights granted before were also Deprived, the Papal State disappeared. For this reason, the relationship between the Bishop of Rome and Italy were tense, even reaching the point of hostility. Under various circumstances, on February 11, 1929, the Italian government of Mussolini and Pope Pius XI signed the Lateran Treaty. Italy recognized the Vatican as an independent sovereign State. Since then, the Vatican has become a city-State that is integrated with politics and religion. Although the Vatican is an independent sovereign country, it relies heavily on Italy. At present, the main residents of the Vatican are Italians, and all the necessities of production and life of its citizens, such as tap water, electricity, food, fuel, and gas, are all supplied by Italy.

THE STATE OF MALTA

Concerning microstates, a member country of the European Union, the State of Malta is one of the smallest independent countries on planet Earth. Geographically, the State of Malta is three hundred and fifty kilometers away from the African coast and one hundred kilometers away from Sicily. Malta is an archipelago made up of three islands and around twenty islets. Said State is an independent microstate recognized by the United Nations. According to the Maltese constitution of 1964, revised in 1974, 1987 and 1989, the State of Malta is a parliamentary democracy headed by a president appointed by parliament for a five year term. The Prime minister, appointed by the President, is here members of parliament made up of sixty-five members elected by universal suffrage. This is what can be said concerning microstates.

CHAPTER 2: STATES THAT ARE NOT RECOGNIZED BY THE INTERNATIONAL COMMUNITY

PALESTINE

The history of Palestine is central to the history of international law. The Israeli-Palestinian conflict, born out of the creation of the State of Israel in 1948 and the various Arab-Israeli wars, has been the occasion of many U.N. sessions, many resolutions. The 1947 U.N. partition plan was never implemented. The origin of the question of Palestine is rooted in the establishment of mandates created by the League of Nations (SDN) following the dismantling of the Ottoman Empire and its division into zones of influence between France and Great Britain.

If the preceding events, and in particular the decision of the first Zionist congress in Basel in 1897 to establish a Jewish national home in Palestine, were the bases of the project, the Balfour declaration of 1917 enabled the Zionist movement to obtain the support he needed so that the Jewish presence in Palestine was a right and not a tolerance. By integrating the Balfour declaration into the very text of the mandate on Palestine in 1922, the League of Nations did not take into consideration the wishes of the Palestinian population expressed during the various European congresses, namely the support of the populations until the establishment of an independent nation.

In 1945, when Great Britain handed over its mandate to the newly created United Nations Organization, the latter faced the consequences linked to this non-application of the mandates, in particular the incompatibility of two contradictory promises, that made to the Zionist movement. With the Balfour declaration and that made orally to the Palestinians of a future autonomy in an independent State, like neighboring States. Thus was born the question of Palestine. As a response to this situation, the U.N. recommended dividing Palestine in two with an economic union. Thus, Great Britain would have to leave the area on August 1, 1948, while liberating on February 1, 1948, the territory allocated to the Jews, including a port, in order to allow them to welcome significant immigration. From November 1, 1948, the United Nations was to gradually take over the administration in order to return it to the two countries created on the day of their independence, scheduled for October 1, 1948 at the latest.

Internationally, the question of Palestine has for many years been viewed solely from the perspective of the refugee problem, without taking into account the reality of the Palestinian identity of this region. In doing so, the non-application of U.N. Resolution 194 (III) by Israel, in particular on the key issues of the status of Jerusalem, due to return and the right to compensation, as well as its rejection of the Lausanne Protocol, allowed the situation to deteriorate and Israel to strengthen its potential in order to pursue the pattern desired by the Zionist movement, namely more land and fewer Arabs. Indeed, a debate took place in the weeks following the war for the mention of the occupied territories. In the end, in the face of American pressure, it will be nothing, the notion of territories once again leaving the possibility of an interpretation that Israel will not fail to use.

On December 10, 1969, the United Nations noted the failure to comply with the provisions of paragraph 11 of U.N. Resolution 194 (III), and that the refugee situation therefore continued to be a matter of serious concern. In this same resolution, and for the first time, the notion of the people of Palestine is underlined. It wasn’t until fifty-two years after the Balfour Declaration, where the only mention was that of the Jewish people and the Palestinians were reduced to being represented as non-Jewish communities in Palestine, then later as refugees or displaced persons, so that the mention of inalienable rights of the people of Palestine appears.

Recognition of the question of Palestine would not be confirmed until Yasser Arafat’s reception at the U.N. on November 13, 1974, following a request from fifty-six States to put the question of Palestine on the agenda. Arafat delivered, to the ovations of the room, a speech in which a phrase will become famous: “I came today with an olive branch and a revolutionary rifle. Don’t let the twig fall from my hand. I repeat do not let the branch fall from my hand”. The question of Palestine was raised during the first extraordinary session of the General Assembly of the United Nations opened on April 28, 1947. This session decided the creation of the United Nations Special Commission on Palestine, whose work was carried out.

SOUTH SUDAN

We can’t talk about South Sudan without talking before of the SUDAN Federation to which it was born in the 2000s: from its historical name NUBIA, Sudan will go down in history as Kush, Meroe, Nobatie, Markurie, Dju, Sultanate of Sennar, Sultanate of Darfur and Sudan. In the 1820s, Egypt conquered Sudan, which broke free from this domination in 1885 under the aegis of the religious leader Muhammad Ibn Abdallah. To regain independence from Egypt, the country will wage battles against British and Egyptian troops through fierce guerrillas. It will end up besieging Khartoum which it will take into the hands of British General GORDON.

In 1956, independence was proclaimed, but the government in Khartoum reneged on promises made to the southern provinces to create a federal State, which led to a mutiny led by officers from the south, which was the start of a war (1955-1972). In 1965, the Sudanese managed to organize elections which will hardly resolve the situation because the country will be undermined by wars between Marxists and non-Marxists and again between Christians and Muslims. Before its break-up, Sudan was a federation of fourteen States. The impossibility of uniting all these peoples in one and the same State results from the great differences, especially the religious differences of the peoples who compose it. These wars will forever mark the split of Sudan into two: the Muslim North Sudan and the Christian South Sudan.

TRANSYLVANIA

Country to the legend of DRACULA, Transylvania was in Prehistory the region, corresponding among other things to pottery; in Antiquity, its history corresponds to the history of Dacia. The development of the region will continue during the period of peoples’ migration until the founding of the Principality of Transylvania, a thousand years ago. Today, the region seeks independence.

This article was written by Mariam CHERIF, Zineb EL AATIQI, Gassama Babacar FARY, Wu CUIYI and Ismail SOW (Paris-Saclay).

NASA and the rules for naming its spacecraft

For this new Space Legal Issues article, let us have a look at NASA and the rules for naming its spacecraft.

Mercury, Apollo, Ares, Artemis… are the names of NASA’s most famous spaceships, spacecraft and large-scale missions. Each of them is as firmly associated with the history of space exploration as with its first owners, the gods of Greek and Roman mythology. The names of the gods were the first NASA missions, which set some tradition of linking space missions to mythological sources. But recently, NASA has begun to name after the open competition among children and students. And in 2018, the first spacecraft was given the name of a living person. So, is there a NASA concept or project naming system? Who invents and assigns names to spacecraft?

FROM MERCURY TO ARTEMIS

NASA’s first mission was called the “Mercury Project” in honor of the Messenger of the Gods at the suggestion of Glenn Silverstein, NASA’s Director of Space Flight Programs in the 1950s. As some sources note, this was a tribute to the American tradition of calling rockets the mythological names of characters in Greek and Roman mythology (Thor, Atlas, Centaur and Saturn). And those, in turn, were associated with the Nike, Ajax and Hercules military missile programs. There is no official version to justify the name of the first NASA space program and the other options considered, but it was Mercury who started the whole chain of projects with mythological names.

Silverstein also became the author of the name of the Lunar mission “Apollo”. NASA’s historical record states that he chose this name one evening in 1958 while reading a book on mythology. Inspired by the image of the deity, he allegedly noted that the figure of Apollo on a chariot pulling the Sun along the sky corresponds to the scale and ambitions of the program. It is noteworthy that in ancient times, the planet Mercury in the morning sky was called Apollo.

Since then, the names of the ancient Roman and Greek gods were assigned to dozens of programs. One of the new large-scale projects is Artemis, a program to return people to the Moon, launched in May 2019. The name is very symbolic, because Artemis was the twin sister of Apollo, whose name was called the first lunar mission of the USA. In addition, the choice of the goddess is associated with the intention to land the first female astronaut on the Moon in 2024. This time, the goals of the Artemis Moon return mission are to create the first Moon base for the subsequent development of Mars.

NASA RULES

Despite all the romanticization of spaceship names, the naming process at NASA has its own rules, which are enshrined in a corresponding document. The first protocol was developed by a special committee on projects in 1960. At the first workshops, the committee attempted to establish a specific naming scheme and procedure for mission categories. The committee emphasized that flight names should be tied to the mission and have a serial number. A year later, the basic principles of NASA’s spacecraft naming were approved:

  • The name of the project should be a simple euphonic word;
  • The name should not be duplicated and confused with other projects of NASA and not NASA;
  • Names should reflect the mission of the project whenever possible;
  • Names can be serialized (only after a successful flight or achievement).

During the work of the committee, many names were selected and reserved, most of them were never used, since the projects themselves were revised or completely cancelled. Many NASA projects began to bear simply technical names. And after two years, the structure was abolished as unnecessary. In 2000, NASA adopted a new Policy Directive on “Official names for Major NASA Projects”. The following are indicated as basic principles:

  • Project names will be simple and easily to pronounce;
  • Names will not be duplicate or be so similar to other names that they create confusion;
  • Project names will be serialized (when appropriate), including Arabic numbers;
  • Acronyms are to be avoided in selecting names except where the acronym is descriptive and easily pronounced;
  • Names will be printed with only the initial letter capitalized.

The name selection process itself is a rather bureaucratic regulation with responsible persons, who are also enshrined in the NASA directive. The key figure in this procedure is the Deputy Associate Administrator for Office of Communications. He reviews the recommendations of the ad hoc committee, makes a selection and submits to the Administrator for final approval, and then makes a public announcement of the program name.

SHIP TO ACCOUNT

As we understood, one of the main criteria for the name in NASA is laconicism. But given the number of tests, flights, and program stages, “call signs” and numbers for numbering spacecraft and modules come to the rescue of official names. The right to choose a name for NASA’s manned spacecraft was granted directly to astronauts. During the Mercury program, Alan B. Shepard Jr. assigned for the flight, chose the call sign “Freedom 7” for his ship, the figure is associated with a team of seven astronauts and the numbering of the capsule and launch vehicle. And the second manned ship was called the “Liberty Bell 7”.

In the subsequent Apollo program, the tradition continued and each astronaut chose code names for the command and service module. So the names were invented: Gumdrop and Spider (Apollo 9); Charlie Brown and Snoopy (Apollo 10); Columbia and Eagle (Apollo 11) and others. One of the turning points was the Gemini mission, when astronauts Virgil Grissom and John Young named their ship “Molly Brown” from the musical comedy of the same name. And after the third Gemini mission, NASA announced that “all Gemini flights should use one easily remembered and pronounced name as the official nomenclature of spacecraft”.

That is, if a program or mission is designated by one proper name, then to designate ships and to avoid confusion during communication, more complex names with abbreviations and numbers are used. For example, in the Apollo 11 mission, the launch vehicle was called Saturn 5, which launched into space two ships that bore the names that were symbolic and patriotic for the United States of America. The command module in orbit was named “Colombia” (the name of the Statue of Liberty), and the lunar module for landing “Eagle” (as a symbol for the United States of America). The Arabic numerals in the names are justified by NASA’s fears that the Roman ones may not be understandable to all nations.

SPACE SHUTTLES

The new Space Shuttle spacecraft concept has set a new naming trend for NASA. A precedent was set in preparation for the launch of the first shuttle, a reusable spacecraft, which was designed to transport astronauts and cargo into low Earth orbit (LEO). The original working title of the first Space Shuttle was “Constitution”. For greater symbolism, they planned to launch it on 1976 Constitution Day. However, new players appeared in the story – fans of the TV series “Star Trek” launched a campaign demanding to name the “Enterprise” in honor of a fictional starship. They collected nearly one hundred thousand signatures and wrote letters to President Gerald Ford. A couple of weeks before the launch of the first shuttle, Ford vetoed the officially proposed name and stated that it was “a little partial to the name Enterprise”. He justified this by serving on the same ship of the U.S. Navy, and also that the space shuttle opens a new historical page in the history of space exploration and therefore it would be a mistake to call it the Constitution.

Subsequent shuttles were named Columbia, Challenger, Discovery, Atlantis, and Endeavor. In this chain of names, another thematic consistency is traced; they are called the iconic sea ships. For example, the Discovery is named after two ships under the command of the great explorers Henry Hudson and James Cook. The shuttle Columbia is named after the “Columbia Rediviva”, the first boat to circumnavigate the world. And the shuttle Atlantis is connected with the first American ship for oceanographic research.

NAME THE ROVER CONTEST

In 1994, NASA launched a new tradition with spacecraft names. The first American Mars rover was named after an open competition among schoolchildren and students, which was announced three thousand and five hundred options. Participants had to offer the heroine and justify in an essay how her name could translate the heroine’s achievements to the Martian environment. The winner-name “Sojourner” was proposed by 12-year-old Valeria Ambroise, in honor of an African American women’s human rights defender. Also the literal meaning of this pseudonym is “traveler”. So, on the 30th anniversary of the robotic research of Mars, NASA announced the name “Sojourner” for the first research robot on the red planet Mars Pathfinder.

The competitive approach was also fixed in the name of other NASA rovers: “Spirit”, “Opportunity”, “Curiosity”. All of these names were suggested by the children. In November 2019, NASA completed another contest among schoolchildren in the name of the rover. The new robot scientist is still conventionally called “Mars 2020”.

The organizers themselves explain this as “part of a public engagement campaign to highlight NASA’s missions from the Moon to Mars”. Initially, such contests were intended to interest young minds in the subject of space exploration and to expand research potential. But later, NASA came to understand that this is a great method of image promotion. And along with the competition for the Mars 2020 rover, NASA launched the Send Your Name to Mars campaign so that anyone can send their name, which will be printed on a silicon carrier and attached to the rover. One of the participants in the action was the Hollywood actor Brad Pitt, to whom NASA issued a registered boarding pass to Mars.

FIRST HUMAN NAME FOR SPACECRAFT

Concerning NASA and the rules for naming its spacecraft, this honor was awarded to physicist Eugene Parker, who first issued the theory of the solar wind, a constant outflow of particles and magnetic fields on the Sun. His name is given to a solar probe launched from Canaveral station on August 12, 2018, in the presence of his 91-year-old namesake. The spaceship contains four sets of scientific instruments for collecting data on solar radio emission, magnetic fields, plasma and structures in the hot external atmosphere of the Sun. As a sign of respect, NASA secured Dr. Parker’s photographs on his probe and his groundbreaking article on the solar wind, which excited the scientific community in 1958.

NEW NAME ORDERING PROCEDURE?

So, having examined the history of the name of NASA’s iconic programs, three sources can be noted:

  • NASA proposal developed internally and proposed by a special committee;
  • Suggestions of astronauts in manned missions;
  • Essay-based student competition.

Concerning NASA and the rules for naming its spacecraft, NASA’s originality was followed by the European Space Agency (ESA), Chinese and Japanese corporations that also use mythological names in the name of spacecraft and vehicles. Other key players in space research – Russia and China – have a slightly different policy. The first Soviet spacecraft bears the simple, uncomplicated name “Sputnik”. Subsequently, the U.S.S.R. used the names “Sunrise”, “East”, “Peace” and “Salute” – these names are also quite concise, but unlike NASA, they are not romanticized. And then went the dry names for the research object “Moon” and “Mars” with digital additions. The names of the Chinese ships reflect the communist system of the country, “The Aleut East” and “The Great Campaign”.

It is noteworthy that the current Directive “Official Names for Major NASA Projects” expires on February 14, 2020. Therefore, in the policy of naming spaceships, new changes will probably be introduced. But one thing is clear: all the names of NASA’s spacecraft are symbolic, recognizable enough and carry a charged positive meaning. These names lead the attention of earthlings beyond the horizons of our planet and light the eyes of millions of children. This is what can be said concerning NASA and the rules for naming its spacecraft.

This article was written by Svetlana SAMOILOVA (Paris-Saclay).

Monaco in space

For this new Space Law article on Space Legal Issues, let us have a look at Monaco and its space program. How is the Principality doing in space? Has it signed and ratified the Outer Space Treaty? Does the microstate have any space assets? Let us have a look!

INTRODUCTION

Monaco’s history is marked by invasions but also by its neighbors’ influence, Italy and France. Monaco is a microstate. The Rock, as it is nicknamed, is a principality which has adopted its Constitution on December 17th, 1962 (modified in 2002) after a diplomatic crisis with General DE GAULLE’S France. In 1993, that microstate rejoins the Concert of Nations by being officially accepted in the U.N. (United Nations). Eleven years later, the principality enters a bit more in the international stage by joining Europe’s Council.

Under Prince Albert II’s impulsion, the environment and the themes linked to sustainable development are the priorities of the Monegasque State’s Politics, on the national and the international plan. The princely government’s actions concern the importance of biodiversity, resources’ management, the reduction of greenhouse gas and a policy determined in favor of a sustainable city. Prince Albert II’s determination in favor of sustainable development of the principality results in his government’s actions, whether it is the preservation of biodiversity, resources’ management or the implementation of a climate-energy plan. The State’s services contribute every day in their missions of public service to implement all or part of that policy.

Among those missions, the implementation of many international agreements and conventions ratified by the Principality, such as the Kyoto protocol or more recently, the Paris Agreement. The Kyoto protocol, signed in 1997, aims to reduce greenhouse gas emissions. The objective was to reduce by five percent 1990’s level between 2009 and 2012. That protocol has come to complete the framework convention of the U.N. on climate change.

The Paris Agreement is the first agreement on climate universally approved. The main objective is to reinforce the worldwide answer to the threat that is climate change by maintaining the increase of the world’s temperature to a level inferior to two degrees Celsius in comparison to pre-industrial levels and to keep trying to limit the world’s temperature under one and a half degree Celsius. The Paris Agreement was opened to sign on April 22nd, 2016 — which is Earth Day — at the U.N.’s headquarters in NEW YORK. It came into effect on November 4th, 2016, thirty days after the “double threshold” was reached (the double threshold being a ratification by fifty-five countries representing at least fifty-five percent of worldwide emissions). Since then, even more countries have ratified the agreement and keep doing it, reaching a total of one hundred and twenty-five parties at the beginning of 2017. To this day, one hundred and eighty-three countries out of one hundred and ninety-seven countries have ratified.

Monaco is also a historical member of the Washington Convention on the international trade of endangered wild fauna and flora species, called CITES, whose provisions are implemented through a system of licenses. Finally, the Principality of MONACO actively participates in the preservation of the Mediterranean Sea mainly through the RAMOGE accord, the Pelages sanctuary, the Barcelona Convention. It also welcomes in its midst international entities which are designed for the study and the preservation of marine environment (ACCOBAMIS, AIEA…). Regarding space, MONACO has only signed one of the five international treaties which are devoted to it. It is in 1968 that the Principality signs the treaty on the rescue and return of astronauts and the restitution of objects launched in the extra-atmospheric space.

With the ratification of that treaty, MONACO finds its legitimacy to participate in space conquest. For example, the CEO of SSI Monaco, “a satellite operator of MONACO and an integrated satellite telecommunications services provider,” believes that the faculty to connect more efficiently to Internet and to profit of a more stable and faster connection is a recurring need demanded by the population worldwide. Like water or electricity, connectivity is an expected feature. Moreover, the demand for higher debit is growing. He believes that those demands can be answered by satellites.

MONACO IN SPACE

Thanks to the signature of an agreement between Space Systems International Monaco (SSI Monaco) and Axiom Space which is “an American aerospace manufacturer and orbital spaceflight services company” whose ambition is to develop private spatial flights towards the International Space Station, the Rock has the possibility to send a citizen of MONACO to the ISS (becoming the 19th sovereign nation to send an astronaut there). Nevertheless, that trip, programmed initially in 2020, was reported due to the Corona-virus pandemic.

It’s mainly thanks to the fact that Axiom Space is full of brilliant researchers, scientists and engineers, that this American enterprise is able to position itself on the innovating market that is the space tourism. Having in its ranks experienced astronauts, this enterprise can now give an innovative training so as to allow VIPs to travel in space. SSI Monaco’s new partner boasts about its ability to deliver “a training resembling the one given to people from the NASA.” This training is exclusively taught in English and lasts for tens of weeks (with a few months of training on Earth). The price of the ticket by seat for eight days in the station is fifty-five million American dollars which is equal to almost forty-eight million euros. It’s hard to doubt their words when one studies their professional career: Michael LOPEZ-ALEGRIA, director of the commercial development at Axiom Space, is a former NASA astronaut who has carried out ten EVAs in space during his career, establishing an American record in terms of total duration of extra-vehicular activities, with a total of sixty-seven hours and forty minutes out of the space station.

This very promising partnership between SSI Monaco and Axiom Space would translate on the long term in a throughout study of market for space tourism and the possibility to install a Monegasque space module which would first be attached to the ISS before it would separate from it, thus becoming the first private spatial station (around 2030). With this accord, the Principality enters now the concert of States turned toward space conquest.

The SSI isn’t at its first try. Space conquest of this Monegasque enterprise started in 2004 when the director Ilhami AYGÜN offered to Prince Albert II the project of launching a satellite in orbit which would lead to a historical agreement between the enterprise SSI Monaco and the Monegasque government in 2009. That project is concretized by the launching of the first Monegasque satellite five years after that agreement.

That satellite is the MonacoSAT-1, manufactured by Thales on the Cannes’ SITE and launched from Cape Canaveral in FLORIDA by SpaceX on April 27th, 2015. It is today situated on a position which “belongs” to MONACO as a sovereign State, that position being somewhere in the geostationary orbit (GEO). The enterprise controls its satellite from the Monegasque territory in which their premises are localized. MONACO can be proud to have one of the largest European satellites which is part of the European society of satellites’ (SES) fleet. It covers an area which goes from NORTH AFRICA to CENTRAL ASIA, passing by EUROPE and a part of RUSSIA, which encompasses one and a half billion people. That satellite brings to all those people telecommunications services: telephony, Internet but also and most importantly television services. The MonacoSat-1 is made to last sixteen years but its resources’ good management allows us to think that it could last up to twenty years.

When it will be off service, a second satellite will replace it: the MonacoSAT-2. Indeed, it could be launched by the end of 2022. However we still do not know a lot of things about that second satellite. For example, we do not know when exactly it will be launched, the surface it will cover or the people that will participate in the project. Still, there is no doubt that we should anticipate the fact that it will be bigger, more powerful and that it will cover a larger area while distributing Internet at an ultra-high debit. While waiting for the launching of that future satellite, another Monegasque enterprise participates in the Monegasque space conquest (ORBITAL SOLUTIONS).

On September 2, 2020, the first Monegasque nanosatellite was launched into space on a Vega rocket VV16 from the KOUROU space center in GUYANA with fifty-three others nanosatellites. This is the first European mission to launch several small satellites for ARIANESPACE. The name of the Monegasque CubeSat is OSM-1 CICERO (Community Initiative for Cellular Earth Remote Observation), it has a lifespan of three to five years and fun fact: its size does not exceed the size of a shoe-box and it weighs ten kilos! It took many months because of the COVID-19 crisis and adverse weather conditions for it to finally revolve around Earth. Indeed, the satellite launch was supposed to take place on June 18, 2020. It must join the constellation CICERO for the collection of measurements on the climate.

Its launch in space takes MONACO to a new dimension. This corresponds to a double intention: to encourage technological innovations in favor of the environment and a more rational use of the satellites which are above our heads in outer space. This positions MONACO in “New Space” technologies, which is an asset for the principality. Based on the Tyvak nanosatellite systems design, this nanosatellite was entirely manufactured in MONACO. It is equipped with cutting-edge technologies and will allow to collect valuable information. It carries within it an instrument originally built by the NASA (Jet Propulsion Laboratory) which performs radio-occultation of GPS and Galileo signals provided by GeoOptics, in order to improve weather forecast models. With this technique, the CubeSat manages to collect atmospheric data of temperature and pressure from the ground to the end of the atmosphere. Thus, it is something very precise and very sophisticated.

CICERO circles the Earth every ninety minutes at a speed of twenty-seven thousand kilometers per hour and at an altitude of five hundred and thirty kilometers (LEO). It should be the first in a long line since ORBITAL SOLUTIONS and its Chief Executive Officer, Mr. Francesco BONGIOVANNI, aim to launch dozens of others to gather environment and climate data. They deeply wish to involve students from MONACO so that they can come and design a nanosatellite themselves in the FONTVIEILLE laboratory.

ENVIRONMENTAL STRATEGIES

The principality of MONACO is actively engaged in the protection of biodiversity and to succeed, Monaco seats in international authorities which campaign for environmental development and ensure the effective implementation of international Conventions and Agreements, especially the Kyoto protocol and the Paris Agreement. Moreover, the princely government has also internally implemented its own juridical tools in favor of environmental strategies. MONACO’s action in favor of sustainable development can be summed up in three main points:

  • Management of natural heritage. So as to preserve biodiversity, MONACO has made the management of natural heritage one of the pillars of its sustainable development policy. Located at the edge of the MEDITERRANEAN Sea, the principality protects its marine space as well as all its territorial waters. The Principality has, on top of international laws, implemented a legislation on its own in favor of his objectives for the environment. MONACO also has a Maritime Code for the protection of its sea floor;
  • The implementation of an energy-climate plan. A good protection of the environment depends inevitably on the reduction of greenhouse gas emissions. So as to achieve that goal, MONACO has undertaken an internal policy which prioritizes the consumption of renewable energies which has for consequences the progressive reduction of greenhouse gas’ impact on the ecosystem and reach carbon neutrality in 2050;
  • Actions in favor of a sustainable city. The Monegasque government also ensures the quality of life in the city-State. For that, water and waste managements are key-elements of life in MONACO and with the adhesion and the engagement of the population at the side of the government. The princely government ensures the conservation of the quality of the marine and terrestrial ecosystem by carrying out monitoring of all activities like bathing, noises, and controls of the quality of air…

Conscious of the importance to protect the fauna and flora, the Principality, on top of permanent daily actions for the conservation of the biodiversity, enacts the law n° 1.456 of December 12th, 2017 which could be considered as the environmental Code of Monaco. That law applies in the city as well as the Maritime Code and all international conventions ratified.

THE ROCK, PROTECTOR OF THE SEA: A GOOD SIGN FOR SPACE?

On May 28th, 1993, MONACO signed and ratified the Montego Bay Convention dealing with sea law. In 2012, the election of MONACO at the presidency of the Reunion of States parties at the Convention of the United Nations on the sea law has been perceived as a token of appreciation of the contact politic of the principality in favor of the protection of seas and oceans as well as a mark of trust in its capacity to direct projects of that magnitude. That competence has been particularly recognized when MONACO presided the Sixth Commission of the U.N.’s General Assembly in the autumn of 2010. Finally, with the RAMOGE Agreement and the Barcelona Convention, MONACO has even more actively participated to the conservation of its waters and thus, by extension, of the MEDITERRANEAN Sea. In fact, the RAMOGE Agreement reunites the cities of the PACA Region, the city of MONACO and the cities of ITALY. The goal is to become a pilot area in conservation and in fighting the pollution in marine environment. Thus, a multidisciplinary cooperation, which involves territorial administration, scientific institutions, users of the sea, has been established to conduct joint actions. Parties at the RAMOGE Agreement commit to an integrated management of their coastal areas and to heighten awareness.

The Principality is an area rooted at the edge of the MEDITERRANEAN Sea, which is why it is essential for the city to protect its maritime space. From the 1970s, MONACO has set a goal for itself: to protect its marine environment. It has thus created a marine reserve of 50 hectares in the LARVOTTO (a residential borough in MONACO). MONACO’s environmental direction implemented programs of inventory and monitoring of marine and terrestrial species, which will allow it to assess the pertinence of the measures that it takes.

This article was written by Yacine BENARAB, Aurélien CORNE, Julie DODIN, Rémy JIN, Kévin MAYELE, Hawawou Modjissola SADISSOU and Flavien SALGADO (Paris-Saclay).

MirCorp, the first New Space Company

For this new Space Legal Issues article, let us have a look at MirCorp, the first New Space company. August 28, 1999. Viktor Afanasyev and Sergei Avdeyev, Russian cosmonauts, and Jean-Pierre Haigneré, French spationaut, leave the Mir space station, during a mission supposed to be the last on board the Russian space station. But a final mission will be organized eight months later. This little-known episode reveals a plan that seemed insane at the time: to privatize Mir.

We are leaving the station with no hope of another crew replacing us”. Russian cosmonaut Viktor Afanasyev utters this sentence at the end of August 1999, as he prepares to leave the Russian Mir space station. He is with Sergei Avdeyev, another Russian cosmonaut, and their French colleague Jean-Pierre Haigneré. They have just completed their last mission aboard these facilities in orbit around the Earth. And on August 28, 1999, a little more than twenty years ago, their capsule landed in the steppes of Kazakhstan. At the time, in the collective imagination, Mir was living its last months. The station launched in 1986 is aging. Russia has invested in the International Space Station (ISS) project, and does not have the funds to finance both.

In seven months, the Russian station will have ceased to exist”, wrote the Belgian daily Le Soir, when the three men returned. “Empty, Mir can rest in peace”, headlines the French daily Libération. Their mission is billed as the last of the trips to the Russian station.

Return aboard Mir

But space station Mir will not die until March 23, 2001, disintegrating in the atmosphere above the waters of the southern Pacific Ocean. And before the station disappears, two Russian cosmonauts will return aboard. They will spend seventy-three days carrying out work to keep it functional, as part of a private mission. This little-known mission highlights a project that, at the time, was presented as totally crazy: to privatize, in a way, the Mir space station.

Objective: to keep Mir in working order

This final mission really started on April 4, 2000, again in the steppes of Central Asia. Two Russian cosmonauts take off from the Baikonur Cosmodrome in Kazakhstan: Sergei Zalyotin and Aleksandr Kaleri. Their objective is “to do everything necessary so that the space station is not condemned at short notice”. According to the American daily The New York Times, it is about fixing leaks, replacing deteriorating batteries… The two men are also working on several components outside the space station Mir.

This mission, called Soyuz TM-30, must also allow the space station Mir to always be able to be controlled from Earth if the station were to be deorbited. “Operationally, it was a success, the objective was met”. Although “it would have taken other missions” of repair and maintenance to keep the space station alive for the long term. And this final mission, which ended with the return of the cosmonauts in June 2000, marks a turning point in the history of the conquest of space: “It is estimated that this is the first manned space flight financed by private funds”.

The privatization of space station Mir

The company that is funding this spaceflight is called MirCorp. MirCorp was a commercial space company created in 1999 by space entrepreneurs and involving the Russian space program that successfully undertook a number of firsts in the business of space exploration by using the aging Russian space station Mir as a commercial platform. Its actions were highly controversial as it created a roadblock to the International Space Station (ISS) in creating a viable, low cost alternative. This structure based in Amsterdam, the Netherlands, was then sixty per cent owned by Energia (a Russian manufacturer of ballistic missile, spacecraft and space station components), the powerful Russian public company in the aerospace sector, which notably designed the Soyuz vessels and… the Mir space station. The remaining forty per cent the shareholding is held by investors, especially Americans.

MirCorp has one objective: “to operate the space station in a private way”. And the company has a lot of projects. In June 2000, The New York Times, tells that the American millionaire Dennis Tito, a former engineer of NASA, the American space agency, spent twenty million dollars at the time to afford a stay of ten days at Mir station. According to information from the American daily, the departure is then scheduled for the first half of 2001.

Reality TV in orbit

A few months later, on September 12, 2000, the American television network NBC announced that it would produce a program called Destination Mir. The idea? About fifteen candidates undergo rigorous Russian cosmonaut training and the winner, “an ordinary American”, according to NBC, will win a trip to orbit on Mir, obviously under the watchful eye of television cameras. And that’s not all. “My impression is that space tourism is what we put forward because it is the most spectacular”. But there are a lot of other things you can do with a space station, like scientific research. In particular, it is possible to “sell laboratory time” so that researchers can conduct experiments in orbit.

At the time, the idea of ​​financing manned space missions with private funds met with strong opposition: “some had almost ethical reservations”. Then-NASA administrator Daniel Goldin is strongly against MirCorp‘s plans. And the U.S. space agency “gives the show of what’s going on in space”. When the Russian space station disintegrated in Earth’s atmosphere in 2001, no television shows were filmed in Mir, and Dennis Tito never set foot there. The idea of “privatizing” the machine was never really implemented. Was the station out of order? Did NASA’s position scare American investors away? Was MirCorp running out of funds?

Unanswered questions, twenty years later

Today, several questions still surround MirCorp‘s plans. The main unknown is the state of the space station itself. How long Mir could still have evolved in orbit around the Earth? The fate of MirCorp after the disappearance of the space station is unclear. The company continued its research into space flights, sometime before closing its doors. On the other hand, the company’s heritage is very much present. MirCorp has, in a way, paved the way for another structure, Space Adventures. It was this specialist company that sent the first “space tourist” to the International Space Station (ISS), a certain… Dennis Tito. It was April 2001, and he spent seven days in orbit.

The legacy of MirCorp

And that’s not all. Other space tourists have since followed. NASA, which was so opposed to private manned missions, works a lot with the private sector today. Thus, the companies Boeing and SpaceX are developing vehicles for the American space agency. In June 2019, Jeffrey DeWit, NASA’s chief financial officer, announced that the agency was “opening up the International Space Station to business opportunities”. Tourists and private companies can now use the facilities. All these projects, MirCorp had already imagined them twenty years ago. And even if it did not carry them out, the company has “initiated a change in mentalities”. The MirCorp experiment “was not for nothing”. It has “started to infuse the idea that you can do private exploitation of the human space segment”.

Carl Sagan and Project A119

For this new article on Space Legal Issues, let us have a look at Carl Sagan and Project A119. Carl Sagan was an American astrophysicist known to have popularize science in the USA. Sagan was one of the first to hypothesize that the satellite of Saturn, Titan, and the satellite of Jupiter, Europa, may have oceans (it was assumed that in Europa, the ocean was under a surface of ice) or lakes. He suggested that the ocean of water in Europa could be habitable. Confirmation of the existence of the subglacial ocean in Europa was indirectly obtained with the help of the probe Galileo. Carl Sagan also hypothesized that seasonal changes on Mars occur due to dust storms and not phenomena associated with the presence of vegetation, as previously assumed.

Carl Sagan proposed the idea of ​​searching for extraterrestrial life, urging the scientific community to search for signals from intelligent extraterrestrial life forms using large radio telescopes and to send probes to other planets. He was one of the founders of the Planetary Society and a member of the board of directors of the SETI Institute. Carl Sagan, on the other hand, participated as a researcher in Project A119, a covert operation of the U.S. Air Force whose purpose was to drop an atomic bomb on the Moon.

Project A119 or “A Study of Lunar Research Flights”, is a secret plan developed by the U.S. Air Force in the 1950s to drop an atomic bomb on the surface of the Moon. It is believed that the purpose of this project was to show the superiority of the United States of America over the Soviet Union and the rest of the world during the Cold War. The existence of the project was announced in the 2000s by the former head of the National Aeronautics and Space Administration (NASA), Leonard Reiffel, who led the project in 1958. The young Carl Sagan was part of the team in charge to predict the effects of a low gravity nuclear explosion.

The plan was not implemented, perhaps because the Moon landing was more acceptable to American citizens. Design documentation has been kept secret for almost forty-five years, and despite Leonard Reiffel’s revelations, the United States government has never officially acknowledged its participation in the project.

In the 1950s and 1960s, the U.S.S.R. and the United States of America improved their nuclear weapons and carried out nuclear tests in different environments. Space tests were also common, until the conclusion of the 1963 Partial Test Ban Treaty (PTBT). The Partial Test Ban Treaty is the abbreviated name of the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, which prohibited all test detonations of nuclear weapons except for those conducted underground. The treaty, also commonly known as the Limited Test Ban Treaty (LTBT), had three main aspects: (1) prohibiting nuclear weapons tests or other nuclear explosions under water, in the atmosphere, or in outer space, (2) allowing underground nuclear tests as long as no radioactive debris falls outside the boundaries of the nation conducting the test, and (3) pledging signatories to work towards complete disarmament, an end to the armaments race, and an end to the contamination of the environment by radioactive substances.

It was in the vein of these tests in 1958 that the United States of America and the U.S.S.R. planned to carry out nuclear explosions on the Moon. These projects were not intended to be carried out, but explosions in the upper-atmosphere and in space were carried out quite often.

Let’s note that in 1949, the Armour Research Foundation (ARF), based in the Illinois Institute of Technology, began studying the impact of nuclear explosions on the environment. These studies continued until 1962. In May 1958, the ARF began a secret investigation into the possible consequences of a nuclear explosion on the Moon. The main objective of the program, organized under the auspices of the United States Air Force, was to carry out a nuclear explosion on the Moon, which would be visible from Earth. The ARF believed that such an experience would contribute to the growth of the patriotism of the American people.

During the project, newspapers spread rumors that the U.S.S.R. had planned to detonate a thermonuclear bomb on the Moon. In late 1957, the American press also reported that the U.S.S.R. planned to celebrate the anniversary of the October Revolution, coinciding with the lunar eclipse of November 7, 1957, with nuclear explosions on the Moon.

Ten members of the team, led by Leonard Reiffel, were brought together at the Illinois Institute of Technology in Chicago to study the potential visibility of the explosion, its scientific significance and its impact on the lunar surface. Among the members of the research team were astronomers Gerard Kuiper and his doctoral student Carl Sagan, who was responsible for the mathematical modeling of the expansion of the dust cloud in space around the Moon, which was an important factor for determining the visibility of the explosion from Earth. To implement the project, scientists originally planned to use a thermonuclear bomb, but the U.S. Air Force vetoed the idea because of the weight of such a device; at the time, there were no launchers capable of putting such mass in low Earth orbit (LEO) and delivering enough cargo to the Moon.

Project A119 was canceled by the U.S. Air Force in January 1959. Reasons have not been given. Presumably, on the one hand, the initiators of the project and the American leaders feared a negative reaction from the public and, on the other hand, the Project A119 could represent a danger for the population in the event of unsuccessful launch. Another argument against Project A119, cited by Leonard Reiffel, was the possible consequences of radioactive contamination of large areas of the Moon, which could in the future be used in the study and colonization of the Moon.

Subsequent studies have shown that a corresponding Soviet project actually existed, but it was different from the scenario reported in the press. Launched in January 1958, it was part of various plans, codenamed “E”. Project E-1 was intended to reach the surface of the Moon, while projects E-2 and E-3 were intended to send a probe to the back of the Moon in order to take a series of photographs of its surface. The final step in the project, E-4, was to launch a nuclear strike on the Moon. Like the U.S. plan, a number of E projects were canceled in the planning phase due to concerns about the safety and reliability of the launcher.

This article was written by Valentina PETROVA (Paris-Saclay).

Legal issues concerning lunar rocks brought back to Earth

The term “lunar rock” commonly refers to a piece or sample of soil from the Moon. The lunar rocks available today on Earth have three different origins. Indeed, this term is more particularly used to indicate the rocks collected in situ by space missions having brought back samples of soil from the Moon.

These missions are on the one hand the six space missions of the Apollo program (Apollo 11, Apollo 12, Apollo 14, Apollo 15, Apollo 16 and Apollo 17) having landed on lunar soil, between 1969 and 1972, and on the other hand, the three Soviet space probes from the Luna program. The Apollo 11 mission brought the first samples of lunar soil back to Earth, twenty-two kilograms of materials, including more than fifty lunar rocks. A collection then completed thanks to the five other Apollo missions that landed on the Moon: in all, more than three hundred and eighty kilograms made up of more than two thousand separate soil and rock samples were collected.

Let’s note that the Apollo Lunar Sample Return Container (ALSRC) was an aluminum box with a triple seal manufactured by the Nuclear Division of Union Carbide. It was used on Apollo lunar landing missions to preserve a lunar-like vacuum around the samples and protect them from the shock environment of the return flight to Earth. An aluminum mesh liner helped absorb impacts. Prior to flight, each box was loaded with sample container bags and other sample containment devices. The “rock box” was then closed under vacuum so that it would not contain pressure greater than the lunar ambient pressure. On the Moon, while samples were being loaded, the seals were protected by a Teflon film and a cloth cover which were removed just prior to closing the box. Two ALSRC’s were used on each mission.

The three Soviet space probes of the Luna program (Luna 16, Luna 20 and Luna 24), to a lesser extent, automatically collected a little more than three hundred grams of lunar soil samples between 1970 and 1976. Finally, lunar rocks have also been found on the surface of the Earth: they are meteorites ejected from the surface of the Moon following an impact of a celestial object on the lunar soil. During 2019, more than three hundred and fifty meteorites of this type, representing a total mass of around two hundred kilograms, were discovered.

Where are these lunar rocks?

About eighty percent of these samples are found at the Lunar Sample Laboratory in Houston, Texas, where they are stored and studied, and research has identified three previously unknown minerals, armalcolite, tranquillityite and pyroxferroite (which were however found on Earth later). U.S. President Richard Nixon also donated pieces of the Moon to one hundred and thirty-five countries and the fifty American states. Three samples of lunar rock reported by Luna 16 were initially offered to the wife of Sergei Korolev, founder of the Soviet space program. Sold for the first time by Sotheby’s for more than four hundred thousand U.S. dollars in 1993, the lot of three fragments was sold for more than eight hundred thousand U.S. dollars on November 30, 2018, during a second auction organized by Sotheby’s in New York. Sotheby’s declared that this was the only sample which was not the property of a government.

Two questions arose here concerning lunar rocks brought back to Earth: that of the ownership of the lunar rocks and more widely of the resources of space, and that of the contamination likely to be caused by the repatriation of these pieces of celestial bodies to Earth.

Can Man exploit space resources?

When the treaties governing outer space were drawn up in the 1960s, there was much discussion about this subject. The question of the exploitation of space resources raised many legal questions. Space is indeed an international zone with rules adopted by States over forty years ago. The law related to natural resources in space presents many uncertainties, because it has not been defined in an exhaustive manner. In addition, where forty years ago space was the reserved domain of the States, for a few years, entrepreneurs have been investing in a possible exploration and exploitation of space resources. This situation is upsetting the actors who were then at play which contributes to making the legal issue on the exploitation and ownership of natural resources.

According to Article I of the 1967 Outer Space Treaty, the exploration and use of outer space, including the Moon and other celestial bodies, must be done for the good and in the interest of all countries, whatever the stage of their economic or scientific development. Outer space, including the Moon and other celestial bodies, can be explored and used freely by all States without any discrimination, on equal terms and in accordance with international law. All regions of the celestial bodies must be freely accessible. Scientific research is free in outer space, including the Moon and other celestial bodies, and States must facilitate and encourage international cooperation in this research. This Article I of the 1967 Outer Space Treaty sums up the spirit of space law and the idea of ​​an international zone where the interests of all countries and of all of humanity must be taken into account by advocating the free use of space under conditions of equality; and with free access.

As a result, the Moon cannot be the object of national appropriation by proclamation of sovereignty, nor by use or occupation, or by any other means (Article II of the 1967 Outer Space Treaty). Historically, by prohibiting possible claims, the goal was to promote peace and security in the context of the Cold War. This Article II is today a source of difficulty as to its interpretation, however, this principle does not prevent carrying out space activities and does not exclude future use of resources.

According to Article VI of the 1967 Outer Space Treaty, the States parties to the Treaty have international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether undertaken by government agencies or by non-governmental entities. It is therefore clear that States are responsible for the activities of their nationals, including private actors. Each activity must be subject to authorization and continuous monitoring by the State party to the 1967 Outer Space Treaty.

The risk of contamination

Article IX of the 1967 Outer Space Treaty relates to planetary protection and the principles of non-contamination: the States Parties to the Treaty must study outer space the Moon and other celestial bodies, and explore them in a manner to avoid the harmful effects of their contamination as well as the harmful modifications of the terrestrial environment which would result from the introduction of extraterrestrial substances on Earth. This article also provides that, if necessary, States will take appropriate measures. The repatriation of lunar rocks to Earth is therefore at the heart of this article and this problem must be taken into account by scientists when organizing missions.

This article was written by Anissa RKHAILI (Paris-Saclay).

Intellectual Property aboard the International Space Station

Let us have a look for this new space law article at intellectual property aboard the International Space Station (ISS). We cannot ignore today the more than preponderant place of new technologies in our society. Even more, we speak of digital life and especially with regard to space and satellite technologies, ultimately essential to our era. These technologies have over the years enabled new scientific discoveries, new commercial products and services, new inventions.

So, who says inventions, necessarily says intellectual property right. Indeed, space technology is ultimately nothing other than intellectual creations, thus raising the question of property and this, even more since the proliferation of private and commercial space activities in a legal framework both national and international.

According to a definition from the French National Institute of Industrial Property (INPI), the patent protects a technical innovation, that is to say a product or a process which provides a technical solution to a given technical problem. The invention for which a patent can be obtained in France from the INPI must also be new, involve an inventive step and be capable of industrial application. Many innovations may be the subject of a patent, provided that they meet the criteria for patentability and are not expressly excluded from protection by law. Some inventions are not patentable but may be subject to other types of protection, such as the deposit of designs and copyright.

The protection of inventions is subject to the applicable territorial legal framework. We therefore wondered whether, ultimately, this territorial competence did not authorize an extension of national law to the objects that each country launched into space. Indeed, if rules exist for most of the States in this area, what about when one leaves the principle of territoriality to join outer space?

The question is all the more complex considering the fact that Article I and Article II of the Outer Space Treaty establish the fundamental principle of the non-appropriation of outer space and celestial bodies. The problem is therefore all the more complex for a work or invention created in space which, in accordance with this principle, cannot belong to one and the same person.

Two principles are therefore ultimately in conflict: the protection and respect of intellectual property rights in the face of the principle of non-appropriation, the freedom to explore and use outer space. Undeniably, it became necessary to lay down a few rules. Although space is reputed to be “non-appropriable”, the principle of territoriality can play on certain space objects, and in particular aboard the famous international Space Station (ISS).

The ISS is a space station placed in low Earth orbit (LEO). It is permanently manned by an international crew dedicated to scientific research in the space environment. This program was launched by NASA and the Russian Federal Space Agency with the participation of European, Japanese and Canadian space agencies. This space station is composed on the one hand of the pressurized modules in which astronauts live (laboratories, docking modules, interconnection modules, airlocks, multipurpose modules), and on the other hand of non-pressurized elements which perform different functions such as energy supply, thermal regulation, maintenance (robotic arms) and storage of scientific experiments and spare parts.

Article VII of the Outer Space Treaty recalls that the object launched into outer space will keep under its jurisdiction and control said object and all personnel of said object. In addition, it provides that the property rights to objects launched into outer space, including objects brought into or constructed on a celestial body, as well as their constituent elements, remain intact. However, at that time there was still no real distinction between tangible property and intellectual property. It was not until the agreement on cooperation relating to the international civil space station made in Washington on January 29, 1998 between Canada, the United States of America, Japan, Russia and eleven Member States of the European Space Agency.

In its article 21, the agreement thus decided on the question of the intellectual property right vis-a-vis the right of space and the principle of non-appropriation: provisions of this article, an activity taking place in or on a flight element of the International Space Station (ISS) is deemed to have taken place only in the territory of the Partner State having registered that element, except that, for elements registered by the European Space Agency, each European Partner State can consider that the activity took place within the limits of its territory.

It is therefore understandable that everything is played on the question of registration. Indeed, the Convention on the registration of objects launched into outer space, concluded on January 14, 1975 and entered into force on September 15, 1976 enacts the obligation for the State to launch a space object and register this object and communicate the information relating to its identification to the Secretary General of the United Nations. In other words, the work that will be created by space objects is necessarily protected by national law.

Finally, with regard to inventions, the rules already seem a little clearer and above all provided for in the texts, something which has not yet been completely done with regard to literary and artistic property. Indeed, Article L611-1 of the French Intellectual Property Code clearly sets out the principle of the invention made or used in outer space, including those on celestial bodies or in space objects.

As a rule, the industrial and academic users who will have access to the Space Station through the European Space Agency will have their rights and obligations determined by the contractual framework they will have agreed on with the Agency.

While it is true that space technology has long been one of the most advanced technical fields and that space activities are, in fact, intellectual creations, it is only in recent years that these activities have raised questions of intellectual property. Among other reasons, space activities, public as they were, are becoming more and more private and commercial. In addition, an increasing number of these activities take place within the framework of international cooperation mechanisms, which depend on a simple, uniform and secure international legal framework.

While patent protection is subject to the applicable territorial legal framework, in accordance with international space law, the State where the space object is registered retains jurisdiction and control over it. The question arises as to whether territorial jurisdiction under intellectual property law authorizes the extension of national (or regional) law to the objects that each respective country has registered and launched into space. In the absence of explicit international rules and under various international agreements concluded in the field of international space projects, recorded space objects are treated on a quasi-territorial basis for the purposes of intellectual property.

The technical and financial contribution of the private sector is expected to intensify in the future development of space activities. There are a number of instruments of general interest that can be envisaged to attract the participation of the private sector, but the protection of intellectual property will play an important role in developing convincing business models of space objects that combine the public and private sectors.

This article was written by Pauline LETOURNEUR (Paris-Saclay).

Satellite operating contract

For this new space law article on Space Legal Issues, let us have a look at the satellite operating 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 operating contract.

Satellite operation takes the form of contracts which make it possible to obtain the capacity available on the satellite: data for telecommunications satellite operating contracts, images for the operating contracts of remote sensing satellites, and location data for operating contracts for navigation satellites.

Operation of telecommunications satellites

Concerning telecommunications and the satellite operating contract, the market for the operation of telecommunications satellites has undergone profound changes, with, in particular, the privatisation of international satellite telecommunications organizations (Intelsat, Inmarsat, Eutelsat) in the late 1990s, with the entry into the capital of these ex-international organizations of investment funds, motivated by the high financial profitability of the latter, with the introduction of these operators on the stock market, and , in general, with a very strong consolidation of the sector following mergers and acquisitions making it possible to rationalise the fleets of satellites.

These contracts allow the satellite operator, owner of the latter, to market the capacity available on the satellite. In these contracts, the operator makes available to its customers, telecommunications service providers, repeaters on board the satellite for a number of years. They provide, for example, that “In agreement with the terms and conditions of this Agreement, X shall lease to Y and Y accepts such lease of (number) transponders, each of 2.7 MHz capacity on the determined satellite with technical performance and other specifications defined in Exhibit A (…). The Leased Capacity shall be made available by X to Y on a 24-hour, seven-day-per-week basis for the Lease Period which shall be twelve (12) years (…)”. Repeaters or transponders designate a set of elements receiving a signal from an Earth station (uplink), transferring it on a different frequency and amplifying it, for retransmission to another land station (downlink).

In the contract, called capacity rental contract, the satellite operator provides capacity on a satellite as well as certain services allowing good use of the satellite by the customer against payment of a price at certain periods. There are different types of capacity allocation contracts: it is the priority of the services chosen by the customer that distinguishes them. The two pivotal concepts of these contracts are preemption and restoration of rights. Concerning preemption, the owner of the satellite can grant to the organization which leases capacity, a repeater or transponder without right of recovery (non-preemptible) or with right of recovery (preemptible). In the first case, the transmission capacity cannot be allocated to another service and the entity renting the capacity benefits from preferential rights, while in the second case, the satellite capacity can be taken over by the managing body and reassigned to a priority service if necessary.

To this notion of preemption is added that of restoration: the capacity user can rent a protected transponder (restorable or protected) or an unprotected transponder (non-restorable or unprotected). In the first case, if a repeater or the satellite breaks down, the operator must re-establish the transmission by using a reserve transponder or a preemptible transponder. Continuity of service is guaranteed. In the second case, the operator is not obliged to restore capacity in the event of a repeater or satellite failure. The user is therefore subject to the vagaries of the operation of the transponder. The concept of preemption is coupled with that of restoration, because in order to be able to restore a protected service, the operator may be obliged to resort to the mechanism of preemption, therefore the exclusion of a co-contracting party. This palette of contracts, and above all protection very variable which they confer to the user of the space capacity, are reflected of course on the tariffs proposed by the operator of the satellite. A service with no right to take-back and protected, that is to say maximum protection, costs much more than a service with a right to take-back, unprotected. This involves contractually managing the scarcity of repeaters. However, given the restructuring of the satellite operating market, the existence of satellite fleets and therefore of a sufficient supply, most of the transponders offered by operators are now non-preemptible transponders.

In terms of qualification, the contract without right of recovery is very close to a lease contract, because the owner of the satellite makes the signatory enjoy the use of something, a repeater, for a while against a certain price. However, the qualification of a service contract is also possible since the operator provides access to satellite capacity thanks to a certain number of services intended to ensure the control, positioning and proper functioning of the satellite and the ground stations. In addition, “the satellite operator may at any time compel his client to end the use of the transponder for reasons related to the proper functioning of the satellite”, thus depriving the customer of the free and peaceful enjoyment of the thing rented, characterising the lease contract.

The contract may, for example, provide that, in the event of interference, “the satellite operator may request each of the Earth stations to switch off their connections and no longer point their antennas towards the satellite. This instruction must be carried out immediately”. Likewise, the operator has police powers in order to make the different users coexist, which allow the operator to intervene to ensure the maintenance and protection of satellite performance and even to suspend access by the tenant who does not comply with the procedures. The contract may thus provide that “if the maintenance and the protection of the overall performance of the satellite requires lessor to interrupt lessee’s use of the transponder, lessor shall do so only to the extent necessary and for the shortest possible time” or that “lessor shall have the right to suspend lessee’s access to the transponders and the satellite in the event that lessee breaches any of the operations procedures during such time as any breach continues”.

The contract with right of recovery, which allows the eviction of a contracting partner, who will be replaced by a privileged contracting partner, is in turn close to a precarious occupation agreement. Indeed, the operating contract is a “contract by which the parties express their will to recognize the occupier only a precarious right of enjoyment, for a modest financial consideration”.

The rental contracts have known certain evolutions concerning their tariff structure. For example, in terms of price, some contracts now include a most favoured broadcaster clause, by which the operator guarantees his customer that he benefits from the best market conditions at the time of conclusion of the contract and that, if he came to apply better ones to a future client, he would pass them on to his initial clients. The trend is for satellite operators to adapt their offer, thanks to the widening of their service offer, and to more flexible contractual terms granted to their customers.

Satellite operating contract: remote sensing satellites

Concerning the remote sensing satellite operating contract, the agreement between CNES and Spot Image, which held a full and exclusive license to use and broadcast the data collected by Spot reception stations managed by CNES and by reception stations foreign companies, specified that Spot Image ensured “the promotion and direct reception of Spot data, the negotiation of agreements with the managers of foreign stations of reception and the management of relations with these stations”. Spot Image had therefore concluded agreements for the reception of Spot data with foreign stations. Spot Image had also signed license agreements in many countries to set up the distribution network, and granted licenses to service companies adding value to Spot images so that they could market them. The marketing of Spot images therefore involved the conclusion of reception agreements, contracts for the sale of data (photographs or magnetic tapes), concession contracts allowing sub-licensees to sell this data, service contracts for data processing and the development of products and derivative works. These contracts reflected the provisions of the framework agreement concluded between CNES and Spot Image.

Airbus Defence and Space has integrated Spot Image resources, having exclusive access to data from several satellites and providing raw images as value-added products from optical satellites and radar. Airbus Defence and Space provides standard products subject to basic processing (choice of preprocessing level; color or black and white images) or cartographic backgrounds usable with a geographic information system or mapping software. Any order and/or supply of products is governed by the General Conditions for the supply of satellite imagery products, for the order products referenced in the catalog or not (in this case, the satellite must be the subject of a specific programming). All use of satellite products is governed by Airbus Defence and Space Licenses. The licenses are standard (they designate the use of the product for the internal needs of the end user) or multi-licenses (they then concern the sharing of the product between several end users for a common project), for images or for the products of elevation which designates the mosaics produced from images or even 3D products.

Operation of navigation satellites

The exploitation of the system results from the U.S. Global Positioning System Policy of 1996, then from the U.S. Space-Based Positioning, Navigation and Timing Policy, of December 15, 2004. The American system is coordinated by the Department of Defense, which set up a free system, which allowed the United States of America to avoid setting up a complex system of payment for user fees (in contrast, the United States of America developed associated services, which generate tax revenue). In the United States of America, the operation of the satellite navigation system is public, and sovereign functions are exercised to the maximum. There was a deadlock on a possible public-private partnership because the Americans feared that a private operator, therefore subject to profitability constraints, would sell the encryption keys to untrusted States.

In Europe, Galileo is a civilian program placed under civilian control, but at the same time, can receive military use. It involves ESA and the European Union, which first concluded study contracts (feasibility studies, overall system architecture, market studies, interoperability, legal and economic aspects) and technical contracts, before the award of several contracts in 2010 for support services (integration and validation of the Galileo system), awarded to Thales Alenia Space, for the construction of satellites, assigned to OHB System AG, and for launch services, contract awarded with Arianespace. In 2011, the contract relating to the terrestrial control segment (network for monitoring and controlling satellites and Earth stations) was awarded to Thales Alenia Space, and the contract relating to the terrestrial mission segment (maintenance of navigation and their accuracy) was at Airbus Defence and Space.

The contracts were signed between the selected companies and the European Space Agency, acting on behalf of the European Commission. The Galileo safety monitoring center is located in France, for its main establishment, and in the United Kingdom for the secondary, emergency site. Considered a “point of vital importance” by a decree of March 22, 2013 from the Ministry of Higher Education and Research, it is operated by the European Agency for Satellite Navigation Systems (GSA), located in Prague. The Galileo project is therefore the responsibility of the European Union, the architecture of the system at the European Space Agency, and the operation at the European Agency of satellite navigation systems. This is what can be said concerning the satellite operating contract.

All about the Mexican Space Agency

The direct antecedent of the Agencia Espacial Mexicana or Mexican Space Agency is the Comisión Nacional del Espacio Exterior (CONEE) (or National Space Commission), an office created by presidential decree on August 31, 1962 and attached to the Secretariat of Communications and Transport, which carried out experiments in rocket, telecommunications and atmospheric studies from 1962 to 1976.

After its dissolution by presidential decree, on November 3, 1977, certain activities were financed by the Instituto Mexicano de Comunicaciones (Mexican Institute of Communications) (transformed into the actual Comisión Federal de Telecomunicaciones), by Satmex then a public company and certain higher education establishments, such as the Universidad Nacional Autónoma de México, the Instituto Politécnico Nacional, the Instituto Nacional de Astrofísica, Óptica y Electrónica, and the Centro de Investigación Científica y de Educación Superior de Ensenada.

In 1962, Mexico set up a committee devoted to space affairs (Comisión Nacional del Espacio Exterior), but it ceased all activity in 1977. In 2005, engineers Fernando de la Peña Llaca and José Luis García prepared a first initiative for the creation of a Mexican Space Agency, which was presented to the Chamber of Deputies. This work resulted in a document whose main objective was “to open subcontracting companies” capable of selling their services in other countries. Following a political will initiated in 2006, this country of more than one hundred million inhabitants has decided to create its space agency, the AEM, Agencia Espacial Mexicana. This project created the Mexican Space Agency as a self-funded entity.

The Mexican Space Agency (AEM) is a decentralised public body of the Mexican government, responsible for coordinating Mexico’s space policy in order to develop the specialists, technology and infrastructure necessary for the consolidation of the space sector in the country. This agency was created and approved by the Congress of the Union on April 20, 2010, promulgated by the then President of the Republic, Felipe Calderón Hinojosa, on July 13, 2010 and published in the Official Journal of the Federation on July 30. It entered into force on July 31, 2010.

The Mexican Space Agency has a Governmental Board of Directors composed of fifteen members who meet at least four times per year; a Director General appointed for a period of four by the President of the Republic; a Supervisory Body and an Organizational and Administrative Structure defined by the Management Committee.

By law, it has been established that the Mexican Space Agency has its legal headquarters in Mexico City, without this limiting the possibility of having offices on the national territory since the President of the Council of Government is both the Secretary of Communications and Transport, the seat of this secretariat is at the same time that of the Mexican Space Agency (AEM).

Mexico’s space policy is one of the policies independent of the economic situation of the Mexican state. Its objective is to bring scientific, technological and industrial development in aerospace to niche opportunities that allow the country to be competitive in the sector on an international scale and to generate more and better jobs. This policy also aims to open new spaces for the development of national entrepreneurs.

The Mexican Space Agency has defined general guidelines that are implemented through the National Program of Space Activities. Of these guidelines, it must assume the presbytery of the State in space matters, through the formulation and execution of space policy and the National Program of Space Activities of Mexico, aimed at preserving national sovereignty and the interests of the countries in the exploration and exploitation of space.

The Agency has also implemented an environmental sustainability policy to promote the development of space science and technology in coordination with the government departments responsible for this issue and achieve the rational use of natural resources and ensure long-term sustainability.

Recently, the Mexican Space Agency (AEM) organised the workshop on the premises of the Institute of Social Development (INDESOL), in order to assess and measure the satellite needs of the country, in areas such as the management of environmental resources and the safety of disaster victims.

According to the Director General of the AEM, Javier Mendieta Jiménez, Mexico is a Latin American leader for its MexSat satellite system, placed in what is known as “the geostationary orbit” about thirty-six thousand kilometers from the Earth , which provides excellent services to the country. And at the same time, “that the people must now start to rely on the services of what are called low-orbit satellites, another type of small complementary satellites that are placed about two hundred to four hundred kilometers from sea level, towards an average of one percent of the distance at which telecommunications satellites are placed, and which provide other invaluable services to the public”, Javier Mendieta Jiménez said in a statement. He pointed out that they are smaller, cheaper and, more importantly, that they can start to grow with Mexican talent, as already done in the AzTechSAT-1 pilot project.

Article 3 of the law establishing the Mexican Space Agency defines the legal instruments which includes the selection of technological alternatives, the use of information and technologies generated in space and related fields, negotiations, agreements and treaties international organizations in the fields linked to space activities as well as the recognition of the importance for the economy, education, culture and social life of the development, appropriation and use of scientific knowledge and technological developments associated with space research among others.

In 2018, Mexican President Enrique Peña Neto decided to make it a year in which the country’s position in science would be improved. Science had experienced a seven percent increase compared to the budget according to Annex 12 which corresponds to Science, Technology and Innovation. The Mexican Congress approved the 2018 federal budget.

On April 16, 2018, Jean-Yves Le Gall, President of the National Center for Space Studies (CNES), participated in the meeting of the Franco-Mexican Strategic Council (CSFM), a tool for reflection and work in the service of Franco-Mexican relations, whose mission is to develop proposals and projects aimed at strengthening bilateral cooperation. At the end of their work, the members of the CSFM, around fifty French and Mexican personalities, were received by the President of the Republic before a concluding meeting, chaired by Jean-Yves Le Drian, French Minister of Europe and Foreign Affairs.

Since the framework agreement signed in 2014, CNES’s cooperation with the Mexican Space Agency (AEM) has increased, particularly on issues related to the fight against climate change. In particular, it enabled the meeting of heads of space agencies from around the world in Mexico City in September 2015 and the adoption of the Mexico City Declaration, which proved to be fundamental for taking into account the role of satellites during the preparation for COP21.

During his speech, Jean-Yves Le Gall returned to the fight against climate change. As part of the “One Planet Summit” organised by the President of the Republic in December 2017, a large number of space agencies, including the AEM, adopted the Paris Declaration laying the foundations for the Space Climate Observatory (SCO) proposed by CNES. The year 2018 was devoted to defining the possible contributions of SCO partners. In addition, on the sidelines of the “One Planet Summit”, the French and Mexican Foreign Ministers signed a declaration of intent on the Franco-Mexican Initiative for Adaptation and Resilience to Climate Change in the Caribbean, to which the SCO is sure to contribute.

The President of CNES also recalled how numerous the subjects of cooperation between CNES and AEM are, in the fields of ocean observation, management of forest resources, water quality management and treatment.

This article was written by Ange-Marie DIOKH (Paris-Saclay).

All about the Japanese space law

Let us have a look at the Japanese space law for this new space law article. The beginnings of the history of Japanese space exploration began in 1955 with the launch of the tiny Pencil rocket. Years later, many events followed, including the launch of asteroid explorers like the Hayabusa-2 spacecraft. Half a century ago, on July 20, 1969, the Apollo 11 mission made the American Neil Armstrong the first human being to walk on the Moon with in the background, the fierce competition between the United States of America and the USSR. Today the situation is quite different.

JAXA and space exploration

In recent years and more particularly in 2019, the Japanese space agency or JAXA has been much talked about by being at the forefront of the space scene with its ambitious mission of the Hayabusa-2 probe. Nevertheless, if Japan is often considered as a small space gauge compared to its Chinese neighbour and the China National Space Administration or CNSA, or to agencies like NASA and the European Space Agency (ESA), it remains among the greatest space nations.

JAXA, which stands for Japan Aerospace Exploration Agency, was created in 2003 from the merger of the three Japanese organizations that had worked in the space field until then: ISAS, NAL and NASDA. Its objective was then to set up the new Japanese space policy which consists in the development of launchers and satellites, in space exploration missions, but also in the manned space program which is summarised through an important participation in the program of the International Space Station (ISS).

Subsequently, Japan continues to operate solid rocket rockets with the “Mu” family of rockets. These are much more massive, however, and will mark the beginning of ISAS scientific missions. NASDA was created in 1969 with ambitious objectives for its civil space activities. After having entrusted the assembly of the NI and N-II liquid propellant launchers (under American license, derived from the Delta) to Mitsubishi, Japan has slowly evolved towards a machine resulting from its own design with the heavy launchers HI and H-II , this being the first launcher entirely developed by NASDA.

H-II being considered far too expensive compared to competing launchers like Ariane, it will not stop being improved until the H-IIA and H-IIB versions that we know today. By 2020, JAXA intends to present its brand new H3 launcher, it will aim to replace H-IIA by reducing the cost of each launch so as to be more competitive. It should use a new LE-9 engine developed by Mitsubishi, as well as the second stage of the Epsilon rocket.

On the other hand, the Japanese space agency seals new public-private partnerships and seeks to become efficient and competitive in the commercial sector. An arduous task if we look at the efforts and advances of companies like SpaceX and Arianespace. JAXA’s most significant mission, however, is undoubtedly Hayabusa-2. After a first mission to the asteroid Itokawa, JAXA launched its second return mission to sample an asteroid with Hayabusa-2.

Launched in 2014 for Ryugu, Hayabusa-2 is the first mission to return samples of a type C asteroid, an object likely to contain organic materials. Its course: the release of its two micro-robots and the Mascot machine, its explosive projectile allowing it to collect surface dust, or its second touchdown allowing it this time to collect some rocks from the sub-Ryugu soil. An emotional mission which should end with the return to Earth of the probe in 2020.

The Japanese space law

Adopted on November 16, 2016, the Space Activities Act entered into force on November 15, 2018. Creating a regime for authorising space operations conducted by private operators, the new Japanese system seeks to encourage engagement of the private sector in space activities by ensuring legal certainty. An authorisation procedure for launches (compliance of the launcher and the launch base with safety standards; ability of the operator to conduct the launch, etc.), as well as an authorisation procedure for the operation of satellites (review of the mission objectives; compliance of the satellite with security standards, etc.) have been implemented.

This law, which sets out procedures for authorising and supervising rocket and satellite launches by private sector companies, also establishes public indemnities to strengthen the reliability of insurance accident coverage.

The Japanese Law on Space Activities, promulgated on November 16, 2016, sets up an authorisation procedure for the launching of rockets and the exploitation of satellites by private sector companies. Japan is a newcomer in this area, since this kind of legislation already exists in more than twenty countries in the Western world and elsewhere. The content of commercial space laws varies from country to country, depending on whether or not they have their own launch sites and depending on various other factors, such as the degree of maturity of their space activities. But in most cases, the legislation contains clauses designed to meet constraints in the three areas listed below.

The first is related to the Outer Space Treaty (OST). This protocol, the full name of which is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, was adopted in December 1966 by the General Assembly of the United Nations and entered into force in October 1967.

Secondly, given the extremely dangerous nature of rocket launches and other space operations, it is incumbent on States to subject these activities to standards that fully guarantee public safety and environmental protection. They must also set up a compensation scheme for the victims of a possible accident.

Thirdly, the legislation on space activities in many cases provides support for companies active in this sector when their solidity is not yet proven. The main objective of Japan’s space activities law is to provide this kind of support in order to encourage the expansion of the space industry.

Japan, which in February 1970 became the fourth country to successfully launch a solid propellant rocket of fully domestic manufacture, established itself in the following years as a leader in the space field. The only Asian participant in the International Space Station (ISS), it is also the first country that has managed to recover an asteroid sample beyond Earth’s gravitational field.

However, Japan stuck to a policy of banning the use of space for national defense until 2008, and this partly explains its backwardness in space activities. At the same time, and although the global geolocation system (GPS) based on the location, navigation and synchronisation satellites of the United States Air Force was primarily designed to improve the missile precision, the free accessibility of signals to the public around the world has generated a profusion of commercial outlets, in the form of products and services such as vehicle navigation systems, precision mapping, supply chain management and ultra-fast stock trading. In this context, Japan’s space activities have been confined almost exclusively to scientific research and technological development.

In recent years, however, a global consensus has emerged that space is a potential source of wealth and a key to the security of nations, and Japan has come to recognise that the country cannot afford to miss the opportunities that space offers, not only for doing business but also for ensuring its share of responsibilities in the field of international security. In 2008, it embarked on a major shift in its space policy by adopting its Basic Space Law, which authorised, for example, the use of image surveillance satellites to observe the military installations of the potentially dangerous countries. The law also required the government to take measures to promote the commercialization of space and to encourage space activities through the enactment of a law dealing specifically with this area.

Japan and military space

Since 1969, the Japanese space program has been limited only to civilian applications. This has not been the case since the House of Representatives of the Japanese Parliament passed the Basic Space Law which has the specific purpose of lifting these previously imposed restrictions.

The adopted text thus authorises the use of space in order to “guarantee international peace and security as well as ensuring the security of the country” within the framework “of the pacifist principles of the Constitution”, in force since the end of the Second World War.

The law received support from the currently ruling Liberal Democratic Party (PLD, right) and the Democratic Party of Japan (PDJ, center) which insisted that Japanese military projects in this area be non-aggressive. Only the Communists opposed it.

This text is the beginning of a response to the concerns aroused in Japan by the development of the military component of the Chinese space program of which the destruction of an old satellite in orbit in January 2007 is an illustration and also by the tests of North-Korean ballistic missiles towards the archipelago.

Although Japan already has three observation satellites with limited capabilities to monitor North Korea, the Japanese military will now be allowed to have spy satellites much better than those used to date and to develop other means space defense.

Expenses related to the Japanese space program are around one and a half billion American dollars. The law passed by Japanese deputies was the subject of intense lobbying on the part of Nippon Keidanren, an association bringing together Japanese companies whose spokesperson declared “that there will be more satellites in the future and rockets used for space security, which is a favorable factor for the space industry”. One of the main players in this sector is the company Mitsubishi Heavy Industries which recently designed the rocket which carried a lunar probe.

This article was written by Ange-Marie DIOKH (Paris-Saclay).

The differences between COPUOS, UNOOSA and COSPAR

COSPAR, COPUOS & UNOOSA: what are the differences? The United Nations has been involved in space activities since the very beginning of the space age. Since the first man-made satellite orbited Earth in 1957, the United Nations has committed to using space for peaceful purposes. This launch, as part of the International Geophysical Year, marked the start of the space age, the first use of satellite technology for the advancement of science, and the beginning of human efforts to secure the peaceful uses of outer space.

This was followed in the 1960s by a rapid expansion of space exploration, starting in April 1961 when Yuri Gagarin became the first human to orbit the Earth, and culminated in the “giant leap for mankind” by Neil Armstrong, in July 1969.

In 1958, shortly after the launch of the first artificial satellite, the General Assembly, in resolution 1348 (XIII), established an 18-member Special Committee on the Peaceful Uses of Outer Space (COPUOS), to review the activities and resources of the United Nations, the specialized agencies and other international bodies relating to the peaceful uses of outer space, organizational arrangements to facilitate international cooperation in this field in the context of the United Nations, and the legal problems which could arise in the programs of exploration of outer space.

In 1959, the General Assembly established COPUOS as a permanent body, which at the time had twenty-four members, and reaffirmed its mandate in resolution 1472. Since then, COPUOS has served as a focal point for international cooperation in the peaceful exploration and use of outer space, maintaining close contact with governmental and non-governmental organizations concerned with space activities, providing for the exchange of information relating to space activities, and assisting in the study of measures to promote international cooperation in these activities.

The work of COPUOS was assisted by the two sub-committees, the scientific and technical sub-committee and the legal sub-committee. The complex questions which have arisen in parallel with the development of space technology are the main concern of the two COPUOS sub-committees, which met for the first time in Geneva in 1962, then regularly each year.

The members of COPUOS are States and since 1959 the number of members of this organization has been growing, making COPUOS one of the largest committees of the United Nations. In addition to States, a number of international organizations, including intergovernmental and non-governmental organizations, have observer status with COPUOS and its subcommittees. COPUOS monitors the implementation of five treaties and agreements.

The United Nations Office for Outer Space Affairs (UNOOSA) provides secretariat services to COPUOS and its two sub-committees and was initially established as a small group of experts within the United Nations Secretariat to serve the Special Committee on the Peaceful Uses of Outer Space, established by the General Assembly in resolution 1348 (XIII) of December 1958.

The Office is headed by a Director and comprises two sections: the Space Applications Section, which organizes and implements the United Nations Space Applications Program, and the Committee, Policy and Legal Affairs Section, which provides secretariat services to the Committee, its two sub-committees and its working groups. The Political and Legal Affairs Committee also prepares and distributes reports and publications on international space activities and on international space law; Simonetta Di Pippo has been Director of the Office since March 2014.

The United Nations Office for Outer Space Affairs is also the office responsible for promoting international cooperation in the peaceful uses of outer space. UNOOSA provides the secretariat for the only General Assembly committee dealing exclusively with international cooperation in the peaceful uses of outer space: the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS).

UNOOSA is also responsible for discharging the responsibilities of the Secretary-General under international space law and for maintaining the United Nations Register of Objects Launched into Outer Space.

Within the framework of the United Nations Space Applications Program, UNOOSA organizes international workshops, training courses and projects on subjects such as remote sensing, satellite navigation, satellite meteorology, distance education and basic space sciences for the benefit of developing countries. It also operates a 24-hour hotline as the United Nations focal point for requests for satellite imagery during disasters and manages the United Nations Platform for Space-based Information for Disaster Management and Emergency Response (UN-SPIDER). UNOOSA is the current secretariat of the International Committee for Global Navigation Satellite Systems (ICG).

The High Commission is part of and establishes partnerships with governmental, intergovernmental, non-governmental and private sector institutions to achieve its objectives. This collaboration enables the implementation of a diversified program enriched by knowledge and skills which are not always readily available within the Office and offers a new avenue for strengthening international cooperation. Engagement with other United Nations entities on the use of space technologies is through UN-Space.

Finally, there is COSPAR, the Space Research Committee which was created by the International Council for Science in 1958 as an interdisciplinary scientific body. COSPAR deals with all kinds of scientific investigations carried out with space vehicles and rockets.

COSPAR members are made up of national academies of science or equivalent international scientific unions. The Council, COSPAR’s supreme body, is made up of the President, representatives of national scientific institutions, the chairmen of COSPAR’s scientific commissions and the Chairman of COSPAR’s finance committee. The COSPAR Bureau manages the meetings of the Council.

Two main types of scientific bodies are active within COSPAR: scientific commissions (SC) and panels. The rules governing these organizations are set out in the Committee on Space Research statutes. In certain cases, the Bureau or the scientific commissions have created sub-commissions or working groups to deal with specific subjects of scientific interest to the partners. COSPAR also publishes scientific documents on critical issues to encourage decision-makers in the fields concerned to develop collaborative programs based on the best available scientific data.

To conclude, the international community has therefore acquired a set of organizations in order to better manage new technologies and growing space operations.

This article was written by Sonia Ben Cheikh (Paris-Saclay).

What do astronauts eat in space?

What do astronauts eat in space? Nutrition is the basis of human health. Among the fifteen disciplines dealt with by NASA, there is nutrition. This discipline is the subject of scientific research because an inadequate nutrition is likely to compromise crew health and mission success. The quality of food consumed in space has improved since the first space missions. Safety in space and keeping astronauts in top condition are a priority which must be met the food on board.

The maintenance of the health of astronauts depends on the contributions of the various nutritive substances. The food problem deserves a very particular attention and brings together logistical problems (storage), sanitary (food preservation), nutritional (covering needs) and, psychosocial (pleasure and conviviality) ones. Respect for the act of eating in its three different functions (biological, psychological and sociological) is essential for the physical but also psychological balance of the crew members.

A good part of social life on Earth is summed up around meals. In the same way in space, the meal must also contribute to the creation of a relational space of relaxation and sharing. To guarantee the cohesion of the team and participate in the psychic balance of the astronauts, they find and share, if not all meals, at least one meal each day. But the way of eating in space is not the same as on Earth.

In the past, space explorers swallowed tube food, chewable tablets, tasteless mash, and cold, dehydrated cube food. But gradually things have improved, from Yuri Gagarin to the first steps on the Moon. Some like the Apollo crews could benefit from the hot water on board. Then, later, the space supply shifted from the tube of unappetizing dough to tasty dishes made by great starred chefs. What do astronauts eat in space? There has been refined meals onboard the MIR station in 1996. The European Space Agency (ESA) works with European chefs to make quality space food. The creation of a full range of tasty, balanced and diet meals was made possible thanks to the partnership between CNES, the French space agency, ESA and ADF (Alain Ducasse Formation). Daily food aboard the International Space Station has American-Russian dominance even if everything is done to avoid blandness and monotony. Exceptional events such as birthdays are celebrated with special dishes.

Between one and two years before the space flight, missioned astronauts are invited to taste most of the dishes, and should assign a note that will allow them to remember what they liked and disliked at the right time and, make their selection a few months before departure. Standard menus are also available. But astronauts have the possibility of substituting a few products to satisfy their own taste and even to compose all of their menus themselves.

Concerning what astronauts eat in space, dietitians have an obligation to evaluate these modified menus in order to examine the nutritional balance with total energy intake and coverage of macronutrient, vitamin and mineral needs. As for health security, dehydration and sterilisation are the two main techniques for preserving food.

The dishes are mainly freeze-dried in those present in these official menus. There can be found, among other things, what is left of heat-stabilized dishes, or dishes precooked in sauce, all having a shelf life of at least two years, and packed in thick aluminium pouches that just need to be put in an oven. On the other hand, there is food ready to be eaten without being cooked or plunged in water: it is the case of cereal bars, cookies, dried fruit, candy and treats.

For safety reasons, an additional quantity of meals is on board, capable of providing each of the crew’s astronauts two thousand calories daily over several days. Food is stored at room temperature. The onboard stock must be reduced to a minimum in volume as well as in weight. For longer stays, a supply vessel moored at the International Space Station (ISS) to refuel it with fuel or food, thereby sending fresh products. ISS astronauts can eat quail, spicy and stir-fried Thai-style chicken, celeriac in delicate nutmeg puree or rice pudding with candied fruit. Meals are stored in large lockers about three weeks before departure and positioned in the order in which they are eaten. Said lockers will only be installed on board two to three days before launch.

The astronauts each have a respective color, which identifies their choices of food and equipment. The front of the locker has a label stating its contents. The crew also has a “fresh food locker” which, unlike in the past, now makes it possible to store food of their choice, which must obviously be checked by the space agency which will issue a health certificate. There are also a variety of drinks, sweet or not, including fruit juices, lemonades, black coffee, café au lait, tea, infusions that are reconstituted by rehydration and drinkable with straw. Alcohol is prohibited except in cases beyond the control.

Space dishes are familiar dishes, and appetizing. Some are prepared quickly in orbit and are a pleasure for astronauts. The rhythm of the meals is respected in the same way as on Earth with a breakfast, a lunch and a dinner with the possibility of snack between two meals. If the astronauts use the straw for liquid food, the fork, the knife and the spoon are used as on Earth. Today, the waste is compacted and stored in a compartment provided for the occasion, then brought back to Earth or burned in the atmosphere.

Trays and utensils are cleaned regularly. The foods are contained in closed packages so as not to disperse in an environment in microgravity because dangerous for the instruments on board and the health of people onboard the ISS. Conservation tests and microbiological analyzes are carried out on the food onboard. Astronauts use meal trays as a plate.

The sense of smell is no longer the same once in space. The flavors are less strong or sometimes transformed. As a result, the dishes must be much salty and spicier to be appreciated up there. Space cuisine is concerned with this so that the orbital meal rightly meets physiological and psychological needs.

Finally, concerning what astronauts eat in space, the case of other celestial bodies is particular. For the food on Mars, it will be a difficulty to feed the astronauts. Therefore, the regular dispatch of supply vessels is not a realistic option. A space farm that will allow the cultivation of the consumed products has been envisaged, while recycling waste and water. Research has been started by the European Space Agency to define what could be cultivated and to study the feasibility of an autonomous ecosystem. These techniques, which would thus be developed for space, could be used on Earth and could have fundamental results in an environment where resources are dwindling and where population is increasing.

This article was written by Mensah Binassoua Yehouessi (Paris-Saclay).

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.