Louis de Gouyon Matignon

Carl Sagan and Project A119

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

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

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

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

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

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

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

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

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

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

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

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

Legal issues concerning lunar rocks brought back to Earth

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

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

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

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

Where are these lunar rocks?

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

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

Can Man exploit space resources?

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

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

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

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

The risk of contamination

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

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

Intellectual Property aboard the International Space Station

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Satellite operating contract

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

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

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

Operation of telecommunications satellites

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

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

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

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

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

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

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

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

Satellite operating contract: remote sensing satellites

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

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

Operation of navigation satellites

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

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

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

All about the Mexican Space Agency

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All about the Japanese space law

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

JAXA and space exploration

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

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

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

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

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

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

The Japanese space law

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

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

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

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

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

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

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

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

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

Japan and military space

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

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

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

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

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

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

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

The differences between COPUOS, UNOOSA and COSPAR

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What do astronauts eat in space?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The first come, first served technique in space law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Satellite launch contract

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Understanding the Wassenaar Arrangement

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

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

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

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

The structure of the Wassenaar Arrangement

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

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

Implicit State commitment

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

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

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

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

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

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

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

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

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

Understanding the World Heritage Convention

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

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

Necessary cooperation between national and international legislation

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

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

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

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

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

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

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

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

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

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

The World Heritage List

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

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

The World Heritage Fund

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

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

Satellite construction contract

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

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

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

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

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

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

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

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

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

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

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

What was the Constellation Program?

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

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

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

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

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

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

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

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

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

Advertising in outer space: the beginnings of commercial drifts?

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

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

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

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

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

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

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

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

The need to establish a communication network in deep space

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

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

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

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

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

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

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

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

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

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

Marine pollution caused by space debris

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

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

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

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

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

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

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

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

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

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

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

The definition of actio popularis

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

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

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

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

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

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

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

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

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

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

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

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

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

The history of space elevators

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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