Louis de Gouyon Matignon

The Lawfulness of Space Mining Activities

For this new Space Law article on Space Legal Issues, we have decided to publish The Lawfulness of Space Mining Activities, a space law Master’s Thesis written by Louis de Gouyon Matignon. Available by simply clicking on the link at the bottom of this article, we hope that this work will help you understand space mining, celestial bodies, the lawfulness of space mining activities, asteroids, asteroid mining…

INTRODUCTION

At a time when resources are scarce, where human needs are growing more and more (and so is demography), and politics is disappearing in favour of greater economic integration, it appears that the exploratory space perspective, and in particular the capacity of the living beings to settle elsewhere than on Earth, becomes feasible. The urge to explore has propelled evolution since the first water creatures reconnoitred the land. Like all living systems, cultures cannot remain static; they evolve or decline.

Private companies, which historically surpass states before making them disappear, accompany this movement of history. Recently, corroborated by cultural productions such as Mars (National Geographic) or Avatar (James Cameron), some have looked at the potential to seek energy outside of planet Earth. This illustrates that humanity is about to live a new moment: the transition from a land-based agro-industrial society, to a service society freed from any energy constraint.

Economy is building the law. And it is therefore quite natural that as History is realised (because of Economy), new legal questions arise. Among these, within a relatively young industry (space activity has for now gone through two movements: first of all, that of “exploration”, by the states and for political reasons, in the 1960s, then, that of the “use”, by companies still largely supported by the states), that of the legality of a potential commercialisation of the resources of outer space, corresponding to a third movement in the space activity, that of the “exploitation” by private companies of the potentialities offered by infinite energy.

The ever-expanding world of technology is constantly turning science fiction into reality. Space mining is an exciting example of this. For decades, scientists have understood that celestial bodies – namely asteroids – contain sometimes high levels of precious metals and other resources. A handful of companies now hope to bring these resources out of orbit and back to Earth. Would these operations be lawful? At a time where environmentally protecting the Earth is (almost) everybody’s concern, and where the depletion of resources is a cause for concern, it is not surprising that some are turning their investments to the wealth available in the Solar System and potentially beyond.

The press has already widely echoed projects led by pioneering start-ups such as Planetary Resources, Inc., or Deep Space Industries. These companies, which raised tens of millions of American dollars, can rely on solid scientific data: the theoretical value of some asteroids, composed in part of gold, nickel, and other precious metals, reaches thousands of billions of American dollars. Closer to Earth is the Moon, which has useful, and therefore precious, resources such as water (which can be used as a propellant), or helium-3 (a future energy source).

Although the large-scale exploitation of outer space resources remains at this stage a long-term project, it illustrates the challenges that space law will have to meet to support an increased human presence beyond Earth. These projects face not only considerable technical difficulties, but also serious legal obstacles. It is to these questions which are nowadays a hot topic in the small space law community that we will try to answer. What are space resources? Does public international law, which space law is a part of, permit the exploitation of celestial resources? What are the legal conditions in which this exploitation could take place? Outer space is in the way of becoming commercialised. The legal framework must catch up.

In the first part of our analysis, we will focus on what public international law provides for the exploitation of celestial resources (I), concentrating especially on the 1967 Outer Space Treaty (A), and the 1979 Moon Agreement (B). In a second part, we will look at some of the solutions envisaged to exploit resources of outer space (II), by focusing on how the concept of exploiting celestial bodies has been imagined by national laws (A), and the ideal international legal instrument that would be needed to ensure a long-term peaceful exploitation of the cosmos (B).

PREFACE

This preface for The Lawfulness of Space Mining Activities was written by Jacques Blamont (CNES), former French space agency’s scientific and technical director, father of planetary balloon exploration, and Space Legal Issues’ Honorary Chairman.

Outer space is generally understood as a global heritage owned by all mankind. The 1967 Outer Space Treaty and subsequent related U.N. legislation prohibit the appropriation of space resources. The philosophy of this legislation is to give precedence to the interest of humanity over any other consideration.

But there is no agreement on the application of such principle. Some consider that the treaty intends to prohibit any exploitation of space resources. Others maintain that the prohibition of appropriation is an invalid concept, and this opinion is widespread.

The general trend supports the interpretation of the principle. In 1973, a provision to the 1979 Moon Treaty maintained that as soon as exploitation of space resources would become feasible, a conference of Members States would establish an international operating system, which would take into account the interests of capable partners. This is to say that the principle of our appropriation would be submitted to the progress of technology.

With indeed the advance of potential exploitation tools, some States have decided to naturally allow to envision prospecting for the exploration of the Moon or asteroids, as Luxembourg, or the United States of America (President Obama signed in 2017 an authorisation for U.S. companies).

The International Treaties are now outdated. The States, and especially the leaders in Space, consider the treaties not only too vague, but not adapted anymore to this present evolution. They feel that a free field should be redefined for profit-oriented enterprises.  And they have the power and the drive to move with strength in that direction.

The past history of the conquest of the world by Europe since the seventeenth Century shows the power of individuals and privates companies, when expansion in a vacuum becomes possible. It will not be stopped in Space within the fast and overwhelming advance of cheap technology, by any U.N. paper.

Adventurers will not stop nor abandon their thirst for huge money grains. Greed will become the main factor of the Space activity, unlimited by any international agreement, as soon as the operations will become easier. Space tourism, what for? Moon exploration, what for? Money. And it is predictable that all existing exosystems with solar systems will not only be impacted, but destroyed. The history of the United States of America in their treatment of the American continent will be followed, whatever the legal rules imposed by the International Community.

Let us hope that Law will stand strong”.

The present Master’s Thesis written by Louis de Gouyon Matignon draws attention on the actual legislation concerning the lawfulness of space mining activities. The author provides data necessary to understand the evolution, which unfortunately, is bleak.

The need to protect satellites

Let us study for this new Space Law article the need to protect satellites. Communications, localisation, observation… Nowadays, the dependence on satellite systems has increased for the realisation of some of these functions, whether they are used for civil applications, as well as in the field of defense. It is therefore essential to be able to ensure the continuity of the services provided by these satellite systems, while ensuring their proper functioning. This of course involves the ability to diagnose possible failures or malfunctions on board, and to be able to remedy them, but also to anticipate the various threats that could be the cause.

The space environment can be a primary source of threat for a satellite system, which must, among other things, cope with a radiative environment (for example with solar flares, or magnetic storms) that can lead to temporary malfunctions or damage. Similarly, the considerable increase in the orbital population (mainly operational or end-of-life satellites, and space debris) has greatly increased the risk of collisions in orbit (especially in Low Earth Orbit), and poses a new threat to satellite systems.

Finally, malicious acts such as cyber-attacks, scrambling or dazzling actions, or the destruction of satellites in orbit (ASAT firing from the ground, for example), are all intentional threats that must be taken into account in order to protect satellite systems. The multiplicity of threats makes this task of protection difficult, because the specificity of their effects implies a specificity of the means of protection to be implemented, and therefore associated costs. It is therefore important to be able to identify all of these threats, to judge their possible occurrences, to understand their potential effects, and then to develop appropriate means of protection.

The 3R concept

The 3R concept, for “Redundancy, Reactivity, and Reconfiguration”, sets the objectives in terms of capabilities to be achieved by a satellite system to best protect from potential threats, and their effects on the service to be rendered, the mission to achieve. The notion of redundancy implies that the mission, and therefore the functions to be fulfilled to achieve it, can be ensured by several elements of the satellite system, thus avoiding any critical path. The concept of reactivity implies that the satellite system is able to identify a malfunction, a threat, and react adequately with the adequate response time. Finally, the concept of reconfiguration implies that the satellite system is able to modify its configuration if necessary, so as to ensure the achievement of the mission and continuity of service.

The need to protect satellites from cyberattacks

A new report says hackers could wreak havoc by interfering with space-based communications, and navigation services. Military satellites face the threat of hackers using malicious code to jam battlefield communications, or disrupt automated missile-defense systems. Attackers can also create fake GPS signals from satellites. Known as “spoofing”, this could be used to surreptitiously redirect everything from planes to ships, and ground forces.

Security researchers have already highlighted the vulnerabilities associated with communications satellites. Hacking satellites could be a far more effective way of compromising an enemy than simply blowing them up. During the U.S.-led invasion of Iraq in 2003, just over two thirds of U.S. munitions were guided via “space-based means”, up from just a tenth during the first Gulf War in 1990. This “critical dependency on outer space” makes cyber vulnerabilities all the more concerning.

The need to protect satellites from space debris

As the number of space objects in orbit around the Earth increases, so does the chance of them colliding. The speeds at which they travel pose the threat, for each of them, of considerable dangers, if not fatal. Operational objects, manoeuvring or not, operated from the Earth, are added space debris. This diverse population of inactive objects, bringing together satellites of several tons, as well as stages of launchers or even splinters of paintings detached from them, evolves in various orbits.

The increase of this orbital population now seems almost inevitable. On the one hand, the reduction in the costs of access to space, the result of the miniaturisation of satellites, and the drop in launch costs, invites more and more actors to take part in these activities, and those activities to multiply. On the other hand, the proliferation of debris, reinforced by the increasing risk of collisions between them, considerably increases the number of obstacles in orbit.

Ensuring the viability of orbital activities therefore implies setting up a “space traffic management” regime, that is to say a set of rules for the conduct of these objects. This problem, now the subject of many works, is generally referred to by the English expression Space Traffic Management (STM). It cannot be decorrelated from space surveillance capabilities, referred to as Space Situational Awareness (SSA).

Under the lens of law, these space legal issues present a dual challenge. On the one hand, the legal regime for space activities requires the establishment of such a device for its perfect application. On the other hand, law is the appropriate instrument for the construction of these norms. Indeed, the application of certain mechanisms established by space law requires that rules relating to Space Traffic Management be defined. This is particularly the case with regard to liability.

The 1967 Outer Space Treaty and the 1972 Liability Convention cited above establish a very special regime of responsibility, unique in international law. The latter is structured around two possible situations in the event of damage caused by a space object: either the damage takes place on Earth or is caused to an aircraft in flight, or it takes place elsewhere, that is to say in outer space. In the first case, liability is flawless: that is, the mere occurrence of the damage caused by the space object is sufficient to hold the liability of its launching State or one of them in case of plurality of launching States. In the second case, liability is said to be for a fault: that is to say, it is necessary to demonstrate that the damage caused by the space object is the result of a fault. If this double regime presents no conceptual difficulty, the “fault” to which reference is made in the second case, is not defined. Therefore, it becomes difficult, if not impossible, to determine with certainty whether the responsibility of a launching State can be accepted in the event of damage that a space object would have caused to another space object.

In this respect, establishing a “Space Traffic Management” regime, widely understood as a set of rules governing the conduct of space objects, is necessary to establish the existence of a fault and with it, to engage the responsibility of a launching State for damage caused in outer space. Failure to comply with these “conduct rules” would constitute misconduct within the meaning of the 1972 Liability Convention, and would thus, make it possible to apply the planned regime strictly. Conversely, Space Traffic Management is one of the major new challenges in space law, as it is the tool by which such a regime can be established. In any case, this set of future standards, governing the conduct of space objects in orbit, will be a component of the broader set of legal and regulatory frameworks for space activities.

It is thus necessary to question the legal scheme that could be appropriate for the establishment of the STM. If examples exist, a reflection by analogy is possible on the form, but inoperative on the bottom. The physical laws peculiar to astronautics make it difficult to establish a system comparable to those put in place in other spaces. By definition, space objects placed in orbit are constantly in motion, and are constrained by their speed. A space object is not manoeuvrable with as much ease as an aircraft, or a ship, and it is thus impossible to imagine today being able to require from a space operator a similar control over its object.

Strictly speaking, concerning the need to protect satellites, the STM should thus be based on a logic different from that adopted for Air Traffic Management, with which it nevertheless shares certain problems. Among them, whether an international institution could play a role similar to that played by the International Civil Aviation Organization for flights conducted in international airspace. Indeed, outer space is not sovereign and thus, shares a status similar to the airspace overlooking the high seas. Just as air traffic and maritime traffic require common and shared rules of all, the future standards of space traffic cannot be defined as anything other than multilateral. It therefore seems that the authorities that should be privileged to lead the work related to the STM are first those that allowed to adopt the legal principles governing today’s space activities. That is what can be said concerning the need to protect satellites.

Solar sails and their legal status

For this new Space Law article on Space Legal Issues, let’s focus on solar sails and their legal status. Solar sails (also called light sails, or photon sails) are a method of spacecraft propulsion using radiation pressure exerted by sunlight on large mirrors. Based on the physics, a number of spaceflight missions to test solar propulsion and navigation, have been proposed since the 1980s. Let’s have a quick look at them and the legal status of these particular spacecraft.

A useful analogy to solar sailing may be a sailing boat; the light exerting a force on the mirrors is akin to a sail being blown by the wind. High-energy laser beams could also be used as an alternative light source to exert much greater force than would be possible using sunlight, a concept known as beam sailing. Solar sails offer the possibility of low-cost operations combined with long operating lifetimes. Since they have few moving parts and use no propellant, they can potentially be used numerous times for delivery of payloads.

Solar sails use a phenomenon that has a proven, measured effect on spacecraft. Solar pressure affects all spacecraft, whether in interplanetary space or in orbit around a planet (or small body). A typical spacecraft going to Mars, for example, will be displaced thousands of kilometres because of solar pressure, so the effects must be accounted for in trajectory planning, which has been done since the time of the earliest interplanetary spacecraft of the 1960s. Solar pressure also affects the orientation of a spacecraft, a factor that must be included in spacecraft design.

The Russian Konstantin Tsiolkovsky first proposed using the pressure of sunlight to propel spacecraft through space and suggested “using tremendous mirrors of very thin sheets to utilise the pressure of sunlight to attain cosmic velocities”. Potential applications for solar sails range throughout the Solar System, from near the Sun, to the comet clouds beyond Neptune. The craft can make outbound voyages to deliver loads, or to take up station keeping at the destination. They can be used to haul cargo and possibly also used for human travel.

IKAROS

IKAROS (Interplanetary Kite-craft Accelerated by Radiation Of the Sun), the first spacecraft to successfully demonstrate solar sail technology in interplanetary space, is a Japan Aerospace Exploration Agency (JAXA) experimental spacecraft. The spacecraft was launched on May 20, 2010, aboard an H-IIA rocket (an active expendable launch system operated by Mitsubishi Heavy Industries), together with the Akatsuki, also known as the Venus Climate Orbiter (VCO) and Planet-C, a Japanese space probe tasked to study the atmosphere of Venus. On December 8, 2010, IKAROS passed by Venus at about eighty thousand kilometres distance, completing the planned mission successfully, and entered its extended operation phase.

LightSail

LightSail is a project to demonstrate controlled solar sailing within Low Earth Orbit (LEO) using a CubeSat. The project was developed by The Planetary Society, a global non-profit organisation devoted to space exploration. It consists of two spacecraft: LightSail 1 and LightSail 2. LightSail 1 was an engineering demonstration mission designed to test its new sail deployment method in outer space, while LightSail 2, launched on June 25, 2019 by SpaceX, is a fully functional spacecraft intended to demonstrate true solar sailing. As a solar sail, LightSail’s propulsion relies on solar radiation, and not the charged particles of the solar wind.

The legal status of solar sails

The term Object in reference to outer space was first used in 1961 in General Assembly Resolution 1721 (XVI) titled International cooperation in the peaceful uses of outer space to describe any object launched by States into outer space. Professor Bin Cheng, a world authority on International Air and Space Law, has noted that members of the COPUOS during negotiations over the space treaties treated spacecraft and space vehicles as synonymous terms. The Space Object can be considered as the “conventional launcher (ELV)”, the “reusable launcher (RLV)”, the “satellite”, the “orbital station”, the “probe”, the “impactor”, the “space telescope”, the “International Space Station (ISS)”… As Professors Diederiks-Verschoor and Kopal wrote in An Introduction to Space Law, the term space object “is indeed the commonly used expression, but it must always be borne in mind that its exact meaning is still not quite clear”.

An object is defined by the Oxford English Dictionary as “A material thing that can be seen and touched”. The five Onusian treaties don’t use the term satellite, instead opting for “object launched into outer space” in the 1967 Outer Space Treaty or “space object” in the 1972 Liability Convention and the 1976 Registration Convention. The 1967 Outer Space Treaty doesn’t really provide a definition for “object launched into outer space” other than an indication in Article VIII that it includes the “component parts” of the “object launched into outer space”. To add to the mix, Article V of the 1967 Outer Space Treaty uses the term “space vehicle” and the 1968 Rescue Agreement (which is essentially an elaboration of Article V of the OST) uses the term “spacecraft”. A good definition is given by Professor Hobe who write that a “space object is a human made object launched into outer space intended to be used in (as opposed to merely transit through) outer space”.

Let’s remember that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”, Article 31 of the Vienna Convention on the Law of Treaties of 1969. In addition, “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”, Article 32 of the Vienna Convention on the Law of Treaties of 1969.

Let’s recall that a space object causing damage triggers international third-party liability under the Convention on International Liability for Damage Caused by Space Objects (entered into force in September 1972). Article I (d) of which enounces that “the term space object includes component parts of a space object as well as its launch vehicle and parts thereof”. Its Article II adds that “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight”.

A space object requires, thanks to the Convention on Registration of Objects Launched into Outer Space (entered into force in September 1976), registration. Article II of which states that “When a space object is launched into Earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry”.

Finally, the term space object effectively triggers application of much of both the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force in October 1967) and the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (entered into force in December 1968). Article VII of the first declares that “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies”.

Article 5 of the latter states that “1. Each Contracting Party which receives information or discovers that a space object or its component parts has returned to Earth in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State, shall notify the launching authority and the Secretary-General of the United Nations. 2. Each Contracting Party having jurisdiction over the territory on which a space object or its component parts has been discovered shall, upon the request of the launching authority and with assistance from that authority if requested, take such steps as it finds practicable to recover the object or component parts. 3. Upon request of the launching authority, objects launched into outer space or their component parts found beyond the territorial limits of the launching authority shall be returned to or held at the disposal of representatives of the launching authority, which shall, upon request, furnish identifying data prior to their return”.

The 1967 Outer Space Treaty doesn’t really provide a definition for “object launched into outer space” other than an indication in Article VIII that it includes the “component parts” of the “object launched into outer space”. It states that “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return”. We’ll conclude with the definition given by Professor Hobe who wrote that a “space object is a human made object launched into outer space intended to be used in (as opposed to merely transit through) outer space”. As a conclusion on solar sails and their legal status, these spacecraft are space objects.

The future space legal issues

What are the future space legal issues? Space law was created in the early 1960s as part of the United Nations, under the leadership of the United States of America and the U.S.S.R., then engaged in the race for the Moon. In the context of tension linked to the Cold War, the two great powers have sought to prevent space from becoming a zone of conflict.

Concerning future space legal issues, the founding text of this new branch of international law is the Outer Space Treaty (OST) of January 27, 1967. This framework agreement was supplemented by four specific international treaties: the Astronaut Agreement of April 22, 1968, the Convention on International Liability for Damage Caused by Space Objects of March 29, 1972, the Convention on the Registration of Objects Launched in Space of January 14, 1975, and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of December 18, 1979.

These texts lay down a series of great principles which are: freedom of use and exploration of outer space, non-appropriation of outer space, peaceful uses of outer space, protection of astronauts, authorisation and supervision of private space operations, responsibility for potential damages caused by space objects, and jurisdiction and control.

Since its adoption, space law has gone through several periods. First developed in the context of public international law to frame the activities of States in outer space, space law experienced a first significant change from the 1980s with the adoption of national laws aimed at regulating space operations conducted by private companies. Thus, while international law remains the general framework for space activities, they are now directly governed by national law. In France, space activities fall under LOI n° 2008-518 du 3 juin 2008 relative aux opérations spatiales.

The second change in space law, speaking about future space legal issues, aims to place the law at the service of entrepreneurial innovation. This evolution originated in the United States of America, first through the establishment of public-private partnership contracts. Through the 2005 Commercial Orbital Transportation Services (COTS), the 2008 Commercial Resupply Service (CRS), and the 2010 Commercial Crew Development (CCDeV), NASA has signed several contracts to boost the privatisation of outer spaceflights with innovative and cost-effective solutions. Entrepreneurial innovation is also encouraged by the adoption of specific laws in two new areas to support the private initiatives that led to the emergence of what is today-called “New Space”: sub-orbital flights through the 2004 amendment to the Commercial Space Launch Act, and the exploitation of celestial bodies though the 2015 Space Resource Exploration and Utilization Act.

Space powers, delegating business to companies, are now refocusing on their military space activities. While some demonstrate their ability to destroy satellites in Low Earth Orbit (LEO), and others announce the creation of space-specific armed forces, all fear the possible overflows resulting from this new militarisation of outer space. Finally, the development of outer space activities, with the increase of potential space debris, announces a saturation of some orbits; there is an urgent need to develop “space traffic management” tools, as it is already the case with airspace.

Space mining activities

While natural resources are being depleted on Earth, many of them are available in huge quantities on celestial bodies, including asteroids. Their exploitation, one of the examples of future space legal issues, runs up against Article II of the 1967 Outer Space Treaty (OST) which states that “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. All forms of appropriation are prohibited in outer space, including by private persons. This did not prevent the United States of America from adopting, at the request of private companies, the 2015 Space Resource Exploration and Utilization Act, or Luxembourg, in search of new markets to compensate the end of banking secrecy, to vote the law July 2017 on the Exploration and Use of Space Resources. Both texts set up a regulatory framework to allow private companies to exploit and sell the resources of celestial bodies.

How can these states affirm the international legality of these laws? Their argument consists in dissociating the appropriation of the celestial body, which is forbidden, from the exploitation of its resources, which would be lawful. Two arguments are advanced here. On the one hand, Article II of the Outer Space Treaty does not mention natural resources, but only celestial bodies. The principle of non-appropriation does not therefore concern resources. Thus, if the appropriation of a celestial body is prohibited, the exploitation of its resources would be lawful. Moreover, the American law expressly states that the United States of America does not claim any right of ownership in outer space. On the other hand, mining is protected by the freedom of use of outer space, proclaimed in Article I of the aforementioned international treaty.

The attitude of the United States of America here recalls the American position vis-à-vis the continental shelf when, on September 28, 1945, President Truman unilaterally proclaimed the jurisdiction of the United States of America over the natural resources of the continental shelf adjacent to the American coasts. Other States having made similar claims, the international law of the sea was eventually modified in the sense of recognition of sovereign rights to the exploitation of continental shelf resources by coastal States. With respect to the celestial bodies, other countries are in the process of developing national legal frameworks for the commercial exploitation of space resources, such as the United Arab Emirates, and Saudi Arabia. If the national normative movement continues with the adoption of other laws, the international law of outer space, like the international law of the sea, could be modified in the sense of the American national law.

Given the uncertainty of the lawfulness of the laws of the United States of America and Luxembourg, it is important to bring the debate back to an international forum, and find a framework to organise the exploitation of the natural resources of celestial bodies. Among the possible options, the establishment, under the responsibility of the Secretary-General of the United Nations, of a register of national authorisations, specifying the location (and the nature) of prospecting and exploitation operations, has been proposed. Such a system, which is not binding for States, if accepted by the space powers, would also meet the requirements of the 1979 Moon Agreement, and would be likely to reconcile the interests of the space industry around international law. France, which has signed the 1979 Moon Agreement, but has not yet ratified it, could be at the origin of such an initiative.

The militarisation of outer space – future space legal issues

In recent years, military space news has been very regular. The resurgence and reinforcement of the military space policies of the States, including France, is the occasion to return to the legal regime of military uses of outer space. This trend is also likely to revive the debate among States on an arms race in outer space, and its compatibility with the objectives of using space in the interest of humanity.

In the context of the Cold War already mentioned, the U.N. resolutions prior to the adoption of the 1967 Outer Space Treaty specified that space should be reserved only for “peaceful purposes”. But from one resolution to the other, a door to the possibility for States to use outer space as a military arena, has been opened. . Indeed, on May 1, 1960, the U.S. U-2 spy plane was shot down by the Soviet Air Defence Forces while performing photographic aerial reconnaissance, and the opportunities offered by satellites became essential to the geopolitical interests of space nations.

Article IV of the 1967 Outer Space Treaty states that “States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner”. It then continues with “The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited”. Since the legal concept of “celestial body” includes celestial objects of the asteroidal type, and planetoid type, the latter are protected from any military exploitation; if not from any commercial exploitation.

As far as the near-Earth space is concerned, article IV of the aforementioned international convention authorises States to transit through outer space, objects carrying nuclear weapons or weapons of mass destruction. In addition, it is allowed to put into orbit weapons that do not cause mass destruction. Let’s recall that the Preamble of the 1967 Outer Space Treaty affirms the following: “Believing that such cooperation will contribute to the development of mutual understanding and to the strengthening of friendly relations between States and peoples”.

Then came two interpretive theories about the scope and meaning of the “peaceful uses of outer space”. The first, strict, considers that outer space cannot be used militarily, the term being the opposite of peaceful. Space satellites would therefore be prohibited from all espionage, surveillance, and more generally, all military satellites. This is, in any case, the meaning given to the peaceful use provided for in the 1959 Antarctic Treaty System. The second theory, that of non-aggression, considers that non-aggressive military use of outer space can be considered peaceful. It would even be necessary for the maintenance of peace, which would be impossible without constant reciprocal surveillance by States. Moreover, the antonym of “peaceful” is not “military” but “warlike”. The second interpretation, that of “non-aggression”, is today the predominant one.

Space traffic management

As the number of space objects in orbit around the Earth increases, so does the chance of them colliding. The speeds at which they travel pose the threat, for each of them, of considerable dangers, if not fatal. Operational objects, manoeuvring or not, operated from the Earth, are added space debris. This diverse population of inactive objects, bringing together satellites of several tons, as well as stages of launchers or even splinters of paintings detached from them, evolves in various orbits.

The increase of this orbital population now seems almost inevitable. On the one hand, the reduction in the costs of access to space, the result of the miniaturisation of satellites, and the drop in launch costs, invites more and more actors to take part in these activities, and those activities to multiply. On the other hand, the proliferation of debris, reinforced by the increasing risk of collisions between them, considerably increases the number of obstacles in orbit.

Ensuring the viability of orbital activities therefore implies setting up a “space traffic management” regime, that is to say a set of rules for the conduct of these objects. This problem, now the subject of many works, is generally referred to by the English expression Space Traffic Management (STM). It cannot be decorrelated from space surveillance capabilities, referred to as Space Situational Awareness (SSA).

Under the lens of law, these space legal issues present a dual challenge. On the one hand, the legal regime for space activities requires the establishment of such a device for its perfect application. On the other hand, law is the appropriate instrument for the construction of these norms. Indeed, the application of certain mechanisms established by space law requires that rules relating to Space Traffic Management be defined. This is particularly the case with regard to liability.

The 1967 Outer Space Treaty and the 1972 Liability Convention cited above establish a very special regime of responsibility, unique in international law. The latter is structured around two possible situations in the event of damage caused by a space object: either the damage takes place on Earth or is caused to an aircraft in flight, or it takes place elsewhere, that is to say in outer space. In the first case, liability is flawless: that is, the mere occurrence of the damage caused by the space object is sufficient to hold the liability of its launching State or one of them in case of plurality of launching States. In the second case, liability is said to be for a fault: that is to say, it is necessary to demonstrate that the damage caused by the space object is the result of a fault. If this double regime presents no conceptual difficulty, the “fault” to which reference is made in the second case, is not defined. Therefore, it becomes difficult, if not impossible, to determine with certainty whether the responsibility of a launching State can be accepted in the event of damage that a space object would have caused to another space object.

In this respect, establishing a “Space Traffic Management” regime, widely understood as a set of rules governing the conduct of space objects, is necessary to establish the existence of a fault and with it, to engage the responsibility of a launching State for damage caused in outer space. Failure to comply with these “conduct rules” would constitute misconduct within the meaning of the 1972 Liability Convention, and would thus, make it possible to apply the planned regime strictly. Conversely, Space Traffic Management is one of the major new challenges in space law, as it is the tool by which such a regime can be established. In any case, this set of future standards, governing the conduct of space objects in orbit, will be a component of the broader set of legal and regulatory frameworks for space activities.

It is thus necessary, in research on future space legal issues, to question the legal scheme that could be appropriate for the establishment of the STM. If examples exist, a reflection by analogy is possible on the form, but inoperative on the bottom. The physical laws peculiar to astronautics make it difficult to establish a system comparable to those put in place in other spaces. By definition, space objects placed in orbit are constantly in motion, and are constrained by their speed. A space object is not manoeuvrable with as much ease as an aircraft, or a ship, and it is thus impossible to imagine today being able to require from a space operator a similar control over its object.

Strictly speaking, the STM should thus be based on a logic different from that adopted for Air Traffic Management, with which it nevertheless shares certain problems. Among them, whether an international institution could play a role similar to that played by the International Civil Aviation Organization for flights conducted in international airspace. Indeed, outer space is not sovereign and thus, shares a status similar to the airspace overlooking the high seas. Just as air traffic and maritime traffic require common and shared rules of all, the future standards of space traffic cannot be defined as anything other than multilateral. It therefore seems that the authorities that should be privileged to lead the work related to the STM are first those that allowed to adopt the legal principles governing today’s space activities.

These selected issues for space law range from the most prospective to the most practical. All three demonstrate the need to stay in an international setting. The international nature of outer space and the idealist objectives of the 1967 Outer Space Treaty require the U.N. to act as soon as possible, remembering that, as written in Article I of the OST, “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries”. This is what can be said concerning future space legal issues.

The future of dirigible balloons

Airships (airships or dirigible balloons are types of aerostats or lighter-than-air aircraft) are currently enjoying renewed interest, as evidenced by ongoing programs in France or abroad. This very old aeronautical solution presents an interesting alternative from an economic point of view, because of its sobriety in terms of fuel consumption. Another advantage is its hovering capacity.

The main disadvantages of this solution are its vulnerability to aerological conditions, its low manoeuvrability, and the delicate control of manoeuvres on the ground or near the ground. The two main applications considered, dual, are freight transport and surveillance. The integration of technological advances in the design of these machines (in terms of materials, control, hybrid or all-electric propulsion…) suggests new perspectives.

To see these machines fly one day on a large scale, a major challenge will have to be taken up, that of certification, formed by its three main pillars: airworthiness, pilot training for these very specific aircraft, and their integration into the airspace.

The most promising perspectives for dirigible balloons

The first application concerns the transport of point-to-point freight, heavy and/or bulky loads. This solution can also make it possible to open up isolated areas while avoiding building infrastructures. For example, there is the possibility of a Sahara air link between the oil extraction points and the Mediterranean coast, or the East (where the economic centres are located) and West (where the resources are located) link in China. In France, the LCA60T program run by FLYING WHALES helps to improve logging in mountainous regions. This concept of unprecedented employment is established in collaboration with the French Office National des Forêts.

Another application of interest is surveillance or long-endurance tropospheric observation (five to ten days). In fact, the airspace permanence capabilities of dirigible balloons, potentially far superior to any other aircraft, and in addition to low energy costs, offer interesting prospects. Historically, this application has spawned several developments, including Good Year soft airships in the United States of America. These dirigible balloons were operational until 1962 in the U.S. Navy. Regularly, concepts stand out on these applications. The latest notable achievements in this area are the Blue Devil 2 airship (United States of America) program, stopped in 2012, while the aircraft was almost finished, and Lockheed Martin’s eighty-five meters ling LEMV.

Finally, the dirigible balloons could be used to great advantage for high altitude long endurance applications (twenty kilometres, one year) in the field of monitoring observation, or telecommunications relay. Several projects have been conducted in the United States of America, a program is underway in China (Yuanmeng). In France, the Stratobus project sponsored by Thales Alenia Space is under development. It should be noted that these applications are dual, that is to say, usable in a framework of military employment as well as civil employment.

Promising opportunities for dirigible balloons

Dirigible balloons are mainly used for long-term surveillance purposes. Several categories (volume class) exist, and permanence on the zone can vary from a few days to a month. To hold the wind sufficiently efficiently, it is necessary to use a shaped form that is oriented in the wind bed, and to have a ground station that accompanies the gyration of the dirigible balloon. For these surveillance applications, the United States of America has been using dirigible balloons for four decades: for border surveillance (like the Tethered Aerostat Radar System, or the Joint Land Attack Cruise Missile Defense Elevated Netted Sensor System) or advanced databases (like the Persistent Ground Surveillance Systems). In France, several companies manufacture such dirigible balloons; we can cite for example the companies Airstar and A-NSE.

Specificities of the aircraft

The airship belongs to the family of aerostats, that is to say that it uses the principle of buoyancy to ensure its lift, unlike aerodynes (planes, helicopter…) that use the principle of aerodynamic lift. To do this, the airships consist of an envelope of a very large volume in which is imprisoned a gas lighter than air. Helium, an inert rare gas, is used for the most part in current applications. This rare gas is largely preferred to dihydrogen, lighter and more abundant, for safety reasons, because dihydrogen is indeed a highly flammable gas. However, it is not excluded to consider dihydrogen in the future, provided that the safety of the solution is demonstrated.

Flying with a dirigible balloon is therefore based on the control of Archimedes’ principle. Several parameters influence the variability of this thrust. The buoyancy of Archimedes is proportional to the density of the air. This density varies in particular according to altitude and atmospheric conditions. Airships generally operate at constant envelope volume. The difference in altitude will cause a modification of the thermodynamic properties of the gases, resulting in a variation of the volume of the carrier gas. Classically, this is achieved by a regulation based on exchanges, filling/evacuation with the outside air.

It will also be necessary to ensure permanently the vertical balance of the machine, that is to say the first order to balance the weight, and aerostatic lift. The machine mass variations are therefore to be studied with great care: load transfer case (transport application), compensation of fuel consumption. It is therefore necessary to put a gas management system adapted to the use of the airship, which does not exist, or little in the current aeronautical world. It is therefore difficult to find qualified equipment on the shelf, and it will be necessary to develop appropriate equipment (performing from the point of view of mass).

The legal status of dirigible balloons

HAPS are aircraft, usually unmanned airships or airplanes. Stratospheric flights above fifteen kilometres altitude were already made in the 1930s, in balloons with pressurized gondolas, manned by pioneers such as the Swiss Auguste Piccard. In the 1990 and 2000 decades, several projects were launched in order to explore the potential application of high altitude platforms for telecommunications and remote sensing. Large projects were started in the United States of America, Japan, and South Korea. A remarkable fact for the HAPSs concept was the initial definition of a frequency band for its telecommunications services on the World Radiocommunication Conference 1997 (WRC-97), organized by the International Telecommunication Union (ITU), which deals with the regulation of the use of radio frequencies. At this conference, the term “High Altitude Platform Station” (HAPS) has been established, defined as a telecommunications station located at an altitude of twenty to fifty kilometres and at a specified fixed point relative to the Earth. This fact shows that, at the time, there was a growing interest in HAPS utilization as a complement to terrestrial and satellite-based communications network. Over the years, several terms have been used for this type of aircraft, such as: “High Altitude Powered Platform”, “High Altitude Aeronautical Platform”, “High Altitude Airship”, “Stratospheric Platform”, “Stratospheric Airship” and “Atmospheric Satellite”. The term “High Altitude Long Endurance” (HALE), which has sometimes been used to label HAPS, is generally more associated with conventional unmanned aerial vehicles (UAVs), with service ceiling of about eighteen kilometres, as the Northrop Grumman RQ-4 Global Hawk. Currently, the expression “High Altitude Platform” (HAP), adopted by the ITU, has been the most commonly used. The most common types of aircraft used as HAPS are: airplanes, airships and balloons.

The main HAPS applications are in telecommunications and remote sensing, both civilian and military. In the area of telecommunications some of the advantages of HAPSs in relation to terrestrial networks (relay towers) are larger coverage area, less interference caused by obstacles (buildings, ground elevations) and shorter time to deployment. Compared to satellites, HAPSs have the advantages of lower latency (transmission delay) and the possibility of return for maintenance or payload reconfiguration. For remote sensing, HAPSs have as an important advantage over satellites, mainly the low orbit ones, and the ability to remain continuously over an area for very long periods (persistence). Another advantage is to permit better resolution images, because they are closer to the covered areas. Designing aircraft to operate in the stratosphere as HAPS imposes major technological challenges, with the main ones being: lightweight structures, energy generation and storage, thermal management, operation at low altitude and reliability. Some aspects of each of these challenges will be discussed next. The HAPS projects, both airplanes and airships, are optimized for the stratosphere conditions, at altitudes close to twenty kilometres, where the thin air is relatively calm and the wind speed is low.

Another important aspect to be considered in HAPS operations is the coordination with the airspace control organizations. Most of the time of flight of a HAPS is above the air control altitude limit, usually defined at twenty kilometres. The launch and recovery phases, which occur at lower altitudes, should be planned in conjunction with the airspace control agency, with the definition of specific segregated areas for that operation. The integration of unmanned aircraft in not segregated airspace is a subject not yet regulated, mainly due to the issue of avoiding air collisions (“sense and avoid”). Aspects in the field of International Law related to the overflight of other countries also need to be analysed. From 2013, Airbus Defence and Space, Thales Alenia Space, Google and Facebook began investing in HAPS projects mainly aimed to supply Internet in areas without telecommunications infrastructure, bringing new hope to achieve the establishment of a HAPS industry. The future of HAPSs will be driven mainly by the evolution of technologies of potential competitors, such as microsatellites constellations, and the availability of financial resources to overcome the HAPS technological challenges.

As a conclusion, we can believe that those dirigible balloons will be considered aircrafts and will fall under aircrafts legal status.

French ONERA and outer space

Let’s have a look at the French ONERA and outer space. More than sixty years after its conquest, outer space is at the heart of the life of states and their inhabitants. More than ever, it constitutes this “new frontier” and its control is a marker of power and prestige well identified. It is used daily by scientists in the study of an Earth under surveillance, as well as to probe and explore the Universe. It is also part of the day-to-day lives of billions of people, using the geolocation capabilities provided by GPS and Galileo constellations.

In addition, outer space has been heavily militarised since the beginning of its conquest: a ballistic missile transit medium, and a satellite positioning medium. As a post office area, it extends the search for the advantage given by the mastery of a “high point”. It is also an environment intimately linked to nuclear capabilities and state ballistics.

The Defense and National Security Strategic Review, published in December 2017, also makes a special mention of “the exo-atmospheric space” under the heading “disputed spaces”. In particular, it indicates that this is a “poorly regulated” environment, and that the trivialisation of access to outer space will make it an area of ​​confrontation between states, in other words, the question of weaponization of outer space is already in place.

The very recent positions adopted in the United States of America reinforce this trend. At the third meeting of the National Space Council, held on June 18, 2018, the President of the United States of America emphasised the importance of the space sector, in terms of job creation and national pride, but also in the field of defense. It is in this context that he asked the Defense to set up a Space Force.

This trend is also confirmed by the various demonstrations of force that we have been witnessing for years: very recently, it was India that proceeded to the destruction of one of its satellites in Low Earth Orbit (LEO), using a missile, becoming thus the fourth country to demonstrate an anti-satellite capability.

Nothing that happens in outer space is therefore trivial for France and, for about a year now, several initiatives emanating in particular from the Ministry of the Armed Forces, the Ministry of the Economy, and the Ministry of Higher Education, have re-examined the space policy elements of the country.

The Office National d’Études et de Recherches Aérospatiales (ONERA) is the French national aerospace research centre. It is a public establishment, with industrial and commercial operations, and carries out application-oriented research to support enhanced innovation and competitiveness in the aerospace and defense sectors. ONERA was created in 1946 as the “Office National d’Études et de Recherches Aéronautiques”. Since 1963, its official name has been changed to include space activities.

ONERA’s investment in the space sector concerns both civilian and military purposes, where research focuses on space surveillance, the acquisition of geospatial intelligence, or the development of sensors at sometimes unique levels in the world.

Surveillance of space, its challenges of sovereignty, and its diplomatic benefits

The GRAVES (Grand Réseau Adapté à la Veille Spatiale or Large Network Adapted to Space Watch) radar is the only operational space surveillance system in Europe. It is used by the French Air Force and its data are exploited at the CNOA (Centre National des Opérations Aérienne or National Center for Air Operations) based near Lyon. It was designed by ONERA, and it is also ONERA that has driven its realisation. Thanks to the French ONERA, France has an autonomous database of the orbital elements of the different satellites.

Since it was put into operational service in 2005, it has listed and regularly monitored over two thousand and five hundred objects that pass over France’s territory. It allows France to have an autonomous development and maintenance of the space situation in Low Earth Orbit (LEO), on the objects of the range of the mini-satellite at an altitude of roughly one thousand kilometres.

This achievement also illustrates ONERA’s contribution to the sovereignty of France and its diplomacy since, on April 14, 2015, on the side-lines of the Space Symposium, the annual meeting of space professionals in Colorado Springs, the French Joint Space Command (CIE) and the U.S. Strategic Command have signed a technical arrangement to strengthen bilateral Franco-American cooperation in the area of ​​space surveillance. This arrangement was a continuation of the Memorandum of Understanding signed in January 2001; it extends the sharing of useful data for space surveillance, ensures the safety of satellites, and combats the proliferation of space debris.

ONERA is now working on the future of Low Earth Orbit (LEO) monitoring, that is to say, altitudes below two thousand kilometres, by proposing a system capable of responding to the challenges dictated by developments in the space environment. In the future, it is a question of having the knowledge to adapt to the dynamics of the new objects in orbit, to improve the detection of smaller and certainly manoeuvring satellites, and to catalog many more numerous and more varied measurements. In summary, it will be necessary in the near future to be able to catalog smaller space objects, in greater numbers, and at higher altitudes.

Space surveillance is not limited to the use of radar, but includes optics through the use of adaptive optics skills. Adaptive optics enable real-time correction of disturbances caused by turbulence in the Earth’s atmosphere, and provide a high-resolution image of a satellite in Low Earth Orbit (LEO) by enabling the subsystems of which it is composed, to be identified. ONERA uses a telescope of one meter and a half diameter, equipped with an adaptive optics system, including a wave surface analyser, and deformable optics to obtain images and video sequences of satellites.

Meteorology, a natural supplement of surveillance – French ONERA

Outer Space is also a medium that can be dangerous simply because of the natural phenomena of which it is the seat. We know how atmospheric meteorological conditions affect military operations and, like classical meteorology, there is also a space weather whose knowledge is decisive for a space power such as France. ONERA has dedicated scientific teams to this activity, notably to model radiation belts and charged particle fluxes, and to study theoretically and experimentally the interactions between a satellite and its environment. This knowledge of the environment also allows to be able to differentiate, to remove any ambiguity, between disturbances of natural origin, and aggression. It will be a question of being able to qualify the real dangerousness of the threats which will appear, and to deduce the risks incurred, in order to elaborate the solutions of mitigation of these risks, even of protection of satellites.

The ballistic anti-missile space alert: a recurrent concern

The proliferation of the ballistic threat is certainly not a new subject, but it has been particularly acute for some time now, with the recent demonstrations of North Korea. Recently, Iran tested its Khorramshahr missile, with a range of two thousand kilometres, a missile of North Korean origin based on a Russian missile.

To be able to counter a ballistic missile, the key point is to be able to detect its launch early enough to allow a missile defense system to come into action. Ten years ago, France launched two satellites named SPIRALE that made it possible to have a satellite capable of detecting missiles, and, above all, to collect a harvest of information. SPIRALE has indeed enabled the creation of a database that includes a very large number of images essential to the understanding of natural and physical phenomena that can generate false alarms during the detection of missiles during their propulsion phase.

French ONERA was in charge of exploiting this database, by confronting it in particular with the results of modelling of the ground in the infrared on the one hand, and infrared signatures of the missiles on the other hand. French ONERA used its expertise in modelling atmospheric scenes and measurements of cloudy scenes in the infrared domain. Regarding missile signature modelling, this is a difficult problem because it involves several disciplines (aerothermochemistry, radiation, influence of turbulence…) to obtain a representative result.

It can be seen that France has many assets to cope with the growing demand of its Armed Forces for the space environment. This is particularly the case in many highly technological sectors, such as sensors, whether optoelectronics or radar. On the other hand, France has been witnessing for several years now an acceleration of the pace of innovation, and a multiplication of actors. Although France must not lose sight of the fact that the gains made by private actors, particularly in the United States of America, traditionally cited as examples, are based on a long-term effort by the federal state, it is essential for France to find or acquire a pioneering spirit. After all, to mention only the military space, France did it with missions like Clementine or Spirale not so long ago.

Space archaeology: how to protect lunar sites?

For this new Space Law article on Space Legal Issues, let’s have a look at space archaeology. As private companies or NASA revive the space race to Mars, the Moon has once again become an important landmark in space exploration. How to protect the first sites of space exploration, when space is supposed to belong to everyone? The trace of the boot left on the lunar floor by Neil Armstrong in July 1969 is still intact, fifty years later.

Two golf balls, a work of art entitled “Fallen Astronaut”, a falcon feather, twelve pairs of space boots, ninety-six bags of excrement, and especially more than fifty remains of space vehicles, from stages of the rocket Saturn V, to the lunar exploration modules used by NASA… On the Moon, the traces of the passage of our specie remain immutable for fifty years, insensitive to the passage of time.

Really? In the wake of the renewal of space exploration, while NASA and private companies, SpaceX in the lead, announce wanting to send people to Mars, the Moon seems to have become a point of step in the race for outer space. The footprints of Neil Armstrong, Buzz Aldrin, and the astronauts who followed them, are still printed in the lunar dust, and it would be enough for a new explorer to venture a little too close to this historic site, to destroy its archaeological character.

Return to the Moon: a stage of space exploration,and space archaeology?

If Donald Trump wishes to return to the Moon in the next five years, as he has announced, it is primarily by political calculation. In 2020, the current president of the United States of America is expected to run for a second term, and such a promise is in line with its flagship slogan: “Make America Great Again”. Bringing the race to the forefront, with a return to the Moon announced for 2024, Donald Trump indirectly invokes the fantasy past of the Kennedy era, and hopes to reconnect with the era of American success.

NASA is not the only one to want to return to the Moon. Our natural satellite is an obligatory step in the conquest of the Solar System, and Chinese as Indians, in full development of their respective space programs, have already announced they want to go there by 2030. On the side of private companies, some entrepreneurs are more willing to promote space tourism. Others have put the Moon at the heart of their communication, like the Berlin company PTScientists, supported by Vodafone, which has already announced its willingness to install a mobile antenna on the Moon, in order to facilitate future scientific explorations…

The company does not deprive itself and announced its willingness to take advantage of missions to return to the landing site of the Apollo 17 mission, the last to have taken our specie on the Moon, interesting for space archaeology. “Outer space belongs to everyone, and with Mission to the Moon, we invite the world to join us at this pioneering stage of access to space exploration. The inspiration transmitted by the Apollo missions touched people who, like me, were not born and could not live them. Apollo 17 marked the end of a chapter in space exploration, but as we enter a new chapter, private exploration, I want to create a new Apollo Moment, to inspire a new generation of explorers, engineers and scientists”.

The Berlin company plans to visit the Apollo 17 site to photograph the abandoned rover on site. If it announced that it has partnered with For All Moonkind, Inc., an international NGO whose sole purpose is to preserve the historical legacy of our specie in outer space, and work hand in hand with NASA, its intentions have led to questions about how best to safeguard these historic sites.

Is outer space belonging to everyone?

But is outer space belonging to everyone, as Robert Boehme, from the Berlin company PTScientists, says? And should “Neil Armstrong’s footprints be on the moon for all eternity?” recently asked The New York Times. Let’s recall that the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967), in its Article I, states that “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation”.

Article II of the aforementioned international convention declares that “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.

The first two articles provide that no state may appropriate outer space, so nothing protects the sites where the American astronauts landed, if not classical law. The legal regime of objects brought into outer space or on celestial bodies obeys the principles of protection of private property, and restitution to the owner. Unless a declaration of abandonment by the owner, which has never been the case, there is no concept of wreck in space law. It is the protection of objects and their constituent elements that is put forward. It is therefore forbidden to pick up a golf ball. But if the objects of NASA still belong to the American space agency, nothing prevents new astronauts, or even robots, to walk on the sites, on the footprints of Neil Armstrong and Buzz Aldrin.

As a conclusion on space archaeology, nothing in space law prohibits the U.S. from setting up facilities to protect archaeological sites, and artefacts, such as a “base-museum”. The only legal obligation is that those installations or sites remain accessible to other states. The other option, if the U.S.A. cannot afford to return to the Moon to build the facilities necessary for the preservation of the places, would consist to ask for “international protection by the inscription in the UNESCO World Heritage Centre”. This is the option favoured so far by the NGO For All Moonkind, Inc., which is working to create a text that would preserve the legacy of our specie in outer space, a first draft of which was publicly released last April. The NGO intends to propose to the United Nations a program for the preservation of lunar sites that has been pre-validated by the United Nations Office for Outer Space Affairs (UNOOSA). If this proposition was to be accepted by the U.N., it would be the responsibility of all actors of outer space exploration, to preserve the archaeological sites beyond Earth, whether on the Moon, Mars or elsewhere. This is what can be said concerning space archaeology.

Aircraft certification

In our research on Space Law, we wanted for this new Space Legal Issues article focus on aircraft certification. The recent crash of an Ethiopian Airlines plane casts doubt on the certification methods of airliners. These long and laborious procedures have been proven, but the crash of two Boeing 737 Max in a few months, calls into question their effectiveness.

Should the methods of certification of airliners be reviewed? The question arises after two successive accidents on Boeing’s latest aircraft, the 737 Max, which claimed the lives of three hundred and forty-six people. Since March 12, 2019, the plane has been grounded, and the air sector is facing a systemic crisis: the American supervisory authority, the FAA (Federal Aviation Administration), and Boeing, are accused of having put on the market a faulty device.

Long and thorough test phases – Aircraft certification

The aircraft certification phase takes time: between the very beginning and the end, the procedure extends over at least five years. The certification tests actually start from the beginning of the launch of a new aircraft program: in the case of the A380 for example, these tests began in 2002, when the first elements were manufactured. The inaugural flight only took place in 2005, and the aircraft was put into service two years later, in October 2007, at Singapore Airlines.

We do not certify the aircraft directly as such in one piece, we first test the different parts one by one, on the ground or on other aircraft”. For a new engine, the test engineers install it on the wing of an aircraft already in service, and check that it works well. It will only be installed on the new device once these tests are completed. “The plane itself is tested in a wind tunnel to verify that it is stable and balanced. All this is verified also in simulator. Then we get closer to the final version”. The prototypes (they were five in the case of the A380) then make tests of rolling, take-off at low altitude, before moving to more and more complex flights. “In the long term, we test the device in more and more extreme conditions: cold, hot, rain, thunderstorm, lightning… The goal is to test all the cases in order to reach an optimal safety for the passengers”.

Are there failures? “It’s very rare, because a large part of the parts have already been validated, we know what we expect, and we especially need to verify that the behaviour of the aircraft corresponds to the projections”. This test phase is now much less risky than in the past: “Thirty or forty years ago, test pilots were practising a risky profession where their intuition counted much more than today, where simulations predict very well the reality”. Nevertheless, sometimes, the test phases lead to changes that were not planned. During the first flights of the A380, the landing gear did not fit properly, and had to be modified.

Tests conducted by manufacturers under the control of independent authorities

A significant proportion of new aircraft are self-certified by manufacturers. A number of things do not need to be verified or validated: for example, all systems already certified and reused in a new aircraft (throttles, flaps…) have been validated on a previous device”. “On the other hand, the evolutions and innovations must be the subject of an additional certification by the regulatory authorities: the new sensors, the new flight controls, the new flight laws (which protect the aircraft, including actions of the pilots, in order to maintain it in stable flight”. These certifications can be local, conducted by a country. In China, aircraft produced and operated in this country are allowed to fly, but the manufacturers do not even try to get the European or American certificates, because these devices have absolutely no reliability required.

On the other hand, concerning aircraft certification, other certifications have the value of opening up access to all skies: these are the labels issued by the FAA (Federal Aviation Administration for the United States of America) and EASA (European Union Aviation Safety Agency for the European Union). These are extremely reliable certificates that have a high degree of trust. Typically, if the American authority certifies an airplane, this aircraft will also be accepted on the European territory. And everything, absolutely everything, is subject to certification. There are hundreds of standards for the smallest part, the least nut, the way to tighten the nut. When it was desired to remove the ashtrays armrests, it had been necessary to re-certify the entire seat while this modification was not about a vital equipment. No part without certification explains that this procedure is extremely expensive in time and therefore in money: one imposes a precision and obligations disproportionate compared to most other industries.

Revocable certifications in case of problems

Despite this amount of checks, there are still problems with aircraft entering service. The Boeing 787 Dreamliner was banned from flying for three months in 2013, because of the overheating of its lithium batteries, which threatened to catch fire, and spread the fire to the rest of the aircraft. But since then, the corrections made by the engineers have made this aircraft a model of reliability: no serious accident to report.

Other cases are more dramatic, like that of the 737 Max, the latest version of the Boeing single-aisle aircraft, whose first flight took place in 1967. This new aircraft, put into service in 2017, was built to nearly four hundred copies, but it is forbidden since March 12, 2019. Most countries of the world have withdrawn its certificate after two accidents that killed all people on board: the Lion Air 610 flight on October 29, 2018, which crashed in the Java Sea, and Ethiopian Airlines Flight 302, on March 10, 2019, which crashed near Addis Ababa. In both cases, the aircraft dipped shortly after take-off and the pilots failed to regain control. “These two accidents are a systemic crisis for the airline industry in the United States of America, because they directly challenge Boeing and the FAA. Boeing for having built a failed aircraft, and the FAA for failing to properly control the evolutions on this aircraft”.

At the heart of the problem: the new Boeing-designed flight control system called the Maneuvering Characteristics Augmentation System (MCAS). The 737 Max carries larger reactors, which had to be advanced and raised, to avoid being too close to the ground. But the centre of gravity of the aircraft was changed, and Boeing added an anti-stall safety system. But this system is based on a single probe, which sometimes sends misinterpretations, and orders the aircraft to prick forward. It is this system, which the pilots did not know how to deactivate, which would be at the origin of the crashes.

Also, the American manufacturer is also accused of wanting to minimise the changes made on the 737 Max, compared to the older generation of this aircraft. “The more change there is, and the more the companies have to incur training costs for their pilots”. After the first report of the Ethiopian investigators on April 4, Boeing took note that this device was involved and promised swift changes.

Kourou, the European spaceport

Kourou, the European spaceport, was not chosen by chance to become this special land, formerly of the French space program, and today of iconic European missions, and satellites from around the world. Favourable climate, near the equator, opening onto the ocean… Beyond these natural assets, if the CSG (Centre Spatial Guyanais), the Guiana Space Center, Europe’s spaceport, retains its place in the international chessboard, it is because it knows how to continually adapt to the expectations of satellite customers, and technological developments in the field of launchers and ground means.

Kourou and France

If the first Diamant rocket, launched from Hammaguir, raises France to the rank of third space power in the world (after the U.S.S.R. and the United States of America), it is indeed in Kourou that this adventure, then French, will take the scale of an epic. While France launches its first satellite, Astérix, since Algeria in 1965, Kourou embraces its fate as a land predestined for space activities. Barely four years after the decision to settle in Kourou, the European spaceport will launch its first sounding rocket, Véronique. It was April 9, 1968; the launch marks the operational qualification of the CSG. Then, more than three hundred and fifty rockets will be launched from French Guiana between 1968 and 1992.

Each flight of one of these machines marked a step towards mastering the ground facilities of a launch pad, and the birth of the Ariane program. It is this technical excellence supported by the unwavering political will of the European collaboration to guarantee an autonomous access to outer space that traces even today the contours of the future of Kourou, the European spaceport. What makes Kourou a privileged land: a wide opening on the Atlantic Ocean, and the possibility of launching space assets towards the East, without risk for the population and the surrounding goods, the proximity of the equator which allows to benefit the maximum of the energy provided by the speed of the rotation of the Earth (effect of slingshot), and thus makes gain the launcher a precious complement of speed, a vast, sparsely inhabited territory, and an area sheltered from cyclones.

Kourou, the European spaceport, is where the first French spacecraft will be assembled, but also where crucial missions for the young space power will start from. In 1979, France decided to have its own telecommunications system, already facing the American supremacy in this area. It is from Kourou that the two generations of the first Telecom satellites will fly away. With seven launches between 1984 and 1996, the constellation will offer the first telecommunications services to businesses and citizens of France.

In the field of observation, Kourou, the European spaceport, sees the entire constellation SPOT (Earth Observatory System). Started in 1977, the history of these satellites designed by CNES intertwines with that of the Ariane family. The first is launched in 1986 aboard an Ariane 1, and the last in May 2002 aboard an Ariane 4. SPOT then offers a vision of more precise Earth, and opens a plethora of applications of cartography to measuring the impact of natural disasters.

Today, France still relies on the CSG for its strategic missions in the field of defense. A recent example is the launch in December 2018 of the CSO (Optical Space Component) satellite. Under CNES contracting authority, these military observation satellites must contribute to strengthening the capabilities of the French forces in the field of space intelligence, support and conduct of operations on battlefields.

Kourou, the European spaceport and Europe

Following an agreement concluded between the French Government and the European Space Agency (ESA) in 1975, the CSG becomes Europe’s spaceport, the launching ground for the European launchers Ariane and Vega. Today, with Ariane 5, Vega and Soyuz, the CSG carries out ten to twelve launches a year but, above all, it guarantees autonomous access to outer space for the twenty-two ESA member states, and for space programs of the European Union.

Kourou, the European spaceport, has played a major role for Europe. From Earth observation to planetary exploration, the CSG teams have made and launched crucial missions for science, Europe and its citizens. It was from Kourou, aboard Soyuz and then Ariane 5, that the satellites of the Galileo constellation were put into orbit, guaranteeing an autonomous access to geolocation data, a European response to the U.S. GPS (Global Positioning System), the Russian GLONASS, and the Chinese Baidu.

There has also been the ATV, the cargo ship of the International Space Station (ISS), launched between 2008 and 2014, the Intermediate eXperimental Vehicle or IXV (an atmospheric re-entry test vehicle, launched in 2015), the same year as LISA Pathfinder (observing gravitational waves). More than thirty years ago, ESA launched Giotto, a European robotic spacecraft mission from the European Space Agency. The spacecraft flew by and studied Halley’s Comet, and in doing so, became the first spacecraft to make close up observations of a comet. It was in July 1985, aboard an Ariane 1. It was then the first mission of ESA to deep space. In the field of exploration, there has also been Rosetta, which was a space probe built by the European Space Agency, and launched on March 2, 2004 from Kourou, the European spaceport.

More recently, in 2018, BepiColombo flew from Kourou, the European spaceport, to join the planet Mercury. In terms of Earth observation, there has been TOPEX/Poseidon, launched from the CSG in 1992 aboard an Ariane 4, or the Pléiades constellation. It is also from Kourou that the European meteorological satellites of the European organisation EUMETSAT where launched from. After the first successful launch of Ariane 1, on December 24, 1979, CNES created Arianespace and brought Europe into the commercial market. Among the first customers, Intelsat has been launching since the CSG since 1983. One of its satellites was aboard Ariane 5 for its hundredth launch last year.

It was in 1984 that the first commercial flight under the banner of the Arianespace operator took place. It allowed the Spacenet 1 U.S. satellite to go into orbit. From its first steps on the commercial market, Kourou, the European spaceport has attracted American customers but not only. Among the historical customers, hosted in Kourou on several occasions, there has been for example the European Eutelsat, the Japanese JSAT, or the Indian Space Agency, which has been a loyal user of Ariane since the beginning. It was at the end of the 1980s that the order schedule was filled; rates increased to ten to twelve launches per year; Arianespace is the world leader for commercial launches. Today, customers come from all over the world to launch from the CSG, which has become a real window of French Guiana to the world.

With the Ariane saga, and the entry of Europe into the commercial arena, outer space is gradually becoming a buoyant economic sector in French Guiana. Today, according to the latest figures from INSEE published recently, outer space represents fifteen per cent of the wealth creation of the region, fifty-eight million American dollars in tax revenues, including twenty-two per cent of the granting of the ocean, and eleven per cent of investment. Forty companies are located on the launch base, whether their activity is directly related to the space sector, or the services necessary for its development and maintenance in operational condition. In French Guiana, outer space accounts for more than four thousand and five hundred direct, indirect and induced jobs within and outside the CSG, representing nine per cent of the region’s active population.

Space arrived by surprise in French Guiana, and it is now rooted in this territory, and has become a symbol and a partner of its development. CNES, according to the orientations defined by its supervisory ministries, contributes to the development of the territory on projects for the future of French Guiana, alongside the local authorities, and public partners. It is from Kourou — and Sinnamary, because the CSG is established on these two cities — that the European space has today to face the more and more rough competition. To this end, Kourou, the European spaceport, is preparing to host at the turn of the decade, Vega-C and Ariane 6, new European launchers. Kourou, the European spaceport, also has to modernise, in its infrastructures and its processes, to remain a reliable, adaptable, and competitive. An ambitious modernisation program is being prepared, with the faithful support of the European Space Agency (ESA) and its Member States.

The Land Remote Sensing Policy Act of 1992

After nearly a decade of attempting to guide the complex process of land remote sensing in the U.S., the 1984 Land Remote Sensing Commercialization Act was repealed; in its place, U.S. Congress passed the Land Remote Sensing Policy Act of 1992.

This action was prompted by what many observers consider a failed attempt at commercialisation and the inability of the old law’s provisions to meet the compelling needs of scientific research. The new law attempts to address these failures and, in many respects, has been successful.

The Land Remote Sensing Policy Act of 1992

On October 5, 1992, the Land Remote Sensing Policy Act of 1992 (Policy Act) was passed, repealing the Land Remote-Sensing Commercialization Act of 1984 (Landsat Act). The new law demonstrated that the U.S. national understanding of the value of remote sensing technology had matured. As the new law’s name indicated, long-term remote sensing policy — and its numerous facets — had become the focus of national decision making, rather than a single use.

Specific matters addressed by the Land Remote Sensing Policy Act of 1992 include program management, Landsat 7 procurement, Landsat 4 to 7 data policy, transfer of Landsat 6 program responsibilities, regulatory authority and administration of public and private remote sensing systems, federal research and development, advanced technology demonstration, Landsat 7 successor systems, data availability and archiving, and the continued prohibition of weather satellite commercialisation.

As a whole, the new legislation has four primary features: a focus on the value of remote sensing in conducting global change research and other public sector applications; a retreat from the attempted commercialisation of remote sensing as practised since 1984; a more formal merger of national security and environmental remote sensing activities; and provisions for the future evolution of remote sensing policy.

The expanded awareness of remote sensing’s value is still accompanied by some familiar problems that threaten to limit the new law’s promise. The most significant specific matter left unaddressed by the Land Remote Sensing Policy Act of 1992 is funding. Many of the legislation’s major provisions, like the management program, continued research and development, and the technology demonstration program, require adequate funding if the legislative mandate is to be carried out by those responsible for executing the then new law.

Environmental concerns in the Land Remote Sensing Policy Act of 1992

The congressional findings that supported the Land Remote Sensing Policy Act of 1992 revealed an important shift that had occurred in recognising the value of land remote sensing technology to the quality of life on Earth. The law recognised that Landsat data had research value to educational institutions and non-profit public interest entities, as well as to federal governmental researchers, and that “the cost of Landsat data has impeded [its] use for scientific purposes”. Availability of un-enhanced Landsat data to U.S. government-supported researchers and agencies was the “minimum” standard set by the Land Remote Sensing Policy Act of 1992 with full availability of Landsat 7 data “to all users at the cost of fulfilling user requests” its long-term objective.

Unlike the 1984 Land Remote Sensing Commercialization Act, which only tersely acknowledged the environmental applications of remote sensing data, the first congressional finding in the Land Remote Sensing Policy Act of 1992 declares that data from space “are of major benefit in studying and understanding human impacts on the global environment”. Global change research and the United States Global Change Research Program (USGCRP) are both specifically cited as activities to be supported by the acquisition of un-enhanced Landsat data. Despite the law’s recognition of the data needs of educational and non-profit institutions, statutory data distribution details were scant. A detailed data distribution plan has evolved in the give-and-take of negotiations among government agencies and the Landsat 6 contractor, and the U.S. government and foreign global change research partners. The question of whether the Act’s emphasis on global change research is the best way for remote sensing to address global change is also raised by the law.

National security

The new law recognises that “Landsat data are particularly important for national security purposes and global environmental change research”, and presages what may become more common in the future: a dovetailing of national security and environmental institutions and activities. This, and many other aspects of defence conversion, will be a major challenge for the U.S.A. in the 1990s. The post-Cold War draw-down of military forces will release large amounts of human and technological resources into the national economy.

In the case of remote sensing the Land Remote Sensing Policy Act of 1992 authorises the U.S. President to declassify intelligence satellite technology for the Landsat demonstration program. It is unrealistic to expect that the civil space program — which is minuscule compared to the enormous size of the defence establishment — will be able to, or should, absorb all of the newly-available resources. However, some conversion is certain, and it may be necessary to create new kinds of institutions to facilitate it. The Landsat Program Management provisions are specific enough to provide a possible model for doing so.

The Secretary of Defense and the NASA Administrator are jointly responsible for the Landsat Management Program and meeting its “fundamental goal”: unclassified data continuity. This reflects the congressional finding that the U.S.A.’s “broad civilian, national security, commercial and foreign policy interests will be best served by ensuring that Landsat remains an unclassified program that operates according to the principles of open skies and non-discriminatory access”.

Concluding remarks

The Land Remote Sensing Policy Act of 1992 has progressed beyond the 1984 Land Remote Sensing Commercialization Act, and has provided the elements necessary for vital U.S. remote-sensing institutions that can direct the U.S.A.’s remote-sensing future, and positively influence international remote-sensing activities. At the same time, it lacked clarity and some important provisions.

An important lesson for resolving the Land Remote Sensing Policy Act of 1992’s ambiguity in a productive and beneficial manner has been gained from a decade of experience with the 1984 Land Remote Sensing Commercialization Act. That law ultimately failed because of its narrow focus, short-term values, and lack of directed follow-through. Relevant as it is to the human condition, the global environment, and the global economy, remote sensing is, and will be, one of the most important technologies of the twenty-first century.

The Land Remote-Sensing Commercialization Act of 1984

The Land Remote-Sensing Commercialization Act of 1984, passed (after considerable deliberation) by the U.S. Congress, and signed by President Ronald Reagan, is a United States statute establishing a system to further the utilisation of satellite imagery data obtained from Earth observation satellites located in a geocentric orbit above the atmosphere of Earth. Two of the primary purposes of the Act were: a) to guide the federal government in achieving proper involvement of the private sector by providing a framework for phased commercialisation of land remote sensing, and b) to maintain the U.S.A.’s worldwide leadership in civil remote sensing, preserve its national security, and fulfil its international obligations.

Space technologies, because they involve activities that do not generally respect national boundaries, place new stresses on traditional international legal principles. These principles, based as they are on the rights and powers of territorial sovereignty, often do not supply sufficient direction for the use of new space systems. Both technologically advanced and developing nations have relied on international cooperation to resolve the complex legal problems that have arisen in the space age. As private firms begin to play a more significant role in space activities, the international coordination of space activities through domestic law and international agreements will continue to be essential to protect common interests and to ensure that special interests are dealt with in a common framework.

The Landsat program and liability

The Landsat program is the longest-running enterprise for acquisition of satellite imagery of Earth. On July 23, 1972 the Earth Resources Technology Satellite was launched. This was eventually renamed to Landsat. The instruments on the Landsat satellites have acquired millions of images. The images, archived in the United States of America and at Landsat receiving stations around the world, are a unique resource for global change research and applications in agriculture, cartography, geology, forestry, regional planning, surveillance and education.

When the first LANDSAT remote sensing satellite was launched in July 1972, the U.S. government owned and operated, through NASA, both the space and ground segments of the system. Since that time there have been many additional LANDSAT satellites launched. LANDSAT 8, the current and last satellite in this series, was launched in February 2013. In 1979, the responsibility for the operation of LANDSAT was transferred from NASA to the Commerce Department’s National Oceanic and Atmospheric Administration (NOAA). NOAA was chosen to operate LANDSAT partly because it already had responsibility for, and experience with, the U.S. meteorological satellites. Though NOAA was given interim operational control of the LANDSAT program, the ultimate goal of the transfer was to facilitate the transition of both the space and ground segments of the system to the private sector.

One of the most important attempts to delineate the responsibilities of states in outer space was the 1972 Convention of International Liability for Damage Caused by Space Objects. This 1972 Liability Convention extends the concept of state responsibility to include the concept of liability for damage caused by space objects. Article II establishes the principle that a launching state is absolutely liable for “damage caused by its space object on the surface of the Earth or to aircraft in flight”. Two points should be mentioned here.

First, the 1972 Liability Convention grants neither rights nor responsibilities to non-governmental entities. Under Article VIII, if the nationals of a launching state cause damage, it is the damaged state which “may present to a launching State a claim for compensation”. A second point of interest is that the 1972 Liability Convention applies, by its terms, only to “launching States” which are defined in Article I as: (1) a state which launches or procures the launching of a space object; (2) a state from whose territory or facility a space object is launched. Under this scheme, if state A launches a space object for the nationals of state B, both states are considered launching states and have joint liability for damage under Article V of the Liability Convention.

This is the case even though under the language of Article IX of the 1967 Outer Space Treaty, it is state B that bears the international responsibility for the “potentially harmful” activities of its nationals. This problem is somewhat alleviated by Article V of the 1972 Liability Convention, which allows a state that has paid compensation for damages “to present a claim for indemnification to other participants in the joint launching”.

The Land Remote-Sensing Commercialization Act of 1984

As the role of private industry varies between nations, and as it is those nations rather than their private industries that enter into international space agreements, it is understandable that some confusion exists as to the legal status of private industry in outer space. The U.S. Congress began passing in 1984 legislation designed to encourage the development of a U.S. private remote sensing industry. In the U.S.A., it has been consistent government policy to encourage the involvement of private enterprise in its space program. The U.S. PUBLIC LAW starts with the following: “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That this Act may be cited as the “Land Remote-Sensing Commercialization Act of 1984”.

The PURPOSES of the Land Remote-Sensing Commercialization Act of 1984 are to, according to SEC. 102., “(1) guide the Federal Government in achieving proper involvement of the private sector by providing a framework for phased commercialization of land remote sensing and by assuring continuous data availability to the Federal Government;”, “(2) maintain the United States worldwide leadership in civil remote sensing, preserve its national security, and fulfil its international obligations;”, “(3) minimize the duration and amount of further Federal investment necessary to assure data continuity while achieving commercialization of civil land remote sensing;”, “(4) provide for a comprehensive civilian program of research, development, and demonstration to enhance both the United States capabilities for remote sensing from space and the application and utilization of such capabilities;”, and “(5) prohibit commercialization of meteorological satellites at this time”.

Under SEC. 103. concerning POLICIES, it is stated that “(a) It shall be the policy of the United States to preserve its right to acquire and disseminate unenhanced remote-sensing data.”, “(b) It shall be the policy of the United States that civilian unenhanced remote-sensing data be made available to all potential users on a non-discriminatory basis and in a manner consistent with applicable antitrust laws.”, “(c) It shall be the policy of the United States both to commercialize those remote-sensing space systems that properly lend themselves to private sector operation and to avoid competition by the Government with such commercial operations, while continuing to preserve our national security, to honour our international obligations, and to retain in the Government those remote-sensing functions that are essentially of a public service nature”.

In order to comply with Articles VI and IX of the 1967 Outer Space Treaty, the Land Remote-Sensing Commercialization Act of 1984 requires that remote sensing operators be licensed by the Secretary of Commerce, and grants to the Secretary the power to develop appropriate regulations. Section 401. (b) of the Land Remote-Sensing Commercialization Act of 1984 states that “No license shall be granted by the Secretary unless the Secretary determines in writing that the applicant will comply with the requirements of this Act, any regulations issued pursuant to this Act, and any applicable international obligations”.

The primary purpose of the Land Remote Sensing Commercialization Act of 1984 is to provide an orderly transition from the Government’s LANDSAT program, to private operation of commercial remote sensing activities. However, in developing this legislation, great care was taken to ensure that private activities did not conflict with the international obligations of the U.S.A.. The success of this legislation has depended on the careful implementation of its provisions, and on the regulations provided by the Secretary of Commerce, in conjunction with other concerned federal agencies. Nonetheless, the Land Remote Sensing Commercialization Act of 1984 provides a useful means by which the economic needs of the private sector can be balanced with the legal and political concerns of the international community.

France in space: independence and cooperation

At the head of the third world space budget, France equipped itself in September with a military space command. Apart from manned flight, the hexagon is present in all areas: commercial launches, science, observation, telecommunications and defense.

With a budget of two and a half billion American dollars in 2019, France has the third largest budget in the world in terms of space program, far behind the United States of America (more than forty billion dollars including NASA and the budget of defense), and China (about seven billion). Born from the will of General De Gaulle in the early 1960s, the CNES (National Center for Space Studies) invests half of its credits in the European Space Agency (ESA), and collaborates with all the space powers of the planet in five main areas: launchers with the Ariane rocket, science (exploration of Mars, the Moon, the International Space Station), Earth observation, satellites and defense.

From V2 to Véronique: the birth of a French rocket

In the aftermath of the Second World War, we are not yet talking about a space program, but more about rockets; in 1945, we understand that the conditions are ripe to develop one day space travel. The appearance of V2, nuclear energy and radar are hopeful that the space adventure will soon be a reality”.

In France, as in the U.S.S.R. and in the United States of America, the efforts focus first on the study of the V2, the rocket developed by the Nazi regime at the end of the war to bomb the Allies (London and Antwerp mainly). The chemist Henri Moureu works in a laboratory in Paris when called to the site of an impact, where he understands that this is a new revolutionary machine “At the end of the war, however, the researcher struggles to convince the authorities to invest in this project, and only the Army gives him credits”. But funding is limited because France is engaged in the reconstruction of the country, and the Indochina war; the army decided in 1949 to form a team of technological watch in order not to lose this know-how: it is the birth of the Véronique program.

If the investment is not enough to develop a weapon, the salvation comes from a handful of scientists who see the opportunity to study the upper atmosphere, then called “the aerial ocean”. Henri Moureu and the geophysicist Étienne Vassy join the CASDN (National Defense Scientific Action Committee), a military organisation (created in 1948) to promote cooperation between scientists and the military. These visionary soldiers of the CASDN support the exploration program of the upper atmosphere and small rocket Véronique. The first scientific launch of the latter took place on October 29, 1954; it is a success, and France also owes it partly to the Germans employed at the end of the war.

In all, more than a hundred German engineers and technicians worked for French research, mainly in Vernon, near Paris, at the aeronautical ballistic research laboratory. Among them, Karl-Heinz Bringer, who worked in Peenemünde alongside Wernher von Braun, father of the V2 and the Apollo program, and who designed the propulsion system of Véronique. Wolfgang Pilz, brilliant technician, also developed the guidance system of Véronique before serving Nasser to destroy Israel, and return to Europe to avoid being assassinated by the Mossad”.

But business really took off only after 1956, when the government of Guy Mollet gives credits for France to be present during the International Geophysical Year, the IGY, between 1957 and 1958. Launched by British and American physicists, this meeting aimed in particular to better understand the interactions between the Sun and the upper Earth’s atmosphere. It is in this context that the U.S.S.R. launched Sputnik 1 on October 4, 1957. On the French side, however, nothing is ready because of the lack of funding. It is only in March 1959 that Véronique AGI (one of the rockets of the program) succeeds two launches with a spectacular discovery: the existence of the turbopause (by the team of Professor Jacques Blamont). The rocket, however, is not powerful enough to launch into orbit, but reaches two hundred kilometres.

In the wake of the U.S.S.R. and the United States of America

The first French satellite in space, Astérix, was launched by a Diamant A rocket on November 26, 1965, from the Hammaguir base in Algeria. When Charles De Gaulle returned to power in 1958, he believed that France must equip itself with ballistic missiles for the nuclear strike force; he hesitates a time between the manufacture of a national missile, and the purchase of a U.S. rocket under license. He finally decided in favour of autonomy, and created the Society for Study and Ballistic Research (SEREB) in September 1959, under military domination. In 1960, SEREB convinced that it could also develop a satellite launcher — Diamant — from its ballistic studies. In December 1961, the political authorities agreed to support the Diamant project, and the setting up of a space agency, CNES (National Center for Space Studies), following the CRS (Center for Space Research) created in January 1959 (to coordinate the first space activities). A few weeks before the re-election of Charles De Gaulle in December 1965, France achieved its first satellite launch, and thus became the third country to arrive autonomously after the U.S.S.R. and the United States of America. Astérix is ​​put into orbit after being launched from the Algerian base of Hammaguir.

Until 1967, most French launches are from Algeria in the Sahara Desert. The earliest rocket technology experiments took place in metropolitan France, at Mailly-le-Camp, a commune in the Aube department in north-central France, at the centre d’essais en vol de Brétigny-sur-Orge, or at the Île du Levant (sometimes referred to as Le Levant), a French island in the Mediterranean off the coast of the Riviera, near Toulon. But soon, the rocket range required to find uninhabited areas, to avoid risks in the event of an accident at launch. Created in 1947 to experiment all kinds of rocket engines, the Joint Space Test Center (CIEES) moved to Béchar, oasis that has several advantages including a railway linking it to Oran (Algeria, Africa). However, to launch powerful engines like Véronique, the site of Hammaguir, one hundred and twenty kilometres further south of Béchar, is retained. In the early 1960s, SEREB comes to test its first missiles. After the independence of Algeria in 1962, the Algerian authorities proposed to French authorities to rent the site — as Baikonur later will be to Russia by Kazakhstan — but Paris prefers to leave in July 1967, at the latest. While Biscarosse is selected for military trials, Kourou in French Guiana is chosen by the CNES; an area with few inhabitants and close to the equator, which facilitates launching (the centrifugal force created by the rotation of the Earth is the strongest in this location).

The Diamant 1 rocket was built by SEREB soldiers, but the new, more powerful version (Diamant B), is entrusted to CNES. The goal is to build a commercial launcher to put satellites in orbit, but France cannot afford to do it alone, and joins forces with the British and Germans to build the Europa rocket. But the project is a failure. Four launches (full launcher) and four failures attributable mainly to the fact that there was no main contractor; each country built part of the rocket without sufficient consultation. CNES then proposed to coordinate the following project, Ariane, whose launch is a success on December 24, 1979.

Apart from autonomous manned flight, France in space has a presence in all areas

Subsequently, Ariane became the world leader in the launch of satellites, and France developed its space program in all areas, except autonomous maned flight. The Ariane 5 rocket could have become the instrument of this quest: far more powerful than Ariane 4, the new launcher was designed to orbit heavy loads, because it also had to be able to carry the European spaceplane Hermes, which has never born. Supported by French Prime Minister Jacques Chirac at the turn of the 1980s and 1990s, this spaceplane project remained in the cards, because of the prohibitive cost. “When Germany withdrew, it was clear that Hermes would never fly. On the other hand, manned flight pays nothing, unlike commercial launches; it requires a political will, which has never been sufficient”.

Today, France sends its astronauts via Russia or the United States of America, who accept to take foreigners because the hexagon finances international programs. “We are associated with the International Space Station (ISS)”.

If Thomas Pesquet goes into outer space, it is because France provides laboratories and cargo ships to the ISS. In exchange, we have flights of astronauts. In the discussions that exist today for the return to the Moon, Europe will be involved, and therefore, France will play a role. Humans will walk on the Moon from 2025, there will be Europeans and therefore French spationauts”.

In addition to manned flight, France is present in space in the field of defense: “The family of satellites Helios has been in orbit since 1995, to observe the Earth, completed since the end of 2018 with the new generation CSO-1 satellite”. Secure telecommunication satellites have also been launched (Syracuse), or are about to be launched (CERES in 2020), and will be complemented by new systems announced by the Minister of Armies, Florence Parly, in July 2019. France will invest more than seven hundred million American dollars in the military space by 2025, to reinforce its means of surveillance, and to equip itself with in-orbit self-defense capabilities. A sum that adds to the more than three and a half billion American dollars already provided for France’s defense in outer space.

In the European context, France contributes with almost one and a half billion American dollars to the budget of ESA. The European Space Agency has twenty-two members, and France is the largest contributor. “This represents half of CNES’s budget, the second largest contributor is Germany, which pays almost nine hundred million American dollars”. It is to be noted that if we report France’s space budget to France’s population, France is the second largest space contributor in the world, with almost forty American dollars per year and per inhabitant, behind the United States of America, with fifty American dollars per year and per inhabitant. Outside Europe, France is the country with the most international cooperation.

The United States of America is France’s first partner, with projects in oceanography (Jason satellites), on Mars (Curiosity, InSight, Mars 2020). France also work with the Indians in the monitoring of the climate (SARAL, ALtiKa, and Megha-Tropiques), with China (CFOSAT, a satellite to observe wind and waves, participation in the future lunar mission Chang’e 6, where France will provide twenty-five kilograms of scientific experiments), with Japan (Martian Moons Exploration, a rover that will go on the moons of Mars in 2024), and Russia (Soyuz is also launched from Kourou). And France is also working with all the newcomers, such as Mexico, Israel, the United Arab Emirates, the Philippines, Indonesia… France provides satellite experiments, and those countries provide satellite launches, it is a win-win cooperation.

The National Oceanic and Atmospheric Administration

The National Oceanic and Atmospheric Administration or NOAA, is an American scientific agency within the United States Department of Commerce (an executive department of the federal government concerned with promoting economic growth) that focuses on the conditions of the oceans, major waterways, and the atmosphere.

The National Oceanic and Atmospheric Administration warns of dangerous weather, charts seas, guides the use and protection of ocean and coastal resources, and conducts research to provide understanding and improve stewardship of the environment.

As we read on the National Oceanic and Atmospheric Administration, “NOAA is an agency that enriches life through science. Our reach goes from the surface of the Sun to the depths of the ocean floor as we work to keep the public informed of the changing environment around them”.

The National Oceanic and Atmospheric Administration’s history

In 1807, President Thomas Jefferson founded the U.S. Coast and Geodetic Survey (as the Survey of the Coast) to provide nautical charts to the maritime community for safe passage into American ports, and along the extensive coastline. The Weather Bureau was founded in 1870 and, one year later, the U.S. Commission of Fish and Fisheries was founded. Individually, these organisations were America’s first physical science agency, America’s first agency dedicated specifically to the atmospheric sciences, and America’s first conservation agency.

The cultures of scientific accuracy and precision, service to protect life and property, and stewardship of resources of these three agencies were brought together in 1970, with the establishment of NOAA, an agency within the Department of Commerce, after U.S. President Richard Nixon proposed creating a new agency to serve a national need for “better protection of life and property from natural hazards, for a better understanding of the total environment, and for exploration and development leading to the intelligent use of our marine resources”.

The National Environmental Satellite, Data, and Information Service (NESDIS)

The National Environmental Satellite, Data, and Information Service (NESDIS) was created by the National Oceanic and Atmospheric Administration (NOAA) to operate and manage the U.S. environmental satellite programs, and manage the data gathered by the National Weather Service (an agency of the U.S. federal government that is tasked with providing weather forecasts, warnings of hazardous weather, and other weather-related products to organisations and the public for the purposes of protection, safety, and general information) and other government agencies and departments.

The National Oceanic and Atmospheric Administration’s mission: Science, Service and Stewardship

As we read on the National Oceanic and Atmospheric Administration’s website, NOAA’s mission is “to understand and predict changes in climate, weather, oceans and coasts, to share that knowledge and information with others, and to conserve and manage coastal and marine ecosystems and resources”.

To understand and predict changes in climate, weather, oceans and coasts

Science at NOAA is the systematic study of the structure and behaviour of the ocean, atmosphere, and related ecosystems, integration of research and analysis, observations and monitoring, and environmental modelling. NOAA science includes discoveries and ever new understanding of the oceans and atmosphere, and the application of this understanding to such issues as the causes and consequences of climate change, the physical dynamics of high-impact weather events, the dynamics of complex ecosystems and biodiversity, and the ability to model and predict the future states of these systems. Science provides the foundation and future promise of the service and stewardship elements of NOAA’s mission.

To share that knowledge and information with others

Service is the communication of NOAA’s research, data, information, and knowledge for use by the U.S.’s businesses, communities, and people’s daily lives. NOAA services include climate predictions and projections, weather and water reports, forecasts and warnings, nautical charts and navigational information, and the continuous delivery of a range of Earth observations and scientific data sets for use by public, private, and academic sectors.

To conserve and manage coastal and marine ecosystems and resources

Stewardship is NOAA’s direct use of its knowledge to protect people and the environment, as the National Oceanic and Atmospheric Administration exercises its direct authority to regulate and sustain marine fisheries and their ecosystems, protect endangered marine and anadromous species, protect and restore habitats and ecosystems, conserve marine sanctuaries and other protected places, respond to environmental emergencies, and aid in disaster recovery. The foundation of NOAA’s long-standing record of scientific, technical, and organisational excellence is its people. NOAA’s diverse functions require an equally diverse set of skills and constantly evolving abilities in its workforce.

Also underlying NOAA’s continued success is its unique infrastructure. NOAA’s core mission functions require satellite systems, ships, buoys, aircraft, research facilities, high-performance computing, and information management and distribution systems. The agency provides research-to-application capabilities that can recognise and apply significant new understanding to questions, develop research products and methods, and apply emerging science and technology to user needs. NOAA invests in and depends heavily on the science, management, and engagement capabilities of its partners. Collectively, NOAA’s organisational enterprise-wide capabilities — its people, infrastructure, research, and partnerships — are essential for NOAA to achieve its vision, mission, and long-term goals.

NOAA’s vision of the future

Again, as we read on the website of the National Oceanic and Atmospheric Administration, NOAA’s vision of the future includes “resilient ecosystems, communities, and economies, and healthy ecosystems, communities and economies that are resilient in the face of change”.

Earth’s ecosystems support people, communities, and economies. Our own human health, prosperity, and well-being depend upon the health and resilience of natural and social ecosystems. Managing this interdependence requires timely and usable scientific information to make decisions. Human well-being requires preparing for and responding to changes within these natural systems. NOAA’s mission of science, service, and stewardship is directed to a vision of the future where societies and their ecosystems are healthy and resilient in the face of sudden or prolonged change.

A vision of resilience will guide NOAA and its partners in a collective effort to reduce the vulnerability of communities and ecological systems in the short-term, while helping society avoid or adapt to potential long-term environmental, social, and economic changes. To achieve this vision we must understand current Earth system conditions, project future changes, and help people make informed decisions that reduce their vulnerability to environmental hazards and stresses that emerge over time, while at the same time increase their ability to cope with them. Resilient human communities and economies maintain or improve their health and vitality over time by anticipating, absorbing, diffusing, and adapting to change. Resilient communities and institutions derive goods from ecosystems in a way that does not compromise ecosystem integrity, yet is economically feasible and socially just for future generations.

To this end, the National Oceanic and Atmospheric Administration will focus on four long-term goals that are central determinants of resilient ecosystems, communities, and economies — and that cannot be achieved without the agency’s distinctive mission and capabilities.

Pedis possessio and asteroids

Pedis possessio, a Latin term which means “possession-of-a-foot”, is a principle or doctrine of mining law, according to which a qualified person who peaceably, and in good faith, enters a land in the public domain in search of valuable minerals, may hold the place exclusively against others having no better title, provided the person remains in continuous exclusive occupancy and, diligently and in good faith, prosecutes work towards making a discovery. This principle provides a person exploring an area freedom from fraudulent or forcible intrusions, while actually working on the site.

In the context of space law and that of the lawfulness of space mining activities, could the principle of pedis possessio interest space lawyers?

The General Mining Act of 1872

Congress enacted the first federal mining law in 1866, when natural resources seemed unlimited. The law invited citizens to prospect on public lands, and enabled them to acquire legal title to both the minerals and land within a claim on which they discovered a valuable mineral. In 1870, Congress enacted legislation supplementing the first mining law; two years later, Congress amended and consolidated those early laws, in the more comprehensive General Mining Act of 1872.

The General Mining Act of 1872 is a United States of America federal law that authorises and governs prospecting and mining for economic minerals, such as gold, platinum, and silver, on federal public lands. This law, approved on May 10, 1872, codified the informal system of acquiring and protecting mining claims on public land, formed by prospectors in California and Nevada from the late 1840s through the 1860s.

All citizens of the United States of America, eighteen years or older, have the right under the 1872 mining law to locate a lode (hard rock) or placer (gravel) mining claim on federal lands open to mineral entry. These claims may be located once a discovery of a locatable mineral is made. Locatable minerals include, but are not limited to, platinum, gold, silver, copper, lead, zinc, uranium and tungsten.

Miners and prospectors in the California Gold Rush of 1849 found themselves in a legal vacuum. Although the U.S. federal government had laws governing the leasing of mineral land, the United States of America had only recently acquired California by the Treaty of Guadalupe Hidalgo, and had little presence in the newly acquired territories.

Miners organised their own governments in each new mining camp, and adopted the Mexican mining laws then existing in California that gave the discoverer right to explore and mine gold and silver on public land. Miners moved from one camp to the next, and made the rules of all camps more or less the same, usually differing only in specifics such as in the maximum size of claims, and the frequency with which a claim had to be worked to avoid being forfeited and subject to being claimed by someone else.

The General Mining Act of 1872, enacted with the dual purpose of encouraging mineral development and promoting settlement of the West, allowed prospecting on unappropriated public lands. Under the statute, a prospector who discovers a valuable mineral may acquire fee simple title to the land within his claim. The statute, however, does not define a prospector’s rights during the exploration period before he actually discovers minerals; prediscovery rights are governed by the state common law doctrine of pedis possessio.

Prediscovery rights and pedis possessio

Pedis possessio protects a prospector who is diligently searching for minerals on public land against forcible, fraudulent, surreptitious, or clandestine entries by rival prospectors onto land which the prospector is occupying. Originally applicable only to the ground in the immediate area of a prospector’s workings, pedis possessio rights have then been generally deemed to extend to the boundaries of the claim a prospector was working, so long as the claim was clearly staked.

The classic enunciation of the doctrine of pedis possessio appears in dicta in the United States Supreme Court’s 1919 opinion in Union Oil Co. v. Smith. The Court stated that a prospector actively searching for minerals in the public domain is entitled to protection of the land he occupies against forcible, fraudulent, clandestine, or surreptitious intrusions. The Court identified the essential requirements for pedis possessio protection as continued actual occupancy of a claim, diligent work directed toward making a discovery, and exclusion of others. If any of these elements is missing, no protection is provided by the doctrine, and the initial prospector is left without special rights against his competitors.

  1. Persistent and Diligent Work toward Discovery. Persistent and diligent work toward mineral discovery traditionally has been required on each claim for which protection is sought. Satisfaction of the work requirement has almost invariably consisted of actual digging or drilling on the specific claim sought to be protected. Acts of location such as posting, marking, monumenting, staking, and recording are not considered work leading toward discovery. Similarly, patrolling a claim, watching over it, or placing signs, fences, or caretakers on it does not satisfy the work requirement, although such activity might help meet the occupancy and exclusion requirements.
  2. Actual Occupancy. Closely related to the work requirement is the requirement described in Union Oil as “continued actual occupancy”. Subsequent court decisions have reiterated that pedis possessio occupancy must be “actual”, not constructive. Because the United States of America retains title until after discovery, the common law principle of priority based upon “colour of title” is not relevant in possessory actions under mining law. Pedis possessio doctrine does allow constructive possession in the limited sense that a prospector may assert pedis possessio rights over the full area of a claim even though he is only working on a portion of the claim.
  3. The Exclusion Requirement. Pedis possessio protects a prospector against only forcible, fraudulent, clandestine, or surreptitious entries; if a claimant allows a rival to enter peaceably, without deceit or secrecy, the claimant loses his superior status. Accordingly, a prospector seeking pedis possessio protection must actively deny entry to rivals. Whether this requirement is met does not depend upon whether a prospector has or has not granted permission to rivals to enter; because federal lands are open to all citizens for prospecting, no permission is necessary.

Pedis possessio and asteroids

The doctrine of pedis possessio, which was first developed in ancient Rome, most generally grants ownership to the first person to set foot upon and claim formerly unclaimed property in the public domain. The 1967 Outer Space Treaty makes appropriation of celestial bodies impossible, but it might be argued under the doctrine of pedis possessio that, because asteroids are within the public domain, prospectors are granted the exclusive and unimpeded right to any resources they seek to extract.

Regarding claiming ownership over asteroidal resources, it appears that the ancient Roman law of pedis possessio will apply. Pedis possessio is the basis for Western law on ownership, and analogies have long existed in other parts of the world as well”.

Earth’s natural resources are already under pressure from the planet’s growing population, estimated to reach nearly ten billion by 2050. Rising demand for resources will eventually push the economic balance in favour of harvesting resources from space to sustain our lives on Earth.

The space industry is undergoing an extraordinary evolution. As national budgets tighten, governments are increasingly seeking to involve the private sector in all aspects of space transportation and exploration, which private companies are keen to do as the commercial imperative transforms the economics of outer space.

Both established players and start-ups are using lower cost technologies – including nano- and microsats – to build innovative systems and services in Earth observation or satellite communications. Private companies are already successfully delivering cargo to the International Space Station (ISS). Others are keen to develop the launch and hosting capabilities to take humans to the ISS, the Moon or even Mars. There is a recreational side, too. Space travel companies promise an exhilarating ride to the edge of our atmosphere and are actively offering seats on their future spacecraft.

Is in situ resource utilization, regarding the 1967 Outer Space Treaty, legal? The idea of using space resources was already around when the 1967 Outer Space Treaty was concluded at a time when the United States and the former Soviet Union were competing to reach the Moon. Let’s recall that Article II of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967) states that “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.

This Article II, with the development of private projects of mining asteroids or the Moon, and the advent of two laws enabling those practices (the Commercial Space Launch Competitiveness Act of 2015 and the Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace), is today subject to many debates.

As for whether space mining is legal or not, the doctrine of pedis possessio could be applied – and thus become a first step – to the prediscovery phase of prospection in outer space. This model of practise could be applied to prospectors in outer space, looking for resources, and hence give rights to private companies looking for precious minerals, gases or liquids.

Tardigrades on the Moon and space legal issues

Why is everyone in the space law community talking about tardigrades on the Moon? In April 2019, the lunar lander Beresheet – a privately funded Israeli project – crashed on the Moon. On board the spacecraft, Nova Spivack of the Arch Mission Foundation had decided to include some DNA in the payload, and, a few thousand extra dehydrated tardigrades had been attached to the “lunar library”. As for whether any of the DNA or tardigrades are still intact, that’s anyone’s guess, but Nova Spivack says there’s no reason to worry about water bears taking over the Moon. What about planetary protection and Article IX of the 1967 Outer Space Treaty?

What are Tardigrades?

Tardigrades, known colloquially as water bears or moss piglets, are a phylum of water-dwelling eight-legged segmented micro-animals. They were first described by the German zoologist Johann August Ephraim Goeze in 1773, who called them little water bears. In 1777, the Italian biologist Lazzaro Spallanzani named them “Tardigrada”, which means “slow steppers”.

They have been found everywhere, from mountaintops to the deep sea, and mud volcanoes, from tropical rain forests, to Antarctica. Tardigrades are among the most resilient animals known, with individual species able to survive extreme conditions – such as exposure to extreme temperatures, extreme pressures (both high and low), air deprivation, radiation, dehydration, and starvation – that would quickly kill most other known forms of life.

Tardigrades are usually about half a millimetre long when fully grown. They are short and plump, with four pairs of legs, each ending in claws (usually four to eight), or sucking disks. Tardigrades are prevalent in mosses and lichens, and feed on plant cells, algae, and small invertebrates. When collected, they may be viewed under a very low-power microscope, making them accessible to students and amateur scientists.

Tardigrades have survived exposure to outer space, a European Space Agency experiment has shown more than ten years ago. They are the first animals known to be able to survive the harsh combination of low pressure and intense radiation found in outer space. As to date, two species of dried-up tardigrades were launched from Kazakhstan in September 2007 aboard ESA’s Foton-M3 mission, which carried a variety of experimental payloads.

After ten days of exposure to outer space, the satellite returned to Earth. The tardigrades were retrieved and rehydrated to test how they reacted to the airless conditions in outer space, as well as ultraviolet radiation from the Sun, and charged particles from outer space called cosmic rays. The vacuum itself seemed to have little effect on the creatures. But ultraviolet radiation, which can damage cellular material and DNA, did take its toll.

In one of the two species tested, sixty-eight per cent of specimens that were shielded from higher-energy radiation from the Sun, were revived within thirty minutes of being rehydrated. Many of these tardigrades went on to lay eggs that successfully hatched. But only a handful of animals survived full exposure to the Sun’s UV light, which is more than one thousand times stronger in outer space than on the Earth’s surface. Before this experiment, only lichen and bacteria were known to be able to survive exposure to the combination of vacuum, and outer space radiation.

Tardigrades on the Moon

In August 2019, scientists reported that a capsule containing tardigrades in cryptobiotic state (all measurable metabolic processes stop, preventing reproduction, development, and repair) may have survived for a while on the Moon, after the April 2019 crash landing of Beresheet, a failed Israeli lunar lander.

It was just before midnight on April 11, 2019, and everyone at the Israel Aerospace Industries mission control centre in Yehud, Israel, had their eyes fixed on two large projector screens. On the left screen, was a stream of data being sent back to Earth by Beresheet, its lunar lander, which was about to become the first private spacecraft to land on the Moon. The right screen featured a crude animation of Beresheet firing its engines as it prepared for a soft landing in the Mare Serenitatis, or “Sea of Serenity”. But only seconds before the scheduled landing, the numbers on the left screen stopped. Mission control had lost contact with the spacecraft, and it crashed into the Moon shortly thereafter.

In the weeks following the Beresheet crash, Nova Spivack, the founder of the Arch Mission Foundation, a non-profit whose goal is to create “a backup of planet Earth”, pulled together the Arch Mission Foundation’s advisers in an attempt to determine whether the lunar library had survived the crash. Based on their analysis of the spacecraft’s trajectory, and the composition of the lunar library, Nova Spivack said he is quite confident that the library – a roughly DVD-sized object made of thin sheets of nickel – survived the crash mostly, or entirely intact. In fact, the decision to include DNA samples and tardigrades in the lunar library may have been key to its survival.

A few weeks before Nova Spivack had to deliver the lunar library to the Israelis, he had decided to include some DNA in the payload, and had added a thin layer of epoxy resin between each layer of nickel, a synthetic equivalent of the fossilised tree resin that preserves ancient insects. Into the resin had been tucked hair follicles, and blood samples from Nova Spivack and twenty-four others that had been said to represent a diverse genetic cross-section of human ancestry, in addition to some dehydrated tardigrades, and samples from major holy sites. A few thousand extra dehydrated tardigrades were sprinkled onto tape that was attached to the lunar library.

The promising thing about the tardigrades was that they could hypothetically be revived in the future. Tardigrades are known to enter dormant states in which all metabolic processes stop, and the water in their cells is replaced by a protein that effectively turns the cells into glass. Scientists have revived tardigrades that have spent up to ten years in this dehydrated state, although in some cases they may be able to survive much longer without water. Although the lunar library is designed to last for millions of years, scientists are just beginning to understand how tardigrades manage to survive in so many unforgiving environments. “It’s conceivable that as we learn more about tardigrades, we’ll discover ways to rehydrate them after much longer periods of dormancy”.

As a result, after the crash, “The payload may have been the only surviving thing from that mission” said Nova Spivack. In the best-case scenario, Beresheet ejected the Arch Mission Foundation’s lunar library during impact, and it lies in one piece somewhere near the crash site. But Nova Spivack says that even if the library broke into pieces, their analysis shows that these fragments would be large enough to retrieve most of the information in the first four layers. As for whether any of the DNA or tardigrades are still intact, that’s anyone’s guess, but Nova Spivack says there’s no reason to worry about water bears taking over the Moon. Any lunar tardigrades found by future humans will have to be brought back to Earth, or somewhere with an atmosphere, in order to rehydrate them. Whether this will be enough to bring them back to life, however, remains to be seen.

Space Legal Issues

Fortunately for Nova Spivack and the Arch Mission Foundation, spewing DNA and tardigrades across the Moon is totally legal. NASA’s Office of Planetary Protection classifies missions based on the likelihood that their targets are of interest to our understanding of life. As such, missions destined for places like Mars are subject to more stringent sterilisation processes than missions to the Moon, which has few of the necessary conditions for life, and isn’t at risk of contamination. In fact, Nova Spivack isn’t even the first to leave DNA on the Moon. This honour belongs to the Apollo astronauts, who left nearly one hundred bags of human faeces on the lunar surface, before they returned to Earth.

Let’s recall that the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967), states in its Article I that “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation”.

This article is very important since it establishes freedom of exploration and use of outer space, including the Moon. This means that states have the right to explore and use outer space, as well as the Moon and other celestial bodies. Since Beresheet was a private enterprise, some may argue that the Israelis had not the right to explore and use outer space. But Article VI of the aforementioned Outer Space Treaty notably stipulates that “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty”.

As a result, Israel could have been held responsible for any damages caused by the Israel-based private company (let’s add to this the fact that the Launching State, as defined by the 1972 Convention, was also the United States of America, since Beresheet was launched from Cape Canaveral, in Florida). Did Beresheet, which could have brought life (contaminated?) to the Moon, break any law?

Article IX of the 1967 Outer Space Treaty notably declares that “States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose”. The important passage is “so as to avoid their harmful contamination”. Did Beresheet harmfully contaminated the Moon? When the Magna Carta of space law was negotiated, states feared that the Moon could become a place where the United States of America and the U.S.S.R. would fight. I once heard that states where concerned in the mid-1960s that the U.S.S.R. would contaminate the Moon, so that the U.S.A. would not go there (and possibly create military bases), with radioactive waste. It would hence be difficult to hold the Israelis responsible for having left tardigrades in cryptobiotic state on the Moon.

Article IX of the 1967 Outer Space Treaty continues and adds that “If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, may request consultation concerning the activity or experiment”. Did Israel believe that tardigrades in cryptobiotic state on the Moon “would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies”? We don’t believe so.

As a result, when talking about tardigrades on the Moon, we believe that neither did Beresheet (and therefore Nova Spivack and the Arch Mission Foundation), nor Israel (responsible under Article VI of the OST), broke the law.

Public-private partnership contracts

For our two hundred and fiftieth Space Law article on Space Legal Issues, we have decided to concentrate on public-private partnership contracts. Public-private partnership contracts involve collaborations between government agencies, and private-sector companies, used to finance, build, and operate projects, such as public transportation networks, parks, and convention centres. Financing projects through public-private partnership contracts can allow projects to be completed sooner, or make them a possibility in the first place.

Recently, NASA has announced nineteen public-private partnership contracts to accelerate Moon and Mars programs. In the beginning of August 2019, the U.S. space agency announced nineteen partnerships with U.S.-based businesses to not only further its own goals, but those of businesses looking to embark on space adventures of their own.

The selected companies range from small businesses to massive aerospace corporations, yet all will be able to avail themselves of NASA’s expertise, facilities, hardware and software at no cost. The selections weren’t necessarily made based on specific needs that NASA has. It seems the intent of the partnerships is to advance the U.S. space sector as a whole, whether commercial or otherwise.

What are public-private partnerships?

There is no consensus about how to define a public-private partnership. The public-private partnership phrase can cover hundreds of different types of long term contracts, with a wide range of risk allocations, funding arrangements, and transparency requirements. The advancement of public-private partnerships, as a concept and a practice, is a product of the new public management, and globalisation pressures.

We could define a public-private partnership (sometimes referred to as “PPP”, “3P” or “P3”) as a cooperative arrangement between two or more public and private sectors, typically of a long-term nature. A public-private partnership typically involves a private entity financing, constructing, or managing a project, in return for a promised stream of payments directly from government, or indirectly from users over the projected life of the project, or some other specified period of time. They are primarily used for infrastructure provision, such as the building and equipping of schools, hospitals, transport systems, water or sewerage systems.

India has defined a public-private partnership as “a partnership between a public sector entity (sponsoring authority) and a private sector entity (a legal entity in which fifty one percent or more of equity is with the private partner/s), for the creation and/or management of infrastructure for public purpose, for a specified period of time (concession period), on commercial terms, and in which the private partner has been procured through a transparent and open procurement system”.

A city government, for example, might be heavily indebted and unable to undertake a capital-intensive building project, but a private enterprise might be interested in funding its construction in exchange for receiving the operating profits once the project is completed. Public-private partnerships typically have contract periods of twenty-five to thirty years or longer.

Financing comes partly from the private sector, but requires payments from the public sector and/or users over the project’s lifetime. The private partner participates in designing, completing, implementing, and funding the project, while the public partner focuses on defining and monitoring compliance with the objectives. Risks are distributed between the public and private partners according to the ability of each to assess, control, and cope with them.

Public-private partnership contracts

Public-private partnership contracts have been highly controversial as funding tools, largely over concerns that public return on investment is lower than returns for the private funder. It is closely related to concepts such as privatisation, and the contracting out of government services. The lack of a shared understanding of what public-private partnership contracts are, makes the process of evaluating whether public-private partnerships have been successful, complex.

When talking about public-private partnership contracts, one is referring to the contractual documents which govern the relationships between public and private parties to a public-private partnership. In practice, the public-private partnership contract may comprise more than one document. For example, a public-private partnership to design, build, finance, operate, and maintain a new power plant. Public-private partnership contract are at the centre of the partnership, defining the relationships between the parties, their respective rights and responsibilities, allocating risk, and providing mechanisms for dealing with changes.

Most public-private partnership projects present a contractual term between twenty and thirty years; others have shorter terms; and a few last longer than thirty years. The term should always be long enough for the private party to adopt a whole-life costing approach to project design, and service management, guaranteeing service performance at the lowest cost. The term depends on the type of project, and on policy considerations; the project should be needed over the term of the contract, the private party should be able to accept responsibility for service delivery over its term, and the procuring authority should be able to commit to the project for its term. The availability of finance, and its conditions, may also influence the term of the public-private partnership contract.

A well-designed contract is clear, comprehensive, and creates certainty for the contracting parties. Because public-private partnerships are long-term, risky, and complex, public-private partnership contracts are necessarily incomplete; that is, they cannot fully predict future conditions. This means the public-private partnership contract needs to have flexibility built in to enable changing circumstances to be dealt with as far as possible within the contract, rather than resulting in renegotiation or termination.

Some countries have made efforts to standardise elements of public-private partnership contracts so as to reduce the considerable time and cost frequently involved in preparing and finalising a given public-private partnership contract. They have developed standardised contractual provisions, or even complete standardised public-private partnership contracts. Public-private partnerships have been used in a wide range of sectors to procure different kinds of assets and services. In all cases, the public-private partnership project constitutes or contributes to the provision of public assets or services; and it involves long-life assets.

Towards Mars?

In August 2019, NASA selected ten U.S. companies for nineteen partnerships to mature industry-developed space technologies. As NASA prepares to land humans on the Moon by 2024 with the Artemis program, commercial companies are developing new technologies, working toward space ventures of their own, and looking to NASA for assistance.

NASA centres will partner with the companies, which range from small businesses with fewer than a dozen employees, to large aerospace organisations, to provide expertise, facilities, hardware and software at no cost. The partnerships aims to help advance the commercial space sector, and help bring new capabilities to market that could benefit future NASA missions.

NASA’s proven experience and unique facilities are helping commercial companies mature their technologies at a competitive pace” said NASA. “We’ve identified technology areas NASA needs for future missions, and these public-private partnerships will accelerate their development so we can implement them faster”.

Jus Cogens in international law

The jus cogens (from the Latin “biding law”, an imperative norm) concerns principles of law considered universal and superior, and which must constitute the bases of the imperative norms of general international law. This concept is similar to, but not totally consistent with, that of customary international law, which presupposes recognition and general effective application. Jus cogens obligations derive from the usual processes creating ordinary customary international law.

The 1969 Vienna Convention on the Law of Treaties stipulates in its Article 53 on “Treaties conflicting with a peremptory norm of general international law (“jus cogens”)” that “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”.

There is a striking similarity between this provision, and that of Art. 38, para. 1(b) of the ICJ Statute which states that “1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: international custom, as evidence of a general practice accepted as law;”. Art. 53, like Art. 38, para. 1(b), is interested, not in the law-creating process as such, but in the existence of law as a matter of fact. Stated more specifically, for Art. 53 the only relevant question is whether a rule of international law is jus cogens or not.

If a jus cogens status is conferred on a rule of law because the international community of states accepts and recognises this rule as non-derogable and modifiable only by the creation of a new norm of jus cogens, then the definition assumes what remains to be established: the creation of jus cogens. More than ever before international lawyers resort to jus cogens for the construction and reinforcement of legal arguments.

The definition of jus cogens

The 1969 Vienna Convention on the Law of Treaties stipulates in its Article 53 on “Treaties conflicting with a peremptory norm of general international law (“jus cogens”)” that “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”.

The 1969 Vienna Convention on the Law of Treaties stipulates in its Article 64 on the “Emergence of a new peremptory norm of general international law (“jus cogens”)” that “If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates”.

These are mandatory rules, whose respect is more imperatively required than mandatory standards. Thus, when the violation of a mandatory rule calls into question the responsibility of the State, the violation of an imperative rule entails the nullity of the contrary treaty (relative nullity). They are rules of general international law, with a universal vocation. There is no question of “regional” jus cogens in the 1969 Vienna Convention, even if admitted by some authors.

These are evolutionary rules. Norms of jus cogens not only impose principles in treaty negotiations, they also call into question treaties that were valid at the time of their entry into force. It is not only a condition of validity, but also a reason for termination. These are “accepted and recognized” rules as jus cogens by the international community of states as a whole: rules recognised and accepted as jus cogens (this is a process close to custom, jus cogens then constituting a hardened customary rule) by the Community of States as a whole (this formulation seems to exclude the fact that jus cogens is a direct manifestation of international law; it evokes a solidarity and unity of the International Society).

It could be argued that the recognition of the existence of rules of jus cogens constitutes a marked and remarkable return to the idea of “natural law”. These two notions are based on the same philosophical foundation: there are a number of fundamental rules related to universal consciousness, and inherent to the existence of any international society worthy of the name.

The 1969 Vienna Convention on the Law of Treaties notably stipulates in its Article 66 on “Procedures for judicial settlement, arbitration and conciliation” that “If, under paragraph 3 of article 65, no solution has been reached within a period of 12 months following the date on which the objection was raised, the following procedures shall be followed: (a) any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration;”.

For treaties between States, Article 66 of the Vienna Convention provides for the compulsory jurisdiction of the International Court of Justice, which may be referred to by unilateral application in the event of a dispute, unless the parties agree to resort to the arbitration. For treaties to which international organisations are parties, international organisations may participate in contentious proceedings before the ICJ.

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda)

On May 28, 2002, the Democratic Republic of the Congo (DRC) filed in the Registry of the Court an Application instituting proceedings against Rwanda for “massive, serious and flagrant violations of human rights and international humanitarian law” resulting “from acts of armed aggression perpetrated by Rwanda on the territory of the Democratic Republic of the Congo in flagrant breach of the sovereignty and territorial integrity [of the DRC], as guaranteed by the United Nations Charter and the Charter of the Organization of African Unity”.

In its Judgment of February 3, 2006, the Court ruled that it did not have jurisdiction to entertain the Application filed by the DRC. It found that the international instruments invoked by the DRC could not be relied on, either because Rwanda (1) was not a party to them (as in the case of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), or (2) had made reservations to them (as in the case of the Convention on the Prevention and Punishment of the Crime of Genocide and the Convention on the Elimination of All Forms of Racial Discrimination), or because (3) other preconditions for the seisin of the Court had not been satisfied (as in the case of the Convention on the Elimination of All Forms of Discrimination against Women, the Constitution of the WHO, the Constitution of UNESCO, and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation).

The principle of jus cogens is for the first time used by the ICJ: “The DRC further contended in its Application that Article 66 of the Vienna Convention on the Law of Treaties of 23 May 1969 established the jurisdiction of the Court to settle disputes arising from the violation of peremptory norms (jus cogens) in the area of human rights, as those norms were reflected in a number of international instruments”.

The Court then turns to the DRC’s argument that Rwanda’s reservation is invalid. In order to show that Rwanda’s reservation is invalid, the DRC maintains that the Genocide Convention has “the force of general law with respect to all States” including Rwanda, inasmuch as it contains norms of jus cogens. Rwanda observes inter alia that, although, as the DRC contends, the norms codified in the substantive provisions of the Genocide Convention have the status of jus cogens and create rights and obligations erga omnes, that does not in itself suffice to “confer jurisdiction on the Court with respect to a dispute concerning the application of those rights and obligations”.

Jurisdictional Immunities of the State (Germany v. Italy)

Between 2004 and 2008, Italian courts had issued a number of judgements in which plaintiffs, victims of war crimes and crimes against humanity committed by the German Reich during WWII, were awarded damages against Germany.

Ultimately, in 2008, Germany filed an application instituting proceedings against Italy before the International Court of Justice (ICJ), arguing that “in recent years, Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a sovereign State”, and thus violating international law. Italy disagreed, stating that the underlying acts were violations of jus cogens and therefore gave it the right to strip Germany from its immunity. Greece joined the proceedings as one of the Italian judgements concerned a declaration of enforceability by an Italian court of a Greek judgement that ordered Germany to pay compensation to victims of the Distomo massacre (in Greece). This declaration led to measures of constraint on German property in Italy.

The Court rejected Italy’s claims and fully agreed with Germany’s points. State immunity is part of customary international law, and the fact that the underlying acts (the WWII crimes) were violations of jus cogens did not deprive Germany from its jurisdictional immunity. Importantly, though, the Court notes that while the current judgement confirms jurisdictional immunity of states, this does not in any way alter the possibility to hold individuals criminally responsible for certain acts.

Space Insurance & Space Law

With the increasing privatisation of space activities, it has proved crucial to be able to accurately determine liability issues in these activities, but also to financially secure space projects. Outer space activity represents a high or even catastrophic risk environment, with a relatively high loss frequency. Effective insurance solutions are therefore crucial to the development of a profitable economic activity in outer space.

As a result, insurance has become a major topic in the conduct of space activities. Today, “Space Insurance”, which provides complete coverage of the risks to which a spacecraft is exposed during its lifecycle, should ideally cover the risks of pre-launch, launch, and operations in orbit (and soon in-orbit operations?), including the risk of damage to space assets, and the risk of liability claims.

Space insurance is governed, as all classes of insurance, by general insurance principles: mutualisation (the premium of the many pay for the claims of the few), fortuity (notion of random occurrence as opposed to prediction), indemnity (not to be richer after the loss than before), due intelligence (insurance should not alter the behaviour of the insured), and true and fair declaration of the risk.

Space insurance has some inherent features which makes it unique: mutualisation difficult to achieve (high severity, high frequency events, and high value), inaccessibility of the insured asset (impossibility to repair), insurance of the non-respect of the specifications, and different legal environment (for third party legal liability).

Introduction

Space has long been fantasised before becoming accessible. The first reaction when space law is evoked is to ask whether it is intended to govern relations with extraterrestrials. Space law in fact covers the activities happening in outer space, which are numerous. Space law undeniably has a universal character, like the law of the high seas and the seabed, or that of Antarctica.

It is from this universal character that we can summarise the fundamental principles of space law as follows. On the one hand, a refusal to apply the principle of sovereignty to outer space, a principle that some states have tried in vain to defeat. On the other hand, a principle of freedom of space activities. This second principle includes free access to space regions beyond the airspace of states, and freedom of exploration and use of outer space. Finally, a principle of allocation of space to the whole of humanity.

We must remember that the space conquest began with a rivalry. At the time of the Cold War, the U.S.S.R. and the United States of America sought the place of the world’s leading power. Mastering the outer space environment provided them with a good way of spreading their supremacy across borders. It was therefore necessary to create laws (public international law) for this nascent activity, originally developed by states and their army.

Subsequently, private companies were able to access the areas of satellite design and launch. And the legal framework has expanded to include new players, in a high value-added transport trade. More recently, low cost and tourist flights have been successful, forcing established institutions in the sector to revise their business model.

Understanding Space Insurance

The five Onusian treaties have put in place a specific legal regime applicable to outer space. It follows from this legal regime that states, considered as “launching states” under the treaties, support an obligation to register space objects. First, it imposes on launching states an obligation to register space objects to determine the nature and origin of an object launched in outer space, but also to know the state that will bear international responsibility attached to this space object. In the absence of registration, the launching state will not be able to benefit from the provisions of space law and general public international law will have to be applied.

As far as liability is concerned, it covers two meanings. First of all, there is a liability for damage to third parties caused by a space operation. The regime of this responsibility is detailed by the 1972 Liability Convention. This liability is qualified as “absolute” when damage is caused on land or in airspace, the victim is thus exempted from showing the fault of the (launching) state, and has just to prove that a damage was caused by a space object. The objective here is to facilitate victims’ recourse against a launching state. On the other hand, liability is said to be “for fault” where damage occurs in outer space.

The second responsibility borne by the launching states is a responsibility for monitoring, surveillance and verification of the space activity under its international responsibility. Thus, the launching state must verify that the activity in question is in conformity with international law, from a technical and legal point of view.

National regulations have intervened to manage private and commercial space activities. The 1970s and (especially) 1980s saw the rise of private and commercial space activities, including the creation of private launch companies to provide launch services to private commercial satellite operators. As a result, space law had to adapt to these new and purely private activities. The United States of America was the first state to adopt legislation dedicated to space activities conducted by private U.S. enforcement entities (Commercial Space Launch Act of 1984, amended several times). Other states, such as Great Britain (Outer Space Act 1986), quickly followed. It was not until 2008 that France adopted a specific legislation for space activities, with the LOI du 3 juin 2008 relative aux opérations spatiales.

These national laws have different fields of application, but have in common that they regulate the activities of private entities falling under the application of these laws through authorisation or licensing. States bear international responsibility under international treaties for the space activities of their private entities, so it is imperative for them to authorise, control and monitor private space activities.

In addition to the regime of public international law and national law, it should be added that the space sector is the subject of specific contractual practices adapted to the specific nature of this sector. The purpose of these practices is to protect the space industry and to avoid litigation in jurisdictions. Thus, the contracts concluded between the different space actors (launching agency, satellite operator, satellite manufacturer, subcontractors, suppliers, etc.) try to limit the responsibilities between the parties, by applying clauses intended to allocate responsibilities, and avoid recourse between the parties.

Traditionally, one of the most impacted clauses along the entire chain of contract is the “waiver of recourse” clause, which is systematically provided for in launch service contracts. These waiver of recourse clauses are written to be mutually enforceable, that is, none of the contractors will be able to turn against each other because of the damage caused to them by space activity. These clauses are usually supplemented by “guarantee pacts” granted by the launching agency to the entire contractual chain linked to the launcher, in the event of damage caused to third parties as a result of the launching operation.

In general, and depending on the law applicable to the contract, the exceptions to these waiver of recourse clauses and guarantee pacts are “gross negligence” or “intentional misconduct”, with all the difficulties related to the interpretation of these concepts, and to the modes of proof. It should be noted here that with regard to satellite contracts, clauses allowing recourse between contractors are increasingly present. In fact, waiver of recourse clauses are in some legislation mandatory for launching activities, such as the U.S. Commercial Space Launch Act, or the LOI du 3 juin 2008 relative aux opérations spatiales. They become optional for contracts relating to satellite activities.

How do Space Insurances work?

Insurance is defined by the Oxford English Dictionary as “An arrangement by which a company or the state undertakes to provide a guarantee of compensation for specified loss, damage, illness, or death in return for payment of a specified premium”. It is also defined as “The business of providing insurance”, “Money paid for insurance”, or “Money paid out as compensation under an insurance policy”.

While the insurance market has developed a long and rich experience in other sectors, such as land, sea or air transport, the specificities of space activities have involved implementing substantial adaptations to traditional insurance, or even introduce new insurance practices.

To run a space project, there are a number of actors involved. These actors bear risks that are unique to them. Thus, for the various phases of risks, including manufacturing, storage, transportation, launch, and satellite operations, there are responsibilities identified and specific for each actor. These responsibilities are associated with insurance solutions, which have in some cases been specifically set up for these particular risks.

The development of space insurance has coincided with the privatisation and commercial development of satellite launch and operation activities. This development concerns not only damage insurance for satellites or launchers, on the ground or in outer space, but also liability insurance for space operators, manufacturers, equipment manufacturers, suppliers, etc. In general, it can be said that there are two main categories of space insurance: damage insurance for space assets, and liability insurance.

Damage insurance for space assets

Traditionally, in the context of damage insurance for space assets, three risk phases are to be counted: on the ground, during launch and during life in orbit. For these risk phases, policyholders, risks, guarantees, and insurers will not be the same. On the ground, the satellites, but also the launchers, are insured during the phases of assembly, integration, test, transport, and on the launching site, against the risks of damage because of external causes (falls, clashes, fire, etc.). Generally, these insurances are underwritten by “Marine Cargo” insurers.

From the launch (when the launch is said to be irreversible), the “launch insurance policies” take over from the “ground insurances”. During this phase, only satellites are covered; launchers are not directly insured. However, it should be noted that the launching agencies offer their clients “Launch Risk Guarantees”, allowing, in case of failure to launch, a new relaunch or financial compensation. These LRGs may be covered by specific insurance policies. During the orbiting phase of space objects, satellites, and mainly commercial satellites, can be covered from the end of the launch to the end of their contractual life.

The duration of damage warranties varies from a few days, to one year or several years. For launch and operation phases in orbit, satellites are insured for any total, partial or deemed total loss. These damage policies are designed to guarantee, according to the loss formulas provided for in these policies, the loss of control, destruction, impossibility of reaching the specified orbit, but also the cases of reduction of the operational capacity or the life of the satellite, occurring during the warranty period.

In principle, launch and life in orbit policies cover all risks, which is why they are called “all risk policies except”. Thus, only the exclusions specifically indicated in the policy may be invoked by insurers in order to defeat the guarantee. It will therefore be up to insurers to prove that an exclusion applies. These damage insurance for space assets are now well mastered, but they require adaptation to new technologies and new projects under development, such as, for example, satellite constellations or new launchers.

Liability insurance

Satellite launch and satellite operations include a high degree of risk of liability for third party damage resulting from the intended space activity. As such, the risks associated with the launch and the potential for damage to Earth from the return of the launcher stages, were the first concerns of the international community, which led to the drafting and ratification of the 1967 Outer Space Treaty and the 1972 Liability Convention, dealing in particular with the liability/responsibility of launching states for damage caused by space objects. In addition to these texts, certain states, which can be qualified as launching states under the 1972 Liability Convention, and therefore bear responsibility, have decided to legislate on this subject and certain national laws now require space operators to insure themselves for the risks involved.

The liability insurance policies must therefore respond to possible liability claims, not only under the liability regime provided for in the international treaties and particularly the 1972 Liability Convention, but also under existing national legislation. Schematically, there are two main categories of civil liability for participants in a space operation: civil liability related to the operation of spacecraft, and civil liability for space products. The latter is underwritten by manufacturers, equipment manufacturers, and suppliers, in case of damage caused to a third party due to a defect of the product after delivery.

These two categories of liability can today be covered under certain conditions. Space liability insurance covers the financial consequences of the liability of an insured person for damage caused to a third party by a space activity. These guarantees are available, in the current state of the market, up to five hundred million American dollars, or even seven hundred and fifty million American dollars for certain risks. Typically, policyholders are the launching agencies for the launch phase, and satellite operators for the in-orbit phase of life, given that, traditionally, launching states are additional insured, which means that launch will benefit from the coverage (in the amount, conditions and exclusions of the guarantee) in the event of a blame for their liability.

All participants in the launch operation are also generally covered for liability under the liability policies for spacecraft (including the manufacturers of the launcher and the satellite, and all of their subcontractors and suppliers at whatever level they are). The same is often true in liability policies in orbit. The limits of guarantee vary according to the legal provisions if they exist, or according to the apprehension of the risk by the operators. The premium associated with this risk is determined by the insurers after an exposure analysis based on various elements related to the activity to be insured, such as the launch site used, the launch trajectory, backup and security procedures, launch history, launch agency experience, satellite technical details, orbital positioning, planned movements, etc.

Concluding remarks on Space Insurance

The space insurance market will soon have to face a new trend as space activity is on the brink of intensification, mainly due to the arrival of new players promoting a genuine paradigm shift. Insurers must therefore anticipate these developments in order to be able to assess the associated risks. For example, they will need to learn how to assess the risks specific to mega-constellations of satellites, particularly those related to increased congestion, the intensification of launches, the development of multiple launchers, and the complexity of the tests to which these super-satellite networks must be subjected.

Space insurance is governed, as all classes of insurance, by general insurance principles: mutualisation (the premium of the many pay for the claims of the few), fortuity (notion of random occurrence as opposed to prediction), indemnity (not to be richer after the loss than before), due intelligence (insurance should not alter the behaviour of the insured), and true and fair declaration of the risk.

Space insurance has some inherent features which makes it unique: mutualisation difficult to achieve (high severity, high frequency events, and high value), inaccessibility of the insured asset (impossibility to repair), insurance of the non-respect of the specifications, and different legal environment (for third party legal liability).

Declaration on International Cooperation and the Needs of Developing Countries

The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, adopted in 1996 (General Assembly Resolution 51/122), recognises the importance of international cooperation in the exploration and use of outer space for the benefit and interest of all states, in particular the needs of developing countries.

At its 1996/1997 session, the United Nations General Assembly adopted by consensus Resolution 51/122, containing a Declaration on international cooperation in space. This Declaration finalises the agenda item which has become known as “Space Benefits” in the UNCOPUOS Legal Subcommittee. It provides an authoritative interpretation of the cooperation principle in Article I of the Outer Space Treaty and should thereby put an end to North-South confrontation over the question of shaping the international order for space activities.

How is this Resolution shaped?

Let’s recall that Article I of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967) states that “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation”.

The Resolution we are analysing for this new Space Law article on Space Legal Issues provides that international cooperation among states must be conducted in accordance with the provisions of international law for the benefit and in the interest of all states, irrespective of their degree of economic, social or scientific and technological development where particular account should be taken of the needs of developing countries.

States with space capabilities and programs should contribute to promoting and fostering international cooperation on an equitable and mutually acceptable basis and particular attention should be given to the developing countries.

Does this Resolution provides for international cooperation? Yes, on the manner as to how international cooperation should be conducted, it is provided that it has to be conducted in the manner that is considered most effective and appropriate by the countries concerned.

While taking into particular account the needs of developing countries, international cooperation should aim at achieving these three goals: firstly, promoting the development of space science and technology and of its applications, secondly, fostering the development of relevant and appropriate space capabilities in interested states; and thirdly, facilitating the exchange of expertise and technology among states on a mutually acceptable basis.

Are General Assembly Resolutions legally binding?

A United Nations Resolution (UN Resolution) is a formal text adopted by a United Nations (UN) body. Although any UN body can issue resolutions, in practice, most resolutions are issued by the Security Council (one of the six principal organs of the United Nations charged with ensuring international peace and security, accepting new members to the United Nations, and approving any changes to its charter) or the General Assembly (one of the six principal organs of the United Nations (UN), the only one in which all member nations have equal representation, and the main deliberative, policy-making, and representative organ of the UN).

Most experts consider most General Assembly resolutions to be non-binding. Articles 10 and 14 of the UN Charter refer to General Assembly resolutions as “recommendations”; the recommendatory nature of General Assembly resolutions has repeatedly been stressed by the International Court of Justice. However, some General Assembly resolutions dealing with matters internal to the United Nations, such as budgetary decisions or instructions to lower-ranking organs, are clearly binding on their addressees.

The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries

Among all paragraphs contained in the Preamble of the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, let’s note that the UN General Assembly is “Convinced of the necessity and the significance of further strengthening international cooperation in order to reach a broad and efficient collaboration in this field for the mutual benefit and in the interest of all parties involved” and “Desirous of facilitating the application of the principle that the exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind”.

Paragraph 1 of the Annex of the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, notably states that “Particular account should be taken of the needs of developing countries” while restating the main principles of Article 1 of the 1967 Outer Space Treaty.

Paragraph 2 of the aforementioned Resolution adds that “States are free to determine all aspects of their participation in international cooperation in the exploration and use of outer space on an equitable and mutually acceptable basis. Contractual terms in such cooperative ventures should be fair and reasonable and they should be in full compliance with the legitimate rights and interests of the parties concerned as, for example, with intellectual property rights”.

Paragraph 3 develops that idea by declaring that “All States, particularly those with relevant space capabilities and with programmes for the exploration and use of outer space, should contribute to promoting and fostering international cooperation on an equitable and mutually acceptable basis. In this context, particular attention should be given to the benefit for and the interests of developing countries and countries with incipient space programmes stemming from such international cooperation conducted with countries with more advanced space capabilities”.

Paragraph 4 announces that “International cooperation should be conducted in the modes that are considered most effective and appropriate by the countries concerned, including, inter alia, governmental and non-governmental; commercial and non-commercial; global, multilateral, regional or bilateral; and international cooperation among countries in all levels of development”.

Paragraph 5 declares that “International cooperation, while taking into particular account the needs of developing countries, should aim, inter alia, at the following goals, considering their need for technical assistance and rational and efficient allocation of financial and technical resources: (a) Promoting the development of space science and technology and of its applications; (b) Fostering the development of relevant and appropriate space capabilities in interested States; (c) Facilitating the exchange of expertise and technology among States on a mutually acceptable basis”. These are the three goals international cooperation should aim at achieving.

These are the most important principles contained in the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries.

Can Space Law apply on Earth?

Can Space Law apply on Earth? When I tell people about my interest in Space Law, they are usually surprised. They ask me what is Space Law and I try to give a simple definition. Recently, I have asked myself if Space Law could apply on Earth and the answer is of course: yes!

In this new Space Legal Issues article, let’s study the case of Space Law applying on Earth; we will exclusively focus on the Magna Carta of Space Law, what is at the basis of what is called corpus juris spatialis: the 1967 Outer Space Treaty, or “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”.

What is Space Law?

Space Law is the body of laws, agreements and treaties that govern outer space. Worldwide leaders must grapple with how to regulate activity in space. Space Law covers issues like rules for exploration, weapons use, and damage for liability, rescue efforts for astronauts in distress, environmental regulations, and records of space activity.

Space lawyers draft international treaties and national laws. They advise lawmakers about good policy and whether to enter international agreements. Space lawyers may even help negotiate these agreements. They help government entities and even private companies engaging in space exploration comply with existing laws and treaties.

Because of the nature of space law, space lawyers engage in a great deal of policy making. They might spend the bulk of their time drafting proposals or advocating for certain policies. Space lawyers must also understand enough science to give their clients educated advice.

The Outer Space Treaty

On December 19, 1966, the United Nations unanimously adopted a treaty, opened for signature on January 27, 1967, declaring that the exploration and use of outer space must be carried out in the interest and for the good of humanity, any discrimination between States being excluded. Outer space, including the Moon and other celestial bodies, will be free and accessible to all States and cannot be the subject of national ownership. Adopting these basic principles, it establishes that any action by States in outer space must be in accordance with international law (including the Charter of the United Nations of 1945, the foundational treaty of the United Nations) not only in the interest of maintaining international peace and security, but also to foster international cooperation and understanding.

Among the broad general principles that should govern the space activities of States, the use of outer space for peaceful purposes, mentioned in the Preamble to the Outer Space Treaty and in several of its provisions, has been in fact, several times since 1957, stated in previous General Assembly resolutions of the United Nations (in 1957, 1958, 1959, and more particularly in 1961). Already, the signing of the Moscow Treaty in 1963, prohibiting nuclear experiments in the air, water and space, represented an important relaxation with regard to the political relations between the U.S.S.R. and the United States of America. The desire for co-operation has also been reflected in other events such as the agreement of 1962, reiterated in 1963 between the U.S.S.R. and the United States of America for the peaceful co-operation in the fields of meteorological satellites, telecommunications and the establishment of magnetic field maps. As a result, two important resolutions were adopted by the U.N. General Assembly in 1962 and 1963.

The result of this spirit of cooperation was also reflected in the same year by the adoption by the General Assembly of the United Nations of an important resolution on the question of disarmament general and complete (1963). In this resolution, the General Assembly refers to a previous resolution of 1961 and emphasizes its decision to take measures to prevent the arms race from spreading to outer space. It is the famous resolution “no bombs in orbit”.

In 1965, the United States of America delegation to the United Nations declared that “before the human beings Moon landed, the U.N. should set forth international rules governing the exploration of celestial bodies”. Before the opening of negotiations on the Outer Space Treaty, the United States of America was already thinking more about a treaty on celestial bodies, than a specific convention on outer space. It is in this sense that on May 7, 1966, President Johnson emphasized the need for immediate action “to ensure that the exploration of the Moon and other celestial bodies serves only peaceful purposes” and “to be sure that our astronauts and those of other countries will be able freely to proceed to the scientific study of the Moon”. The President of the United States of America suggested that the United Nations adopt a treaty governing the exploration of the Moon and other celestial bodies and, among the principles retained for inclusion in this treaty, it was intended that “no country should be allowed to place weapons of mass destruction on a celestial body” and that “weapons tests and military manoeuvres should be prohibited”.

Animated by the same concern, to “take practical steps towards the conquest of the Moon and other celestial bodies and, first and foremost, adopt provisions to prohibit the use of the Moon and other celestial bodies for military activities”, the U.S.S.R. also tabled a draft treaty on “the legal principles to govern the activity of states in the field of exploration and conquest of the moon and other celestial bodies”, which, with respect to military uses, contained the following provisions: “All states must use the Moon and other celestial bodies exclusively for peaceful purposes. The Moon and other celestial bodies shall not be constructed with military bases or installations, including facilities containing nuclear weapons or other types of weapons of mass destruction”. Thus, from 1965 to 1966, the two Great Spatial Powers agreed on a number of principles to govern the activities of States, mainly on the Moon and other celestial bodies.

The Outer Space Treaty (1967), concluded within an extremely short period of time (six months), was in fact a bilateral agreement between the two Great Spatial Forces and then imposed on the other States that were not materially prepared and at the time, did not master the technical data. This is an important historical fact that should be kept in mind.

Can Space Law apply on Earth?

Paragraph 1 of Article I of the Outer Space Treaty states that “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind”. This first paragraph is pretty clear: outer space, whether it is for exploration or use (utilisation?), shall be carried out for the benefit and in the interest of countries. Considering the fact that countries only exist today on Earth, that the International Space Station (ISS) is not a country but an intergovernmental cooperation, Space Law applies on Earth.

Paragraph 2 of Article I of the Outer Space Treaty adds that “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies”. Again, a reference is made to States, which for now, only exist on Earth.

We should add that projects such as Asgardia, also known as the Space Kingdom of Asgardia, a micronation formed by a group of people who have launched a satellite into Earth orbit (the Asgardians have adopted a constitution and intend to access outer space free of the control of existing nations), are not States, since certain criteria are not respected: 1) a defined territory; 2) a permanent population; 3) a government; and 4) a capacity to enter into relations with other States.

Paragraph 3 of Article I of the Outer Space Treaty concludes that “There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation”. Again, States appear to be the main actors of activities conducted in outer space.

Article V of the Outer Space Treaty declares that “States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle”. What happens if an astronaut lands on the territory of a State or on the high seas? The State of registry of their space vehicle can ask that those “envoys of mankind” shall be safely and promptly returned. This means that Article V of the OST can be invoked while on Earth, for a situation that is happening on Earth. Space Law could be used against a State (like North Korea for example), on Earth, if that particular State (North Korea) was to refuse to safely and promptly return the astronauts to the State of registry of their space vehicle (the United States of America for example).

Article VII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies announces that “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies”.

Let’s imagine that State A was to launch an object in outer space and that an accident was to happen on the launch pad (like it happened in Brazil in 2003: the 2003 Alcântara VLS accident); scientists from State B (working on the object that was about to be launched) are killed, and houses and facilities from State C are damaged (like it happened in China in 1996: the Long March 3B rocket failed while being launched from the Xichang Satellite Launch Center in China, and the rocket veered off course immediately after lift-off and struck a nearby village, killing at least six people). Space Law would apply, and Article VII of the Outer Space Treaty could be used by States B and C against State A; this would be a Space Law case applying on Earth.

Can Space Law apply on Earth? Article VIII of the founding principles of Space Law notably enounces that “Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return”. What if France was to refuse to return the part of the SpaceX capsule that was found on the foreshore of a French island in Britany? Space Law could be invoked and the United States of America could act against France on the basis of Article VIII of the Outer Space Treaty (Space Law) even though the component has never left the Earth. Space Law would apply on Earth.

Article IX of the aforementioned Treaty notably states that “States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose”. What if Neil A. Armstrong, Edwin E. Aldrin Jr., and Michael Collins had infected the Earth after coming back from their mission? Space Law would have apply, even though “appropriate measures for this purpose” should have been defined by the United Nations.

Can Space Law apply on Earth? Concluding remarks!

Can Space Law apply on Earth? Among all the aforementioned articles, Article VII of the Outer Space Treaty, regarding the application of Space Law on Earth, is the most important one. A State can be internationally liable for damages caused by objects intended to be launched in outer space, even though those objects have never left Earth. What would be interesting is to think about the definition of launching or procuring the launching of an object into outer space.