Louis de Gouyon Matignon

The Universe, a zone of lawlessness

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

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

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

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

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

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

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

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

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

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

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

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

The doctrine of clean hands in Public International Law

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

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

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

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

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

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

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

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

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

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

The legal status of 3D printed food in outer space

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

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

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

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

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

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

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

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

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

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

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

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

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

The conditions for speaking of a State in Public International Law

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

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

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

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

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

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

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

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

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

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

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

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

The case of force majeure in space law

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

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

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

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

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

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

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

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

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

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

What is the nationality of someone born in space?

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

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

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

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

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

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

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

Finally, the term “space object” effectively triggers the application of a large part of the Outer Space Treaty (1967) and the Rescue Agreement (1968). Article VII of the first states that “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies”. Let us also add that the property of objects launched into outer space, including objects landed or constructed on a celestial body, and their components, is not affected by their presence in space or on a celestial body or by their return to Earth.

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

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

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

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

As mentioned above, continuing with the nationality of someone born in space, the precise place of birth would probably be a spaceship, a space station or a space base. Here, Article VIII of the Outer Space Treaty declares that “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return”. As a result, a nation would still be able to “claim” useful territories in outer space like its own, because humans cannot live in a vacuum. Thus, this baby may not be stateless if the nation “controlling” the place of birth has laws that automatically grant citizenship to babies born on its territories.

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

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

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

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

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

The need for a Deep Space GPS

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

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

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

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

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

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

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

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

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

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

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

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

Proposal for a Martian Constitution

Preamble of the Martian Constitution

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

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

Title 1 of the Martian Constitution: Fundamental Rights

Chapter 1: Human Rights

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

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

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

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

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

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

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

ARTICLE 10: Slavery and forced labour are strictly prohibited.

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

Chapter 2: Rights of Non-Human Beings

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

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

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

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

Title 2 of the Martian Constitution: Organisation

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

Chapter 1: Organisation of the Federal State

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

Section 1: Executive Power

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

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

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

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

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

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

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

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

Section 2: Legislative Power

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

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

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

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

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

ARTICLE 31: Parliament votes laws by majority vote.

Section 3: Judicial Power

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

ARTICLE 33: The judges are completely independent.

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

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

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

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

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

Chapter 2: Organisation of Federated States

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

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

Title 3 of the Martian Constitution: Independence

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

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

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

Title 4 of the Martian Constitution: Constitutional Revision

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

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

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

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

The history of spy satellites

Let us have a look for this new article on Space Legal Issues at spy satellites. A reconnaissance satellite or spy satellite is a low-orbiting satellite that collects information about civilian and military installations in other countries using an optical or radar system. The first generation type took photographs, then ejected canisters of photographic film which would descend back down into Earth’s atmosphere. Capsules were retrieved in mid-air as they floated down on parachutes. Later, spacecraft had digital imaging systems and downloaded the images via encrypted radio links.

Spy satellites developed by the United States of America

The story of these spy satellites begins with a report made in 1954 by RAND Corporation, an American military research organization. This study concludes with the feasibility of spy satellites. On the basis of this report, the WS-117L reconnaissance satellite program is launched. We are then in the Cold War period. The United States of America is developing a Lockheed U-2 spy plane, nicknamed “Dragon Lady”. This aircraft will make a first reconnaissance flight over the Soviet Union in 1956. Thereafter, it will continue to be used for reconnaissance missions.

In 1957, the Soviet Union succeeded in placing a first satellite into orbit, it was Sputnik 1. This exploit led the United States of America to believe that the U.S.S.R. had numerous missiles and a strong strike power. Lockheed Martin then began the development, under the supervision of the CIA, of KH-1 reconnaissance satellites. This satellite takes images which are stored on a photographic film. This photographic film is brought back by a capsule propelled using a retrorocket towards the Earth and caught in mid-flight. In January 1959, a first attempt was made. It will fail, as will the next eleven attempts.

In August 1960, we witnessed a success for the first time and images captured by the satellite were recovered. The images thus received are of lower quality than those taken by spy planes, but the images received are much more numerous. The KH-1 reconnaissance satellite is replaced by the KH-2 satellite, which will be replaced by the KH-3. These satellites will be assigned the code name Corona. The Corona program was a series of American strategic reconnaissance satellites produced and operated by the Central Intelligence Agency Directorate of Science & Technology with substantial assistance from the U.S. Air Force.

In the year 1960, the Soviet Union shot down an American reconnaissance aircraft with an anti-missile missile and managed to capture its pilot. This event will mark the end of overflights of Soviet territory by American reconnaissance planes. In 1961 the National Reconnaissance Office (NRO) was created. This organization was created to develop the reconnaissance program by concentrating the work of the armies and the various intelligence agencies. From 1962 to 1972, several versions of the KH-4 satellite were developed, each more efficient than the previous one. Then, from the second half of the 1960s, the KH-7 and KH-8 satellites were developed. These satellites were capable of taking detailed pictures of objects on the ground. They will then be used in addition to KH-4. The KH-4 satellites are then responsible for identifying interesting sites which will then be photographed in detail by the KH-7.

In the 1970s, the KH-9 HEXAGON was developed and eventually replaced the KH-4 satellites. The KH-9 Hexagon had several return capsules which allowed it to follow several missions at the same time, but also to extend its duration of use. The return of images by capsules was abandoned from 1976, the year of the launch of the KH-11 KENNEN satellite. The images taken by this satellite are digitized and then transmitted directly to the control center. To ensure the transmission of these images, several satellites (the Satellite Data System or SDS, a system of United States military communications satellites) are launched and put into orbit. Digital image transmission and the fact that the KH-11 KENNEN satellite is placed in a higher orbit increased its lifespan compared to older satellites.

At the end of the 1980s, the United States of America launched its first radar reconnaissance satellite called Lacrosse or Onyx. It provides medium quality images of a very large area or very good quality images of a small area. This satellite can take images day and night, since the absence of a cloud layer is not necessary for good image quality. Due to their high orbit, these satellites have a fairly long lifespan since it is around nine years. As with the KH-11 KENNEN satellites, the images captured by the Lacrosse satellites are transmitted via relay satellites.

In 1999, the United States of America launched the Future Imagery Architecture (FIA) program with the aim of developing new reconnaissance satellites that could replace the KH-11 and the Lacrosse. The Boeing Company was in charge of this program. The development of optical satellites has been abandoned due to cost. However, the first radar satellite from this development program, the Topaz satellite, was launched into orbit in 2010.

In the U.S.S.R.

The Soviet Union built and used a lot of spy satellites. The development of its reconnaissance satellites was organized into two main programs: Zenit and Iantar. Launched between 1961 and 1994, the Zenit satellites placed in Low Earth Orbit (LEO) took photographs which were stored on films. These satellites were equipped with return capsules to send the films with the captured images back to Earth. The capsule was then caught by a plane in mid-flight. The lifespan of Zenit satellites was very limited, a few dozen days, which explains why the U.S.S.R. drew more than six hundred satellites. The Iantar spy satellites, used from 1981 onwards, initially worked with a return capsule system allowing the recovery of films. Then, the following versions of the Iantar satellite allowed the digital transmission of the collected images.

Since the collapse of the U.S.S.R., Russia has struggled to develop new reconnaissance satellites at the same pace. However, some new satellites have emerged such as the Araks, the Orlets, the Bars-M and the Persona. Today, only the Bars-M and Persona satellites remain operational. The Razdan optical reconnaissance satellite was to be launched from 2019 and gradually replace the Persona satellites. These Razdan satellites, placed in Low Earth Orbit (LEO), have an increased performance in particular concerning the transfer of data to the stations which is done faster.

In other countries

France began to develop its first optical recognition satellites in the 1980s. The first Helios satellite was launched in 1995. This series of optical satellites will be launched until 2009. This satellite will then be replaced by the Pléiades recognition satellite, launched from 2011 to 2012. This series of satellites has also been replaced by the optical reconnaissance satellite CSO (Composante Spatiale Optique) launched since 2018.

China also has spy satellites. These are optical and radar reconnaissance satellites. The first reconnaissance satellite, the FSW (Fanhui Shi Weixing), was launched in 1974. Subsequently, several Yaogan satellites were launched. The LKW-1 optical satellites have been operational since 2017. China also uses wiretapping satellites.

Germany has commanded and started deploying its own reconnaissance satellites after the United States of America was reluctant to share information collected by its satellites during the Kosovo war. Still other countries use spy satellites, such as Italy, Japan, Israel and the United Kingdom of Great Britain.

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

What laws apply in international contracts?

Private relations increasingly include an element of foreignness due to the internationalization of economic exchanges and the multiplication of population displacements. In doing so, international contracts are common in all economic activities.

There is a very wide variety of international contracts and, therefore, a multitude of applicable regulations. However, contract law is based on principles often common to the majority of states. Thus, the principle of the binding force of the contract is a universal principle; no foreign law will derogate from it. It is therefore easy to understand why, in international contract law, the public policy exception is rarely implemented.

I. Determination of the applicable law in international contracts

From the moment you have an international situation, the question of the law applicable to that situation inevitably arises. Private international law distinguishes three methods of determining the applicable law among which it is necessary to distinguish the method of the rules of conflict of laws (which one calls traditional method), the method of the material rules (which one calls modern method) and, to a lesser extent, the recognition method.

The method of conflict of laws rules, also called “conflict method”, is an indirect method which leads to the rule of an international situation by rules developed for internal situations. The material rules method, for its part, leads to the development of a rule specifically provided for international situations, instead of regulating the situation by a rule provided for internal reports. Thus, parties to an international contract can choose to apply to their contract the rules derived from an international convention expressly provided for international relations rather than those from a particular country. By way of illustration, the Vienna Convention of April 11, 1980 provides specific rules for the sale of goods which apply only to international contracts.

There remains the method of recognition, based on cooperation, which tends to compete with the conflict method by giving, in contrast to the latter, more importance to foreign laws. In practice, it is still little used, which is why we will not dwell on it more.

In medieval times and the system continued for several centuries, the law applicable to the contract was determined using the maxim “locus redit actum” which means that the act is governed by the law of the place where it is drawn up. This maxim was of fundamental importance when international trade came down to the existence of large fairs in certain European cities.

The development of international trade has brought to light the unsuitability of the rule and, little by little, it is the principle of the autonomy of the will which has prevailed in contractual matters. In other words, the parties could choose the law applicable to their contract. The ruling in principle in this matter is the American Trading Co. v. HE Heacock Co. judgement of December 5, 1910, which expressly states that “the law applicable to the contract is that which the parties have adopted”. This formula raised a debate between the partisans of the subjectivist theory and the partisans of the objectivist theory. In the theory of subjectivism, the will is all powerful and the determination of the applicable law can only be done according to the will of the parties. In the theory of objectivism, the will is not all-powerful; this is only a localization element of the contract. This theory requires the use of the beam of evidence method: we will try to locate the contract according to its characteristic elements such as its place of conclusion, its place of performance or even the place of establishment of the parties. In other words, the choice of law made by the parties simply serves to locate the contract. Taken to the extreme, this theory of objectivism could lead to the application of a law that was not the one chosen by the parties initially.

In France, the Court of Cassation has retain a dualist system, borrowing from the two theories, in the Société des Fourrures Renel ruling of July 6, 1959. Indeed, the Court will retain the subjectivist system when the parties have chosen the law applicable to their contract. On the other hand, it will retain the objectivist system in the absence of choice by the parties of the law applicable to their contract. It will then be necessary to locate the contract without seeking any implicit will. This system, as it results from the Société des Fourrures Renel ruling, was later taken up by the Rome Convention.

The conflict of laws rules are still based on a triple system. First, and this is the system that has applied for decades, the determination of the law applicable to the contract resulted from case law solutions. Then, under the influence of the European authorities according to which it appeared necessary to harmonize the rules of conflict of laws in contractual matters, the Member States adopted the Rome Convention on the law applicable to contractual obligations. Then, due to the new competence recognized to the European authorities, this convention gave way to the Rome I Regulation. Currently, these three systems (jurisprudential, Rome Convention and Rome I Regulation) coexist due to the different dates of entry into force of these texts. The Rome Convention entered into force on April 1, 1991 and therefore, only applies to contracts concluded from that date, while the French case law system only applies to contracts concluded before that date. The Rome I Regulation entered into force on December 17, 2009 and therefore, only applies to contracts concluded from that date. It is therefore essential to know the date of conclusion of the contract to know which system is applicable, although in reality there is no break but, on the contrary, a kind of continuity in the principles implemented. Although the conflict of laws rules method has been very successful, it has sometimes shown its limits in international contract law. The material rules method has filled the existing gaps.

II. The method of the material rules

A large list of contracts are subject to international material rules. For example, most transport contracts are subject to international material rules of conventional origin. The same goes for international factoring contracts. The leasing contract, on the other hand, is governed by the 1988 Ottawa Convention. In contract law, the most widespread international substantive rule results from various provisions of the Vienna Convention. The Vienna Convention has been ratified by more than eighty countries, making it a very common tool.

The provisions of this convention will come to apply in two cases: either because the buyer and the seller are established in different States which are parties to the Convention, or because the Vienna Convention is in force in the State whose law has been designated by the conflict of laws rule (in which case we will have a complementarity with the conflict of laws rule).

The Vienna Convention is a supplementary convention, which means that the parties can decide to exclude it. For a time, the Vienna Convention was considered to have been rejected if the parties had not provided for it. Today, on the contrary, it is considered to apply unless the parties have expressly excluded it. At European level, there has long been talk of adopting a European Contract Code. Although many French lawyers are involved in this cause, the European Contract Code has not yet emerged.

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

2020: the decade of return to the Moon

The return of humans to the Moon is planned for 2024 as part of the Artemis program: fifty-five years after Apollo, the crew should be made up of a man and a woman with the objective of installing a perennial base on our natural satellite. A project in which Europe and France will be associated.

Artemis was the twin sister of Apollo and goddess of the Moon in Greek mythology. Now, she personifies our path to the Moon as the name of NASA’s program to return astronauts to the lunar surface by 2024, including the first woman and the next man. When they land, the American astronauts will step foot where no human has ever been before: the Moon’s South Pole.

NASA is committed to landing American astronauts, including the first woman and the next man, on the Moon by 2024. NASA’s powerful new rocket, the Space Launch System (SLS), will send astronauts aboard the Orion spacecraft to lunar orbit. Astronauts will dock Orion at the Gateway where they will live and work around the Moon. The crew will take expeditions from the Gateway to the surface of the Moon in a new human landing system before returning to the orbital outpost. Crew will ultimately return to Earth aboard Orion. The American space agency will fly two missions around the Moon to test its deep space exploration systems. NASA is working toward launching Artemis I in 2020, an uncrewed flight to test the SLS and Orion spacecraft together. Artemis II, the first SLS and Orion flight with crew, is targeted for launch in 2022. NASA will land astronauts on the Moon by 2024 on the Artemis III mission and about once a year thereafter.

Half a century after Neil Armstrong’s small step, humanity is preparing to return to the Moon. But this time, the United States of America doesn’t just want to pass over our satellite; the goal is to stay there. A new rocket is in development, a new spacecraft as well, as well as a new station which will orbit the Moon. Another difference from the 1960s: other countries will be associated. Europe and France will be there and should even be entitled to a few tickets for their astronauts.

The six Apollo missions that brought humans to the Moon did not stay long on our natural satellite. Apollo 11, the first, only “stayed” there for around twenty hours when the longest stays on site did not exceed three days (Apollo 15, 16 and 17). “This time, when we go to the Moon, we will stay” warned Jim Bridenstine, administrator of NASA, several times. “The Americans say they want to return to the Moon to stay there” confirms Jean-Yves Le Gall, president of the CNES (French National Center for Space Studies), in charge of the French space program. “The idea is to conduct scientific studies that we did not have time to do during the six Apollo missions, which happened fifty years ago; for example, we did not know that there was water on the Moon”. Today we know there is “water that could be drunk by astronauts and that could also be used to propel rocket; water containing oxygen and hydrogen”.

But by returning to the Moon, the United States of America sees even further: towards Mars, “because there is always this long-term project to go one day to Mars”. We realized that ultimately, the best way to prepare to go to the Red Planet was to train on the Moon. This is why the United States of America launched the famous Artemis program. Ultimately, Artemis aims to take over from the International Space Station (ISS), whose “retirement” should arrive around 2030, according to Jean-Yves Le Gall. Artemis would put into practice the same types of collaboration between countries as for the ISS, whose deployment in space had started in 1998. Artemis also plans to launch a new station: Gateway, but which this time would be in orbit around the Moon and not around the Earth. Gateway would also be a perennial station, with regular or even permanent human presence, like the lunar base on the ground, which must also see the light of day.

The European Space Agency (ESA) is one of the main partners of the International Space Station (ISS) and, since lunar exploration is intended to succeed the station, it will be somewhat the same principle; Europe will provide equipment, which will constitute part of the means that will be used to go to the Moon. Thus, the service module of the Orion capsule is developed by the European industry. “It’s sort of the engine room of the spacecraft that will transport astronauts between Earth and the Moon, and then, there are a number of bilateral cooperations with the United States of America, China and India. France is somewhat the champion of these bilateral cooperations because of the excellence of the scientific space community. France will send scientific instruments up there. Europe will play an important role in this lunar exploration”.

And in addition to technical and scientific cooperation, the return to the Moon could also allow Europeans to set foot on the ground of our natural satellite. “We have Europeans staying on board the ISS and so the idea is that they can go to the Moon as well. Negotiation is still to be done but that is the objective”. We could therefore have a Frenchman on the Moon before the end of the decade; it’s a possibility. We think of course of Thomas Pesquet because for the moment, there are no others. But it is a program that is being put in place. Thomas Pesquet, the main interested has already announced that he is a candidate. “I was personally fortunate enough to go into space once for two hundred days aboard the International Space Station” said the astronaut in a video message in English, broadcasted by the boss of Arianespace during the International Astronautical Congress, held in October in Washington D.C.. “But I always dreamed of going further and deeper into space. I really hope to take my part in this next stage of space exploration”.

Who was Sally Ride?

Sally Kristen Ride was an American astronaut and physicist. Born in Encino, Los Angeles (California) on May 26, 1951, she joined NASA in 1978 and became the first American woman in outer space in 1983. Her father was a professor of political science and her mother was a counselor. While neither had a background in the physical sciences, she credited them with fostering her deep interest in science by encouraging her to explore.

Sally Ride, the youngest American astronaut to have traveled to outer space, having done so at the age of thirty-two, was the third woman in outer space overall, after U.S.S.R. cosmonauts Valentina Tereshkova (1963) and Svetlana Savitskaya (1982). After flying twice on the American Space Shuttle Challenger, she left NASA in 1987; she then served on the committees that investigated the Challenger and Columbia disasters. Sally Ride died on July 23, 2012 at the age of sixty-one, following a battle with pancreatic cancer.

Dr. Sally Ride studied at Stanford University before beating out one thousand other applicants for a spot in NASA’s astronaut program. After a brief foray into professional tennis, she was selected to be an astronaut as part of NASA Astronaut Group 8 (the first selection in nine years of astronaut candidates since Group 7 in August 1969, and also included NASA’s first female astronauts), in 1978, the first class to select women.

After graduating training in 1979, becoming eligible to work as a mission specialist, she served as the ground-based capsule communicator (CapCom) for the second (STS-2) and third (STS-3) American Space Shuttle flights, and helped develop the Space Shuttle’s “Canadarm” robot arm. She went through the program’s rigorous training program and got her chance to go into space and the record books in 1983.

This is the hero factory. In this network of squat gray bunkers set apart from downtown Houston by a freeway, a side road and two speed traps, the likes of Alan Shepard, Gus Grissom, John Glenn and Neil Armstrong were introduced to the world and transformed from men into legends. Today’s reusable space shuttle may be less exotic than the old space capsules; still, as NASA demonstrated on one steamy Texas afternoon a few weeks ago, it can still make an astronaut into a household name. Case in point: Sally Kristen Ride, mission specialist on this week’s scheduled flight of the shuttle Challenger and the first American woman in space”.

STS-7

On June 18, 1983, Sally Ride, aged thirty-two, became the first American woman in outer space as a crew member on Space Shuttle Challenger for STS-7, which launched from Kennedy Space Center, Florida. Many of the people attending the launch wore T-shirts bearing the words “Ride, Sally Ride”, lyrics from Wilson Pickett’s song “Mustang Sally”. She was accompanied by Captain Robert L. Crippen (spacecraft commander), Captain Frederick H. Hauck (pilot), and fellow Mission Specialists, Colonel John M. Fabian and Dr. Norman E. Thagard. This was the second flight for the orbiter Challenger and the first mission with a five-person crew.

During the mission, NASA’s seventh shuttle mission, the STS-7 crew deployed satellites for Canada (ANIK C-2) and Indonesia (PALAPA B-1); operated the Canadian-built Remote Manipulator System (RMS) to perform the first deployment and retrieval exercise with the Shuttle Pallet Satellite (SPAS-01); conducted the first formation flying of the orbiter with a free-flying satellite (SPAS-01); carried and operated the first U.S./German cooperative materials science payload (OSTA-2) and operated the Continuous Flow Electrophoresis System (CFES) and the Monodisperse Latex Reactor (MLR) experiments, in addition to activating seven Getaway Specials. Mission duration was one hundred and forty-seven hours before landing on a lakebed runway at Edwards Air Force Base, California, on June 24, 1983.

Sally Ride’s history-making Challenger mission was not her only spaceflight. She also became the first American woman to travel to outer space a second time when she launched on another Challenger mission, STS-41-G, on October 5, 1984.

STS-41-G

Dr. Ride served as a Mission Specialist on STS 41-G, which launched from Kennedy Space Center on October 5, 1984. This was the largest crew to fly to date and included Captain Robert L. Crippen (spacecraft commander), Captain Jon A. McBride (pilot), fellow Mission Specialists, Dr. Kathryn D. Sullivan and Commander David C. Leestma, as well as two payloads specialists, Commander Marc Garneau and Paul Scully-Power.

Their eight-day mission deployed the Earth Radiation Budget Satellite, conducted scientific observations of the Earth with the OSTS-3 pallet and Large Format Camera and as demonstrated potential satellite refueling with a spacewalk and associated hydrazine transfer. Mission duration was one hundred and ninety-seven hours and concluded with a landing at Kennedy Space Center on October 13, 1984.

After NASA, Dr. Sally Ride

From 1982 to 1987, Sally Ride was married to fellow astronaut Steven Hawley. They had no children. In June 1985, Dr. Sally Ride was assigned to the crew of STS 61-M. Mission training was terminated in January 1986 following the space shuttle Challenger accident. Dr. Sally Ride served as a member of the Presidential Commission investigating the accident (the Rogers Commission). Upon completion of the investigation, she was assigned to NASA Headquarters as Special Assistant to the Administrator for long-range and strategic planning.

In 2009, Sally Ride participated in the Augustine committee that helped define NASA’s spaceflight goals. Dr. Ride received numerous honors and awards. She was inducted into the National Women’s Hall of Fame and the Astronaut Hall of Fame and has received the Jefferson Award for Public Service, the von Braun Award, the Lindbergh Eagle and the NCAA’s Theodore Roosevelt Award. She has also twice been awarded the NASA Space Flight Medal.

On July 23, 2012, Sally Ride died at the age of sixty-one, following a 17-month battle with pancreatic cancer. She will always be remembered as a pioneering astronaut who went where no other American woman had gone before. “As the first American woman in space, Sally did not just break the stratospheric glass ceiling, she blasted through it”, President Barack Obama said. “And when she came back to Earth, she devoted her life to helping girls excel in fields like math, science and engineering”.

The Nigerian space program

What is the Nigerian space program? Developed countries that have invested in outer space are now at the forefront of influencing the global economy. Even developing countries such as Brazil, China, and India have achieved enormous leverage through the use of space technology, with appreciable impacts on national development, especially in the areas of communication, food security, and resource management. Nigeria is an active member of the Committee on the Peaceful Uses of Outer Space, with participation in Legal and Scientific and Technical Subcommittees. It supports in totality the Space Debris Mitigation Guidelines of the Committee and the IADC Space Debris Mitigation Guidelines.

In recognition of the role and relevance of space science and technology to national development, Nigeria declared its space ambition to the Economic Commission for Africa and Organization of African Unity member countries during an intergovernmental meeting in Addis Ababa in 1976. However, this declaration did not evolve into a space program. Nevertheless, in 1987, the National Council of Ministers’ approved the establishment of a National Centre for Remote Sensing. Within the same year, the Federal Ministry of Science and Technology constituted a National Committee on Space Applications.

This was followed in 1993 by the establishment of the Directorate of Science by the National Agency for Science and Engineering Infrastructure (NASENI). The mandate of the directorate included space science and technology. NASENI later constituted a nine-person committee of experts that produced a draft national space science and technology policy. Based on the draft policy, the National Space Research and Development Agency (NASRDA) was established on May 5, 1999, with the clear mandate to “vigorously pursue the attainment of space capabilities as an essential tool for the socio-economic development and the enhancement of the quality of life of Nigerians”.

The Nigerian space program is managed by the National Space Research and Development Agency (NASRDA). The space policy was approved in May 2000. The mandate of the agency as encapsulated in the policy is to vigorously pursue the attainment of space capabilities as an essential tool for the socioeconomic development of the nation and the enhancement of the quality of life for Nigerians.

For a space program to be sustainable in emerging space-faring countries, there is a need to develop and implement a space economic development model. The space economic model adopted in Nigeria is the public-private partnership model that involves the short-, medium-, and long-term plans. Within the short-term plan, the government is responsible for all investments in space technology development. In the medium-term, the government implements the partial commercialization of NASRDA’s products and services developed during the short-term economic development plan. In the long-term plan, the government partners with the private sector to implement the public-private partnership framework for the space program.

After the establishment of research centers of excellence, the federal government of Nigeria in 2006 approved the 25-year strategic roadmap for space research and development in Nigeria. Some of the major benchmarks of the roadmap were as follows: to produce a Nigerian astronaut by 2015; to launch a satellite manufactured in Nigeria by 2018; and to launch a satellite manufactured in Nigeria from a launch site in Nigeria on a launch vehicle made in Nigeria by 2025.

The Nigerian space program: National Space Research and Development Agency Act

Talking about the Nigerian space program, the National Space Research and Development Agency Act (NASRDA Act) was signed into law on August 27, 2010. The act provided the legal framework for the implementation of the space program in Nigeria. Some of the functions of NASRDA as provided for in the act include “developing satellite technology for various applications and operationalizing indigenous space system for providing space services, and being the government agency charged with the responsibility of building and launching satellites”, “being the repository of all satellite data over Nigeria’s territory and, accordingly, all collaborations and consultations in space data-related matters in Nigeria being carried out or undertaken by or with the agency”, “promoting the coordination of space application programs for the purpose of optimizing resources and developing space technologies of direct relevance to national objectives”, “encouraging capacity building in space science technology development and management, thereby strengthening the human resources development required for the implementation of space programs”, and “reviewing the national policy on space, including long-range goals, and developing a strategy for national space issues”.

The National Space Research and Development Agency Act 2010 (NASRDA ACT), applicable to all space activities within Nigeria by both citizens and non‐citizens, established formally the National Space Research and Development Agency, empowering the National Space Council as the regulating and supervisory entity for space activities in Nigeria. By virtue of the Act, the National Space Council authorizes licenses for all space activities in Nigeria. License condition under this Act includes permitting inspection and testing of the licensee’s facilities and equipment. License may also be issued on the condition that the licensee provides information to the Council concerning the nature, conduct, location and results of the licensee’s activities. An advance approval of the Council must be obtained for any intended deviation from orbital parameters and it is obligatory to inform the Council immediately of any unintended deviation.

In the Act, particular emphasis is placed on the mitigation of space debris, a licensee is required to conduct its operations in such a way as to prevent the contamination of outer space or cause any adverse changes in the environment of the Earth, to avoid interference with the activities of others states involved in the peaceful exploration of outer space and, to govern the disposal of the pay load in outer space on the termination of operations.

The Nigerian Space Policy provides for research in the following types of satellite technology: earth observation satellites, communication satellites, meteorological satellites, and navigational satellites. However, the current focus of the space program involves development in Earth observation and communication satellites. Consequently, Nigeria has launched five satellites: NigeriaSat-1, NigeriaSat-2, NigeriaSat-X, NigComSat-1, and NigComSat-1R.

Nigeria launched its first Earth observation satellite, NigeriaSat-1, on September 26, 2003. The spatial resolution of the satellite is thirty-two meters with three spectral bands (green, red, near infrared). The satellite image scene has coverage of six hundred kilometers by six hundred kilometers. This wide area coverage makes the data from the satellite economically viable since a single scene covers an area of three hundred and sixty thousand kilometers square. NigeriaSat-1 is a member of the disaster-monitoring constellation and the international charter: space and major disasters. Although the expected life span of the satellite was five years, it was in orbit for eight and a half years and was subsequently de-orbited in 2012. This is what can be said concerning the Nigerian space program.

Why does the FAA uses 50 miles for defining outer space?

Why does the FAA uses 50 miles for defining outer space?” is a question some of us might have asked ourselves, especially when looking at the question of the delimitation of outer space, the different approaches – spatialist or functionalist – to space activities. For this new space law article on Space Legal Issues, let’s have a look at the choice of the Federal Aviation Administration (FAA) to use 50 miles (roughly eighty kilometers) as the boundary between the atmosphere and outer space.

Outer space, beyond being the final frontier, is different things to different people. For pilots, outer space is beyond the atmosphere, where they no longer have aerodynamic control and vehicles must be controlled in their position and altitude by thrusters. For a meteorologist, outer space is where there is insufficient atmosphere to cause a measurable barometric pressure. For a planetary scientist, outer space is that edge of the Earth’s influence called the magnetopause, the last vestiges of Earth’s magnetic field in wispy remnants of ionized particles marking the presence of our planet. For cosmologists, outer space is beyond that, beyond the very fringes of our Solar System, past even the distant orbiting, icy rocks of the Kuiper Belt and the Oort Cloud, extending billions of miles and out to the very limits of where the pressure of sunlight is bounced against the interstellar gas position known as the heliopause. However, when we use human beings as a measure of outer space, the distance above our home planet is dramatically less.

The argument about where the atmosphere ends and space begins predates the launch of the first Sputnik. The most widely – but not universally – accepted boundary, is the so-called Kármán line, nowadays usually set to be one hundred kilometers, but boundaries ranging from thirty kilometers to one and a half million kilometers have been suggested. Although the subject has not been much addressed in the physics literature, there is an extensive law/policy literature on the subject.

The Armstrong limit

The Armstrong limit or Armstrong’s line is a measure of altitude above which atmospheric pressure is sufficiently low that water boils at the normal temperature of the human body. Exposure to pressure below this limit results in a rapid loss of consciousness, followed by a series of changes to cardiovascular and neurological functions, and eventually death, unless pressure is restored within sixty to ninety seconds.

On Earth, the limit is around eighteen to nineteen kilometers above sea level. The term is named after United States Air Force General Harry George Armstrong, who was the first to recognize this phenomenon. At or above the Armstrong limit, exposed body fluids such as saliva, tears, urine, and the liquids wetting the alveoli within the lungs (but not vascular blood) will boil away without a full-body pressure suit, and no amount of breathable oxygen delivered by any means will sustain life for more than a few minutes. The NASA technical report Rapid Decompression Emergencies in Pressure-Suited Subjects, which discusses the brief accidental exposure of a human to near vacuum, notes that “The subject later reported that his last conscious memory was of the saliva on his tongue beginning to boil”.

Well below the Armstrong limit, humans typically require supplemental oxygen in order to avoid hypoxia (a condition in which the body or a region of the body is deprived of adequate oxygen supply at the tissue level).

The Kármán line

The Kármán line is an attempt to define a boundary between Earth’s atmosphere and outer space. This is important for legal and regulatory measures: aircraft and spacecraft fall under different jurisdictions and are subject to different treaties. The Fédération Aéronautique Internationale (or World Air Sports Federation), an international standard-setting and record-keeping body for aeronautics and astronautics, defines the Kármán line as the altitude of one hundred kilometers (sixty-two miles) above Earth’s mean sea level. Other organizations do not use this definition.

The line is named after Theodore von Kármán, a Hungarian American engineer and physicist, who was active primarily in aeronautics and astronautics. He was the first person to calculate the altitude at which the atmosphere becomes too thin to support aeronautical flight; the reason is that a vehicle at this altitude would have to travel faster than orbital velocity to derive sufficient aerodynamic lift to support itself. The line is approximately at the turbopause, above which atmospheric gases are not well-mixed.

The 50 miles line

In the late 1950s the USAF decided to award astronaut wings to pilots flying above 50 statute miles. This boundary was chosen as a nice round figure, but I want to argue that it is also the right choice from a physical point of view. It seems natural to choose the outermost (physical atmospheric) boundary, the mesopause, as the physical boundary which marks the edge of space. It turns out that the traditional value for the height of the mesopause, eighty kilometers, is also within five hundred meters of the 50 mile astronaut wings boundary historically used by the USAF. I therefore suggest that we adopt as the formal boundary of space an altitude of exactly eighty kilometers, representing the typical location of the mesopause”.

After combing through numerous sets of orbital statistics for spacecraft over the years, McDowell came up with an estimate that he says is more precise than the one currently used by the FAI: eighty kilometers, plus or minus ten kilometers. In easy-to-understand terms, this is the lowest altitude a satellite can go and still complete orbits around the Earth. To stay in orbit, and also reach such a low altitude, the vehicle has to be in an elliptical orbit. That’s one where the spacecraft swings out far away from Earth most of the time and comes in close to eighty kilometers for just a brief part of the trip. In this configuration, a spacecraft can stay in orbit for days or weeks, according to McDowell. McDowell says that 50 miles (eighty kilometers) is the point at which gravity becomes more important than the atmosphere. “You’re in space if you can basically ignore the atmosphere. And that doesn’t mean it has no effect, but gravity is the dominant thing you have to worry about”.

Even above 50 miles, Earth’s atmosphere still exists – it’s just super thin. Satellites that orbit much higher than 50 miles are still interacting with the particles from our atmosphere. The air is just so thin that it’s not detrimental to a spacecraft’s orbit. “So then the question is, where do you draw a boundary where you’re no longer in space? It’s when you can’t even dip through the atmosphere briefly at orbital speed and keep on going” says McDowell.

So if this is the most technical answer, how did the FAI’s formal definition end up set at one hundred kilometers? Theodore von Kármán himself set his own limit at eighty-three kilometers in 1956; however he wasn’t even trying to find the boundary of outer space. He was mostly trying to define how high a plane could fly and still achieve lift. Ultimately, this limit was misinterpreted as the boundary of outer space: “Around 1960, the FAI decided to set the limit at one hundred kilometers, just for the purpose of record setting flights – that any flight above that would be considered to be a spaceflight”.

However, not everyone adheres to the FAI’s definition of outer space. The US Air Force, for instance, already sets the limit at 50 miles, or roughly eighty kilometers, and will give badges to any of its personnel that fly above this height. NASA does the same. And while the Federal Aviation Administration (FAA) does not have an official definition, it usually gives out astronaut badges to those who have gone above 50 miles. It’s something that may become more defined as more commercial actors go to space. While different organizations have their own definitions, there is no universal agreement. In fact, the U.S.A. maintains that defining space through international law just isn’t necessary: “With respect to the question of the definition and delimitation of outer space, we have examined this issue carefully and have listened to the various statements delivered at this session. Our position continues to be that defining or delimiting outer space is not necessary. No legal or practical problems have arisen in the absence of such a definition. On the contrary, the differing legal regimes applicable in respect of airspace and outer space have operated well in their respective spheres. The lack of a definition or delimitation of outer space has not impeded the development of activities in either sphere”.

Who was Vikram Sarabhai?

Indian Vikram Sarabhai, in full Vikram Ambalal Sarabhai, was born on August 12, 1919, in Ahmadabad, India, and died on December 30, 1971, in Kovalam (India). Indian award-winning physicist, industrialist and innovator who initiated space research and helped develop nuclear power in India, he is considered the founding Father of the Indian space program. Vikram Sarabhai is also credited with establishing the Indian Space Research Organisation (ISRO).

Vikram Sarabhai was born into a family of industrialists. He attended Gujarat College, Ahmadabad, but later shifted to the University of Cambridge, England, where he studied natural sciences, in the 1940s. World War II forced him to return to India, where he undertook research in cosmic rays under physicist Sir Chandrashekhara Venkata Raman at the Indian Institute of Science, Bangalore. In 1945, he returned to Cambridge to pursue a doctorate and wrote a thesis, “Cosmic Ray Investigations in Tropical Latitudes” in 1947.

He founded the Physical Research Laboratory (PRL) in Ahmadabad on his return to India, when he was twenty-eight years old. After the Physical Research Laboratory, Vikram Sarabhai set up the Space Applications Centre in Ahmedabad, and guided the establishment of the Indian Space Research Organisation (ISRO).

The range and breadth of Vikram Sarabhai’s interests were remarkable. In spite of his intense involvement with scientific research, he took active interest in industry, business, and development issues. Vikram Sarabhai founded the Ahmedabad Textile Industry’s Research Association in 1947 and looked after its affairs until 1956. Realizing the need for professional management education in India, Sarabhai was instrumental in setting up the Indian Institute of Management in Ahmadabad in 1962.

After the launch of Russia’s Sputnik 1 satellite, Vikram Sarabhai felt the need for India to have a space agency as well. He convinced the Indian government to start the Indian National Committee for Space Research program with the following quote: “There are some who question the relevance of space activities in a developing nation. To us, there is no ambiguity of purpose. We do not have the fantasy of competing with the economically advanced nations in the exploration of the moon or the planets or manned space flight. But we are convinced that if we are to play a meaningful role nationally, and in the community of nations, we must be second to none in the application of advanced technologies to the real problems of man and society”.

Establishing during the Nehru government the Indian National Committee for Space Research in 1962, which was later renamed the Indian Space Research Organization (ISRO), Sarabhai also set up the Thumba Equatorial Rocket Launching Station in southern India. The Thumba Equatorial Rocket Launching Station (TERLS) is an Indian spaceport established on November 21, 1963, operated by the Indian Space Research Organisation (ISRO). It is located in Thumba (Thiruvananthapuram), which is near the southern tip of mainland India, very close to Earth’s magnetic equator. It is currently used by ISRO for launching sounding rockets. The first flight was a sodium vapor payload, and was launched on November 21, 1963.

After the death of physicist Homi Jehangir Bhabha in 1966, Vikram Sarabhai was appointed chairman of the Atomic Energy Commission of India. Carrying forward Bhabha’s work in the field of nuclear research, Vikram Sarabhai was largely responsible for the establishment and development of India’s nuclear power plants. He laid the foundations for the indigenous development of nuclear technology for defense purposes.

Dedicated to the use of all aspects of science and technology in general and to space applications in particular as “levers of development”, Vikram Sarabhai initiated programs to take education to remote villages through satellite communication, and called for the development of satellite-based remote sensing of natural resources.

The Indian space program began well after the pioneer era: the U.S.S.R. launched its first Sputnik satellite in 1957, the United States of America followed in 1958 with Explorer 1 before being joined by France in 1965, with Astérix; the United Kingdom of Great Britain and Northern Ireland, Canada and Italy had also launched their own satellite but not independently.

With the live transmission of the 1964 Summer Olympics across the Pacific by the American Satellite Syncom 3, the first geostationary communication satellite launched in 1964 from Cape Canaveral, demonstrating the power of communication satellites, Vikram Sarabhai quickly recognized the benefits of space technologies for India. The Indian National Committee for Space Research (INCOSPAR) was set up in 1962 by Jawaharlal Nehru, the first Prime Minister of the Indian Government. The Indian Space Research Organisation (ISRO) appeared in August 1969. The prime objective of ISRO was to develop outer space technology and its application to various national needs. It is today one of the six largest space agencies in the world. The Department of Space (DOS) and the Space Commission were set up in 1972, and ISRO was brought under DOS on June 1, 1972. The Indian space program, thanks to Vikram Sarabhai, mainly focuses on satellites for communication and remote sensing, the space transportation system and application programs.

Aryabhata was India’s first satellite, named after the famous Indian astronomer of the same name. It was launched by India on April 19, 1975 from Kapustin Yar, a Russian rocket launch and development site in Astrakhan Oblast, using a Kosmos-3M launch vehicle. It was built by the Indian Space Research Organisation (ISRO). “It was not until 1980 to see the first satellite launched by an Indian rocket with an Indian firing point”.

In the 1960s and 1970s, India did not have the means to embark on a space program that rivaled the great powers of the time. The objective was more modest and aimed at putting outer space systems and satellites at the service of national development, all that was needed to get India out of underdevelopment. India was a non-aligned country and the country multiplied partnerships, without choosing a camp during the Cold War: with the United States of America, the U.S.S.R. and France, to develop small launchers or application satellites. “The big problem of India in the 1970s was to master the outer space technologies, including in the field of materials. Launchers required very specific alloys. India started from scratch, but gradually, the country developed its capabilities, at its own pace, it gave itself time”.

Vikram Sarabhai died in the beginning of the 1970s. He has truly created the Indian space program and has influenced astronautics throughout the world.

Who was Alexandre Ananoff?

Alexandre Ananoff was born on April 7, 1910, in Tbilisi, Georgia. Alexandre’s father, Mihran Ananoff, was an important producer of wood, wines and alcohol such as “Champagne” or “Cognac”. Just before the First World War, the country’s situation was not stable. This situation became even worse with the war and the October Revolution of 1917. Mihran Ananoff then decided to leave the country with his wife and son.

In 1921, the family came to finally settle in Paris. They first lived off of the money they had saved in Georgia. After a few years Mihran Ananoff had to do small jobs and the family was forced to move several times, each time to a place with a lower rental fee. Naturalized French, Alexandre Ananoff quickly learned and mastered the French language. Alexandre Ananoff first discovered astronomy, at the age of seventeen: “Nothing drove me especially to the sciences” he explained. “Jules Verne just interested me, no more, as any child. Camille Flammarion’s works led me to astronomy”.

Ananoff then tried to learn more and to master technical domains, such as mathematics and cosmography. He read, inquired and even took lessons. The young man joined the Société Astronomique de France (SAF) and frequented its library. One day, he stumbled upon a work by Konstantin Tsiolkovsky. It was a revelation, as Ananoff said: “Luck put me in the presence of a book by Tsiolkovsky and reading it awakened in me the desire to be useful to the cause that is now mine”.

At that moment, Alexandre Ananoff had become an “Astronaut”, that is to say, one of those who “before Gagarin, worked to lay the foundations of space travel or effectively contributed to its growth”. His task was as follows: “To alert the public to interplanetary travel, bring competent people to take an interest in them; complete the building of Astronautics with the addition of new knowledge, and provide the most from France, against its will if necessary, a French Astronautics, solely that it might in the future play a role among other nations”.

On June 8, 1927, Alexandre Ananoff attended the famous lecture of Robert Esnault-Pelterie at the University of La Sorbonne called L’Exploration par fusées de la très haute atmosphère et la possibilité des voyages interplanétaires. He learned about the existence of German work on rockets, including Hermann Oberth, and saw his passion grow. For many years, Ananoff tried to meet Esnault-Pelterie. He finally managed to have an appointment with the French specialist at his office in Boulogne-sur-Seine on September 20, 1936.

Ananoff started collecting “everything near and far related to rocket, jet and interplanetary travel, even cartoons, which appeared from time to time in the general press”. But his “best documentation” would come to be the correspondence, exchange of documents and books with a multitude of specialists in astronautics worldwide. Between 1931 and 1936, the young man increased his participation in astronautics within the Société Astronomique de France. His enthusiasm and personal investment were regularly found in the activity reports of the French SAF.

In 1933, Alexandre Ananoff planned to publish the proceedings of his conferences but he struggled to find funding. During an internship in Larousse’s factory in Montrouge, he printed for himself his first text, entitled Le Grand problème des voyages interplanétaires, thanks to permission he received from Jacques Moreau, head printer. At the end of 1936, Alexandre Ananoff’s reputation was growing. The director of the Palais de la Découverte in Paris, Andre Léveillé, asked him to contribute to the first “Astronautics Exhibition” to be opened in July 1937, during the Universal Exhibition of Paris of the “Arts and techniques of modern life”.

In 1938, Alexandre Ananoff wanted to create a section in astronautics within the Société Astronomique de France. He received the support of André Hirsch and Ms. Flammarion for monthly meetings. After the Liberation and the end of the War, Alexandre Ananoff wanted to continue to promote astronautics and so he re-contacted the French SAF. In June 1945, the French chemist Henri Moureu was working on the German V2 and recovered some debris from missiles that fell near Paris in late 1944. Recognizing the revolutionary aspects of the V2 engine, Moureu planned to create an organization that would work on the development of rockets of the same type, the CEPA. He started to meet all known individuals in France with knowledge concerning rocket engines and contacted Alexandre Ananoff.

In January 1947, Alexandre Ananoff was again contacted by the curator of Le Palais de la Découverte with a request to prepare, together with Henri Mineur (the director of the Institut d’Astrophysique), an “Astronautics Department” on the theme of astronautical navigation. Alexandre Ananoff nevertheless published several articles and gave five lectures in the late 1940s. Some character portraits of the Astronaut were also made in the press.

The decision to hold the first European Astronautical Congress (IAC) in Paris was definitively established on February 16, 1950, after agreement with the British. The following month, the project took an international dimension (as Alexandre Ananoff had always imagined), in order to welcome American participation. This was the most important step in the life of the French Astronaut. Without any help from the secretariat of the Aéronautique Club de France or from any research organization, Alexandre Ananoff was obliged to personally maintain correspondence with foreign countries, to organize the reception of delegates and to establish the program, in his spare time and with his own finances. Feeling quite alone, he even considered for a moment postponing the event to 1951.

More than twenty years after the death of Alexandre Ananoff, it appears that the memory of his significant contributions to space exploration is still to be restored. The founder of the first IAC deserves an actual place in the Pantheon of astronautical history as a tireless pioneer for space education for three decades of his life, writing articles and books, organizing and giving lectures, participating in radio and TV debates, and even making audio records and space drawings: using all the existing media of his time, Alexandre Ananoff was actually one of the first “multimedia” promoters for astronautics.

Commercial Space Transportation Activities

For this new space law article, let’s look at the Commercial Space Transportation Activities. The Office of Commercial Space Transportation, generally referred to as FAA/AST, is the branch of the United States Federal Aviation Administration (FAA) that approves any commercial rocket launch operations (any launches that are not classified as model, amateur, or “by and for the government”) in the case of a U.S. launch operator and/or a launch from the U.S..

With the signing of Executive Order 12465 on February 25, 1984, Ronald Reagan designated the Department of Transportation to be the lead agency for commercial expendable launch vehicles. This selection occurred following an interagency competition between the Departments of Commerce and Transportation to be the lead agency. The Office of Commercial Space Transportation (OCST) was established in late 1984.

Under Public International Law, the nationality of the launch operator and the location of the launch determines which country is liable or responsible for any damage that occurs (Article VI and Article VII of the 1967 United Nations Outer Space Treaty). As a result, the United States of America requires that rocket manufacturers and launchers adhere to specific regulations to carry insurance and protect the safety of people and property that may be affected by a flight.

The Office of Commercial Space Transportation also regulates launch sites, publishes quarterly launch forecasts, and holds annual conferences with the space launch industry. The office is headed by the Associate Administrator for Commercial Space Transportation (FAA/AST).

The Federal Aviation Administration (FAA) is responsible for ensuring protection of the public, property, and the national security and foreign policy interests of the United States of America during commercial launch or reentry activities, and to encourage, facilitate, and promote U.S. commercial space transportation. To date, the FAA Office of Commercial Space Transportation (AST) has licensed or permitted more than three hundred and eighty launches and reentries.

The FAA safety inspectors monitor the FAA-licensed activities including launches from foreign countries and international waters. The Federal Aviation Administration has the authority to suspend or revoke any license or issue fines when a commercial space operator is not in compliance with statutory or regulatory requirements. Currently, commercial spaceflight crew and participants engage in spaceflight operations through “informed consent”. Informed consent regulations require crew and spaceflight participants to be informed, in writing, of mission hazards and risks, vehicle safety record, and the overall safety record of all launch and reentry vehicles. Prior to flight, crew and spaceflight participants must provide their written consent to participate.

The Office of Commercial Space Transportation is responsible for licensing private space vehicles and spaceports within the United States of America. This is in contrast with NASA, which is a research and development agency of the U.S. Federal Government, and as such neither operates nor regulates the commercial space transportation industry. The regulatory responsibility for the industry has been assigned to the Federal Aviation Administration (FAA), which is a regulatory agency. NASA does, however, often use launch satellites and spacecraft on vehicles developed by private companies.

According to its legal mandate, the Office of Commercial Space Transportation has the responsibility to “regulate the commercial space transportation industry, only to the extent necessary to ensure compliance with international obligations of the United States and to protect the public health and safety, safety of property, and national security and foreign policy interest of the United States”, “encourage, facilitate, and promote commercial space launches by the private sector”, “recommend appropriate changes in Federal statutes, treaties, regulations, policies, plans, and procedures”, “and facilitate the strengthening and expansion of the United States space transportation infrastructure”.

Commercial Space Transportation Activities: licensing

A Federal Aviation Administration license is required for any launch or reentry, or the operation of any launch or reentry site, by U.S. citizens anywhere in the world, or by any individual or entity within the United States of America. A Federal Aviation Administration license is not required for space activities the government carries out for the government, such as some NASA or Department of Defense launches.

Once the Federal Aviation Administration determines a license application package is complete, the FAA has one hundred and eighty days to make a licensing determination. The FAA licensing evaluation includes a review of “public safety issues, such as payload contents, national security or foreign policy concerns, insurance requirements for the launch operator, and potential environmental impact”.

Commercial Space Transportation Activities: experimental permits

The Federal Aviation Administration can issue experimental permits, rather than licenses, for the launch or reentry of reusable suborbital rockets. The FAA issues these permits for “research and development to test new design concepts, new equipment, or new operating techniques, showing compliance with requirements as part of the process for obtaining a license, and crew training prior to obtaining a license for a launch or reentry using the design of the rocket for which the permit would be issued”. No person may operate a reusable suborbital rocket under such a permit for the purpose of carrying any property or human being for compensation or hire.

FAA currently licensed launch sites

The Federal Aviation Administration licenses commercial launch and reentry sites in the United States of America. The following are FAA currently licensed launch sites: Cape Canaveral Air Force Station (Florida), Cape Canaveral Spaceport/Shuttle Landing Facility (Florida), Cecil Field (Florida), Colorado Air & Space Port (Colorado), Ellington Airport (Texas), Midland International Airport (Texas), Mojave Air and Space Port (California), Oklahoma Air and Space Ports (Oklahoma), Pacific Spaceport Complex Alaska (Alaska), Spaceport America (New Mexico), Mid-Atlantic Regional Spaceport (Virginia).

An important part of the Office of Commercial Space Transportation’s statutory mission to encourage, facilitate, and promote commercial space transportation is specifically in support of the continuous improvement of the safety of launch vehicles designed to carry humans. The FAA’s Commercial Astronaut Wings Program is designed to recognize flight crewmembers who further the FAA’s mission to promote the safety of vehicles designed to carry humans.

Astronaut Wings are given to flight crew who have demonstrated a safe flight to and return from space on an FAA/AST licensed mission. The FAA issued its first license for commercial human space flight on April 1, 2004 to Scaled Composites for the launch of SpaceShipOne (SS1).

Will outer space soon become inaccessible?

The growth of debris in outer space is exponential and collisions between discarded satellites could well trigger a chain reaction known as “Kessler Syndrome”. It would then be impossible to put satellites in orbit.

Last May, Elon Musk’s SpaceX announced that it had launched sixty satellites in outer space, two hundred and eighty kilometres above sea level. The first sixty satellites of a fleet which, by 2024, should contain twelve thousand… And the company has already asked the International Telecommunication Union (ITU) the possibility of deploying thirty thousand additional satellites to provide coverage for the mega fast internet project.

Just four months after that first launch, Atmospheric Dynamics Mission Aeolus, an Earth observation satellite operated by the European Space Agency (ESA), was to increase its altitude by three hundred and fifty kilometres to avoid a collision with just one of SpaceX’s satellites. With a fleet of forty-two thousand satellites weighing around two hundred and fifty kilograms orbiting the blue planet, astronomers are already worried about the risk of collisions and the space debris they could generate.

On the first batch of sixty satellites launched by Elon Musk, six were down, it’s ten per cent of the fleet: we launch space debris!” said Christophe Bonnal from the CNES (French Space Agency). However, space debris, non-functional artificial objects orbiting the Earth, residues of old satellites or propulsion systems, are already far too numerous: there are about thirty-four thousand objects of a size of more than ten centimetres floating above the Earth, at a speed of around thirty thousand kilometres per hour. And their increasing number raises fears the possibility of a chain reaction that would generate more and more space debris…

Sputnik 1, the first space debris

It must be said that the first “space junks” are now sixty years old. On October 4, 1947, the R-7 launcher rushed to the skies with the mission to put the Sputnik 1 satellite into orbit. This first success launches the confrontation between the U.S.S.R. and the United States of America in the race for outer space. If this first scientific feat marks a lot of opinion, we cannot yet see that the achievement of this technological feat is also the first act of outer space pollution: Sputnik 1 is not heavy, barely eighty-fur kilograms, against the six and a half tons that have become useless from the central stage of the R-7 launcher, drifting in the same orbit as the satellite.

After ninety-two days in orbit, Sputnik 1 and its launcher returned to the atmosphere and disintegrated. All in all, the satellite has been operational for twenty-one days. And the satellite then became a space debris which orbited seventy-one days before disintegrating. Finally, a very short time for a space debris, whose life expectancy is rather in years, even in decades.

The satellites of Elon Musk “injected at a relatively low altitude of about four hundred kilometres, should in turn return in five to ten years” said Christophe Bonnal from the CNES (French Space Agency). Because the higher the orbits, the more satellites and orbital waste take time to fall: a satellite located in orbit six hundred kilometres above the ground, gradually brought back to Earth because of the friction with the residual atmosphere, will take several years to fall. As soon as an artificial object crosses the eight hundred kilometres mark, one can start counting in decades before seeing it descend. And beyond one thousand kilometres, it is about several centuries spent circling the Earth.

1 millimetre of aluminium in outer space equals the energy of a bowling ball thrown at one hundred kilometres per hour

No wonder, then, that space debris tends to accumulate around the blue planet… The longer the time spent in orbit, the greater the chance of collision, and therefore of increased debris. The total mass of these is now around eight thousand tons, which is roughly the weight of the Eiffel Tower. The count of space debris orbiting the Earth is impressive: it is estimated that there are more than thirty-four thousand objects of more than ten centimetres, of which nearly twenty thousand are catalogued and therefore followed by detection systems, about nine hundred thousand debris larger than one centimetre, and probably more than one hundred and thirty million debris larger than one millimetre.

The problem is not so much the size of a debris, since outer space is infinite, as the energy released during an impact: moving at about thirty thousand kilometres per hour, an aluminium debris of one millimetre radius releases the same energy as a bowling ball thrown at one hundred kilometres per hour, while a steel debris of one centimetre radius is equivalent to a car launched at one hundred and thirty kilometres per hour. Therefore, the slightest bit of debris can reduce a satellite to a crumb, as we could see in the scene of Alfonso Cuarón’s movie, Gravity.

So far, few satellites have been damaged by debris. The first one was a French military satellite, launched in 1995, named Cerise, both for its French acronym (Caractérisation de l’Environnement Radioélectrique par un Instrument Spatial Embarqué), but also for its form, the latter being provided with a long antenna, since destroyed by space debris.

There are probably a dozen actual collisions per year, but only one statistically catalogued each year. Our models predict a major, catastrophic collision between very large objects, every five years or so. To date, we have recorded five, and about seventy collisions between an uncatalogued object and an active satellite. More recently, in August 2016, a camera onboard the Sentinel-1 satellite, the first of the Copernicus Programme satellite constellation conducted by the European Space Agency (ESA), was able to see the damage caused by a debris of a size of one millimetre on one of its solar panels, resulting in an impact of forty centimetres.

Unfortunately, with the common sense that characterises it, human beings did not wait accidental collisions to increase the number of debris. If several explosions come to strew space with debris, the most important, still to date, dates of 2007, when China decided to demonstrate its anti-satellite missile system on one of its weather satellites, FY-1C. The mission was a success and the resulting explosion created nearly four thousand large debris and nearly one hundred and fifty thousand micro-debris, orbiting at an altitude of eight hundred and sixty-five kilometres. “The most dangerous orbits are the most useful, typically between seven hundred and one thousand kilometres…”.

Of the ten thousand debris threatening the International Space Station (ISS) and closely followed by the U.S. military, nearly three thousand of them come from this Chinese ASAT. In February 2009, there was a collision between the Russian satellite Kosmos-2251 and the American commercial satellite Iridium 33, which collided this time, generating nearly two thousand large space debris. These two events alone increased by nearly thirty per cent the number of debris larger than ten centimetres orbiting the Earth.

However, the risks of such collisions should be a sufficient incentive to try to prevent them, especially since 1978, when NASA consultant Donald J. Kessler has theorised the risks of a chain reaction with a scenario of the same name: the “Kessler Syndrome”. The principle is simple: the more debris in orbit, the more they will hit objects or other debris, which will lead to an exponential increase in the number of debris. Eventually, space exploration and satellite launching would be rendered impossible.

Since 2006, NASA has calculated that if we stopped sending objects in outer space, the number of debris would continue to grow exponentially in Low Earth Orbit (LEO). And thirteen years later, launches, if they have decreased, are far from over. Thus, in 2018, five hundred and eighty-eight new orbital objects were generated in Low Earth Orbit (LEO) through satellite launches, explosions or collisions, while only two hundred and thirty-thee objects were consumed in the atmosphere.

What are the solutions?

Even if the rules were to be respected and the new satellite fleets would escape collisions, there is still the problem of exponential growth of debris. In the immediate future, the solution consists mainly of manoeuvring satellites to avoid them: in 2018, CNES treated three million conjunctions in Low Earth Orbit (LEO) resulting in seventeen satellite manoeuvres. The International Space Station (ISS) had to do twenty-five evasive manoeuvres and, on average, each satellite had to travel one year to avoid space debris.

According to the most optimistic estimates of NASA, and subject to the rules in force, it should however remove about five to ten large debris per year to stop their growth. And in recent years, the solutions are looming: robotic arms, nets, harpoons, lasers designed to target small debris and even “Space Tugs”, responsible for harvesting debris in weightlessness. But if the technical means exist, the political will is non-existent and, considering the costs, no actor of the sector wants to invest to clean the terrestrial orbits.

Women in outer space

Let’s have a look at the place of women in the conquest of outer space. The first one hundred percent female extravehicular activity (EVA), any activity done by an astronaut, spationaut or cosmonaut outside a spacecraft beyond the Earth’s appreciable atmosphere, took place last Friday from the International Space Station (ISS). Presented as an event by NASA, this release reminds us that aerospace remains a very masculine world: only ten percent of astronauts are women.

This is the first time that an extravehicular activity (EVA) takes place in a one hundred percent female tandem. The event took place last Friday, four hundred kilometres above our heads, when American astronauts Christina Koch and Jessica Meir left the cocoon of the ISS to perform maintenance work on the station. A first hailed as an event by the U.S. space agency, but which should not make us forget the still very minority place occupied by women in aerospace.

1963, the first woman in outer space

The history of women in outer space had started well: two years after Yuri Gagarin’s first space flight, Russian cosmonaut Valentina Tereshkova became the first woman to leave the atmosphere. She is the first and youngest woman to have flown in outer space with a solo mission on the Vostok 6 on June 16, 1963. She orbited the Earth forty-eight times, spent almost three days in outer space, and remains the only woman to have been on a solo space mission. The 26-year-old girl on her first and only flight was selected for her skills, she was a pilot and a paratrooper, but also for her closeness to the Party: she was the secretary of the Yaroslavl Communist Youth Section at the time of application.

But once the flight was done, Valentina Tereshkova never flew again. Promoted as a figure of equality between men and women supposed to exist within the socialist bloc, she was made “hero of the Soviet Union”, and made dozens of tours abroad in the 1960s and 1970s, before embracing a political career. Member of the State Duma since 2011, she sits in the ranks of the United Russia party of Vladimir Putin, and remains a symbol of pride in her country: she was one of the flag bearers at the opening ceremony of the Olympic Games in Sochi (2014).

But here, after the pioneer Valentina Tereshkova, outer space has seen only men for nearly two decades. It was not until 1982 and Svetlana Savitskaya, a Soviet cosmonaut, to see a woman join the stars again, aboard a Soyuz for eight days. During her second mission in 1984, the latter became the first to make an extra-vehicular trip, nineteen years after the first man, cosmonaut Alexei Leonov, who only recently passed away.

First American woman in 1983, first French woman in 1996

In 1983, she was closely followed by the third woman and first American woman in outer space: Sally Ride. A physics graduate and astrophysics researcher, she was among the eight thousand NASA astronaut candidates selected in 1977. This was the first time that the agency had opened its recruitment to women: out of the thirty-five astronauts selected, six were women. On June 18, 1983, she became the first American woman in outer space as a crew member on Space Shuttle Challenger for STS-7. Many of the people attending the launch wore T-shirts bearing the words “Ride, Sally Ride”, lyrics from Wilson Pickett’s song “Mustang Sally”. Her flight came twenty-one years after that of the first American astronaut, John Glenn.

So the United States of America was not a forerunner, and yet… By 1959, Dr. William R. Lovelace, NASA’s Life Science Officer, had tested the ability of women to perform spaceflight: these tests revealed, among thirteen successful candidates, that they completely fulfilled the physical and physiological conditions to follow the same workouts as their male colleagues. It has been known for a long time that women resist better and longer than men to suffering, heat, cold, monotony, or solitude.

Jerrie Cobb, an American woman aviator part of the “Mercury 13”, was an astronaut candidate at the end of the 1950s. But the idea was abandoned by NASA officials in the summer of 1961: spaceflight being finally considered as the domain reserved for the fighter pilots, which do not count any woman. The Mercury project is seen as too Spartan, with a ballistic flight particularly violent, so the project is postponed, while the Soviets do not let go of the case. To date, the first cosmonaut Valentina Tereshkova remains the only woman who has completed a solo flight in outer space.

In France, the first female astronaut was Claudie André-Deshays. Selected in 1985 by the European Space Agency (ESA), she flew twice: aboard the Mir station in 1996, and the ISS in 2001. Married to astronaut Jean-Pierre Haigneré in 2001 (of which she took the name), she held high responsibilities thereafter: French Minister of Research and European Affairs, Advisor to the Director of ESA, and President of Universcience, Parisian renowned science museums.

Few female candidates, few women in outer space

Of the one thousand candidates who ran for the 1985 selection, only ten percent of candidates were women. And today, on about almost six hundred astronauts who flew, there are only about sixty five women; it is still around ten percent. If we look at the selection conducted by ESA in 2008: there is always ten percent of women candidates. This has not changed between 1985 and 2008. This is a question that must be asked: why women have a representation of certain jobs that are accessible to them or not, it is something that we must work on”.

Historically, the jobs that have served as a breeding ground for astronauts have always been masculine. Moreover, the preparation to be an astronaut presupposes leaving home for a long time and it is sometimes difficult for a young woman to make this choice, when she wants to have children or a family life. We also see this kind of imbalance in other universes that impose the same constraints: on construction sites, on oil platforms…

If the U.S.S.R. was the first country to send a woman into outer space, this is also due to the nature of the Soviet regime, to a more directive mode of recruitment, especially with respect to the United States of America. But why such a late opening to the recruitment of women within NASA? Because the selection opened in 1977 was the first since the previous selections of the early 1960s (Mercury, Gemini and Apollo programs), and in which in fact, no woman had ever been selected. But then, the situation has changed.

The first human on Mars could be a woman

So, is the woman the future of living beings in outer space? Yes, according to the plans of Donald Trump, who set 2024 as the return of an American on the Moon. Or rather an American woman: “It is likely that the next person on the Moon will be a woman, and the first person on Mars will probably also be a woman”. It was time. For today, the twelve astronauts who walked the lunar ground during the Apollo program, from 1969 to 1972, were all men. Today, things are different: of the thirty-eight American astronauts able to fly, twelve are women. And the latest promotions are even more equal: four women and four men selected in 2013, five women and seven men in 2017.

Continuing with women in outer space, in France, of the ten spationauts who have already flown, there is only one woman: Claudie Haigneré. The first Frenchman was Jean-Loup Chrétien, former fighter pilot and general, who flew in 1982 aboard a Soyuz spacecraft. In early 2019, an unfortunate story had, however, put the subject of gender equality back on the table, when a women’s spacewalk had to be cancelled. There was only one size combination ready for use aboard the ISS.

To be women in outer space, is it complicated? The French spationaut Philippe Perrin also explains that after two extravehicular exits, it is extremely misadvised to the female colleagues to have a child, it is usually too risky for the baby. Due to the solar radiations which damage the gametes. For those who wish to have a child, there is only “self-preservation of eggs”. In terms of intimacy, the ISS is totally mixed and adapted to both men and women, but still… To pee involves using a vacuum tube, as for menstruation, only the toilets of the Russian part of the ISS are adapted. To go to the Russians is to mean to all these gentlemen that a women has her period. To avoid worries, most women opt for the pill. One way to avoid getting pregnant in outer space, because it would then be necessary to embark on a repatriation Soyuz.

For the long trips that will be needed to go to Mars (up to two years), will women finally have an advantage over their male colleagues? Expected expeditions will require astronauts to spend a very long time in a cramped capsule, and therefore, in great promiscuity. According to some psychologists, a crew entirely composed of women would be best suited to such an adventure. Anguish, boredom, depression, loneliness, homesickness… Men and women suffer from the same psychological phenomena in distant expeditions, but everything suggests that the most suitable subjects are women. They tend to be more tolerant and in the crews, competition seems less fierce, and the atmosphere is less tense. Still, the presence of a woman in a group of men also has destabilising effects because of, among other things, sexual tension. A problem which may not be so important because astronauts suffer a significant drop in their production of sex hormones. This is what can be said concerning women in outer space.

Space legal issues concerning second-hand satellite market

One of the opportunity with on-orbit services would be the development related to the creation of a second-hand satellite market; for this new Space Law article, let us study the space legal issues concerning second-hand satellite market. Life-extended satellites represent enough value so they can be sold to new customers, to developing countries as an example. A second-hand market would represent additional potential customers for satellite maintenance.

ESA’s project of reusing GEO satellites

A few years ago, ESA engineers had proposed a technique to enable a digital satellite radio service for European drivers, without the need to launch a single new satellite into orbit. It promised to be much cheaper to set up than U.S. satellite radio, because it required no new expensive satellite launch. Instead, the proposal was to reuse existing TV satellites nearing the end of their operating life. Once in position, almost thirty-six thousand kilometres away in space, TV satellites will remain in orbit forever, but their useful life amounts to fifteen years or less. Onboard thrusters must keep each satellite pointed precisely in geostationary orbit so they stay lined up with fixed-position Earth-based receivers.

However, once the thrusters’ propellant runs out, the satellites drift out of correct orbit, and are left useless for TV broadcast applications. But further life can be squeezed from a low-propellant TV satellite switched over to mobile digital radio broadcasting, where precision position control is less important. Most thruster propellant is expended correcting satellite attitude in the north-south direction. But if station-keeping is limited to the east-west axis, then, satellite lifetime could be extended by some five years. The satellite’s position would oscillate across the sky by a few degrees. But vehicle-mounted digital radio antennas would keep track of the satellite as it moves, just as they would maintain contact with it as the car bearing the antenna moves across the landscape.

In-orbit transfer of ownership

Let’s focus on Satellite Ownership Transfers and the Liability of the Launching States. A space object may be sold/bought while in outer space. There is no objection by principle to a transfer of registration. The case we are studying is about the original State of registry entering into an agreement with the transferee state, such that the latter is grated jurisdiction over the transferred space object. The original State of registry would have to remove the space object from its national registry and for the transferee state to register the object on its own national registry. That is what happened with both the satellites AsiaSat 1 and 2. The two satellites were removed from the registry of the United Kingdom of Great Britain and registered on the national register of China (technically, it was not a transfer of ownership, but a State succession). The deregistration and reregistration of assets being transferred while in outer space simply included a list of administrative requirement for such transfers.

Let’s recall that the Article VIII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967) states that “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return”.

Article VI of the aforementioned Treaty enounces that “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization”.

A space object may be sold/bought while in outer space. There is no objection by principle to a transfer of registration. The property is transferred, including the rights and obligations which are connected to property in every legal system. The responsibility for “national activity” according to article VI of the 1967 OST is transferred because it is related to a fact: the link of nationality of the operator. This activity must be authorised and continuously supervised by the “appropriate State”. The liability of the launching State(s) is unchanged as it is related to the time of the launch. The State of the new owner can register and have jurisdiction and control over the object if it is a launching State because of article II of the 1976 Registration Convention (if it is not, it cannot).

Article II of the aforementioned Convention states that “1. When a space object is launched into Earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry.

2. Where there are two or more launching States in respect of any such space object, they shall jointly determine which one of them shall register the object in accordance with paragraph 1 of this article, bearing in mind the provisions of article VIII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and without prejudice to appropriate agreements concluded or to be concluded among the launching States on jurisdiction and control over the space object and over any personnel thereof.

3. The contents of each registry and the conditions under which it is maintained shall be determined by the State of registry concerned”.

Transfer of ownership of a satellite does not affect the liability regime. Let’s remember that Responsibility concerns national activities whereas Liability concerns the launching State(s), which are “jointly and severely liable”. In this case, Ownership will not have any impact on the Liability. The identification of the launching States is the key to solve the questions of liability in respect of the on-obit transfer of ownership of a satellite However, scope of the launching States is not clear. What about if a state whose national owns a satellite launched from outside its territory shall be regarded as a launching State? Or if a state of registry not concerned with the actual launching shall be regarded as a launching State?

The “original” launching State stays liable even if it cannot in practice have any control over the satellite. Therefore it must control or even block every change of ownership to a foreign person. The State of the “national activity” is responsible according to Article VI of the 1967 OST but cannot register it, cannot have jurisdiction and control over it even if it must authorise and supervise this activity.

While registration is irrelevant to the liability, it is useful to find a launching State especially when the procuring State specifies its name as that of a launching State. However, considering State practice, making a formula of finding a launching State based on the registration would not be a solution. Then, it has to be noted that it is the assured protection of potential victims, not the identification of a launching State itself that counts. Taking note of that prerequisite, it has to be underlined that furnishing information to the UNSG is as useful as registration as far as the identifying the situation concerning a satellite is concerned.

Concluding remarks concerning second-hand satellite market

Helped by the various kinds of information provided, Governments can ensure that its national will assume third party liability through national legislation in line with the U.N. Treaties on Outer Space as well as the 2004 Application of the concept of the “launching State” and the 2007 Recommendation on enhancing registering space objects. Information provision concerning the multilateral transaction and national legislation will be the solution with respect to the on-orbit transfer of a satellite. This is what can be said concerning space legal issues concerning second-hand satellite market.