Nicolas Giacomin

The history of the Conestoga rocket

The Conestoga was a rocket consisting originally of surplus Minuteman missile stages with additional strap-on boosters, as required, for larger payloads. It was the world’s first privately-funded commercial rocket, but was used only three times (one as a modified design) before the program was shut down due to a lack of business.

History of the Conestoga rocket

Conestoga was funded by Space Services Inc. of America (SSIA) in Houston, Texas. They had originally intended to use a design by Gary Hudson, Percheron, which was intended to dramatically lower the price of space launches. Key to the design was a simple pressure-fed kerosene-oxidizer engine that was intended to reduce the costs associated with “throwing away” the booster. Various loads could be accommodated by clustering the basic modules together. SSIA conducted an engine test firing of the Percheron from Matagorda Island on August 5, 1981, but the rocket exploded on the pad due to a malfunction. SSIA then parted ways with Hudson.

SSIA founder David Hannah then hired Deke Slayton, one of the original Mercury Seven astronauts. Slayton had just left NASA after running (among earlier roles) the Space Shuttle Landing and Approach validation testing. They came up with an entire new design based on clustering engines from the second stage of the Minuteman missile. The first launch of the new Conestoga I design took place on September 9, 1982, consisting of the core missile stage and a five hundred kilograms dummy payload which included forty gallons of water. The payload was successfully ejected at three hundred and thirteen kilometers, and the Conestoga I became the first privately funded rocket to reach space.

SSIA launched a second rocket in 1989, turning to commercial support for microgravity experiments, using the Black Brant sounding rocket which they referred to as “Starfire”.

SSIA was purchased by EER Systems in December 1990. The design was modified again, this time using the Castor engines originally used on the Scout, a workhorse of the 1960s. The new design was known as the Conestoga 1620, or by other numbers depending on the number and arrangement of the boosters.

The COMET program

In May 1990, the Center for Space Transportation and Applied Research (CSTAR), at the University of Tennessee in Tullahoma, a university entity operating as a NASA Commercial Center for the Development of Space (CCDS), proposed COMET to the NASA Office of Commercial Programs. CSTAR proposed to procure three COMET missions for NASA for about eighty-five million American dollars spread over five years. The focus of the COMET program was on jump-starting the incipient space-based materials processing industry. The COMET spacecraft would carry microgravity experiments into low Earth orbit (LEO) for a month, then parachute test samples back to Earth in a reusable, recoverable module. Another portion of the spacecraft, the service module, would be left in orbit for two to four years. Rides on the COMET promised to be longer and better than those aboard either the Space Shuttle or a sounding rocket.

CSTAR’s role in the COMET program was to provide general oversight. The prime contractors for COMET were the Space Division of Westinghouse Electric Corporation, in Baltimore, which supplied the service module; Space Industries, Inc. of League City, Texas, which provided the recovery module; and EER Systems Corp. of Vienna, Va., which furnished the Conestoga launch vehicle. Space Industries, Inc., also was to contribute payload integration, orbital operations, and the recovery system. Westinghouse’s Commercial & Civil Space Department was hoping to sell COMET services to commercial customers under the business name Westinghouse Space Transportation and Recovery (Westar).

The Conestoga rocket was a new launch vehicle, and the launching of COMET would mark its debut. While employed by Space Services Inc. (SSI) of Houston, Texas, Donald K. “Deke” Slayton, one of the original seven Mercury astronauts, thought up the concept of a multiple-stage rocket consisting of a core motor with additional motors strapped around it, the number of additional motors depending on the size of the payload. This was the Conestoga rocket. When EER bought SSI, they acquired the Conestoga design, as well as Deke Slayton, who came to EER as Director of the Space Services Division.

It did not take long before it became obvious to NASA that the COMET program was in trouble, and as early as February 1992, COMET problems aired in the press following a major design review completed January 22, 1992. One serious problem was a launch delay arising from the late delivery of rocket motors by the Thiokol Corporation of Ogden, Utah. NASA, however, felt that the problems went deeper. CSTAR was not performing competently as project manager, incapable of handling such a complex engineering effort and causing repeated schedule delays. NASA further was troubled by the project’s mushrooming costs, which had ballooned to an estimated one hundred and fifty-eight million American dollars for three missions. As a result, COMET was reduced from a three-mission to a single-mission program with a budget of 65.8 million American dollars, instead of eighty-five million American dollars for three missions. By January 1994, the relationship between NASA and CSTAR had reached bottom, as NASA announced plans to phase out CSTAR and five other Commercial Centers for the Development of Space. The termination of CSTAR raised several major questions about COMET’s future, especially who would run the COMET program.

Launch failure

The entire COMET program quickly ran into delays and budget overruns, and it was not until the end of the program that a COMET (now known as METEOR) and Conestoga 1620 were finally ready for launch. The satellite payload included a number of experiments, including materials (evaluate exposure to the caustic space environment), biological (assessment of seed reaction in micro-gravity; growth fluids were to be injected to the seed containers after launch), as well as GPS/radar correlation tracking. The satellite included a recoverable section that was to separate on command after several weeks on orbit, fire a small internal retro-motor, and descend for a recovery off the Virginia coast.

The launch took place from the a special clamshell gantry, which included power and environmental controls, at the south end of Wallops Flight Facility on October 23, 1995; the rocket launched normally, but broke up in-flight forty-six seconds later EER concluded that an unknown source of low frequency noise caused the guidance system to order course corrections when none were needed, eventually causing the steering mechanism to run out of hydraulic fluid. An earlier NASA review had already decided to refuse further funding due to the original delays, and EER subsequently got out of the rocket business. It was purchased by L-3 Communications in 2001 for one hundred and ten million American dollars.

Understanding the South African Space Policy

This document aims to provide guidance to all South African space actors. All actors in private and public sectors in the space field. These orientations go through the support and promotion of scientific research, capacity building, innovation and industrial development. The purpose of this is to use the outer space for the purposes of economic growth, poverty reduction and the creation of growth for the country.

This law seeks to strategically regulate all space activities in South Africa. All private or public entities that are part of the space sector are subject to it. The Minister of the Department of Commerce and Industry (DTI) is mandated to determine the general policy of space affairs to be followed by the Republic (art. 2). It may determine policy after consultation with the South African Council for Outer Space Affairs, with the consent of other ministers responsible for law enforcement relating to space affairs. The South African Minister of Finance is included.

A variety of services and applications, such as communications, navigation, meteorology, natural resource management, environmental monitoring, and natural disaster management depend on space systems. During the last three decades, space technology has found an increasing application in everyday life, to the point of making space applications indispensable to the modern information society.

The public space sector in South Africa is made up of government departments and their agencies, as well as the National Space Agency. They all have independent administrations with their own policy frameworks, frameworks that serve to guide decisions on the continuation and funding of space activities. Due to South Africa’s growing dependence on space technology and its participation in international scientific activities related to space, there is a need for it to have a more coordinated and strategic approach to space activities as a whole.

Policy statement

As said above, South Africa has a variety of institutions and programs that play an important role in the scientific study, exploration and use of outer space. Scientific councils, national facilities, universities, government departments and industry, have extensive expertise in satellite applications and engineering, space science, and their supporting technologies. However, not all of these activities are carried out in a coordinated manner. They are managed by different administrations. This poses challenges for a coherent strategic direction.

In order to maximize the benefits of space science and technology for sustainable development, South Africa needs a guiding framework in the form of a policy, and a central institutional framework (an agency). This agency aims to rationalize spatial development. This will go through coordination and cooperative governance, but also through partnerships with other space nations in areas of shared interest.

Policy principles

The fundamental principle of the continuation of space activities in South Africa is the contribution to the economic growth and social development of the country. There are 6 main principles mentioned by the law:

1) South Africa is committed to utilizing outer space for peaceful purposes and the benefit of all humankind.

2) South Africa is committed to developing and maintaining a robust and appropriate set of space capabilities, services and products to support national priorities through co-ordination and co-operative governance.

3) South Africa is committed to being a responsible user of the space environment and will ensure that all public and private sector activities are conducted in accordance with national legislation and appropriate international best practices, in addition to relevant international treaties.

4) South Africa is committed to promoting research and development in space science and technology.

5) South Africa is committed to fostering the development of the domestic industry towards greater levels of national self-sufficiency and international competitiveness in space technology, and its applications through utilizing domestic commercial space capabilities and services to the maximum extent possible.

6) South Africa is committed to co-operation with strategic nations in mutually beneficial and peaceful uses of outer space, with a focus on extending the benefits of space technology to the African continent through the pursuit of co-operative activities with African countries“.

Policy objectives

The objectives of this policy are as follows:

Improve co-ordination throughout the South African space arena to maximize the benefits of current and planned space activities, avoid or minimize duplication of resources and efforts, and organize existing initiatives, programs and institutions into a coherent network for all providers and users of space systems

Promote capacity-building initiatives, both as a means towards effective participation in the space arena, as well as to develop capacity in space science and technology, and science and technology in general.

Facilitate the provision of appropriate and adequate space capabilities to support South Africa’s domestic and foreign policy objectives.

Foster a robust science and technology base in research institutions and the higher education sector.

Promote the creation and implementation of a supportive regulatory environment to facilitate industrial participation in the space arena, in accordance with domestic law and South Africa’s foreign policy objectives and international obligations.

Promote the development of an appropriate and competitive domestic commercial space sector in order to provide the industrial base to meet the nation’s needs for space technology.

Promote improved co-operation with other nations in the mutually beneficial peaceful uses of outer space.

Promote greater awareness and appreciation, at all levels of South African society, of the relevance and benefits of space science and technology“.

General implementation Guidelines

Cooperative governance (art. 7.1)

The lead department for policy and regulatory aspects of space activities is DTI, supported by the South African Council for Outer Space Affairs, and multilateral agreements. DTI is also responsible for the development of an industrial space framework to guide industrial development to enable South African industry to thrive. Finally, the DTI liaises with other government departments responsible for administering acts relating to space activities, services and products.

The lead department for the implementation of the national space program is the DST (Department of Science and Technology). It is in this department that the national space agency resides. The Ministry of Communication takes the lead in matters relating to the communication of the national space program and the Ministry of Foreign Affairs supports and facilitates international cooperation activities related to space.

Finally, the national treasury plays a key role in allocating financial resources for the implementation of space policy by the various departments. Long-term strategic development requires a significant commitment supported by substantial financial resources.

To facilitate the improvement of coordination governance and cooperation, two key points are mentioned (arts. 7.1.1 and 7.1.2):

1) Increase Intra-Government and Inter-Agency Cooperation;

2) Optimize the Use of Resources.

Developing Adequate Space Capabilities (art. 7.2)

It is determined by government requirements in scientific, technical and industrial fields. The strategic analysis of national imperatives makes it possible to draw future requirements as defined in article 7.2.1.1:

1) Manufacturing Capability;

2) Economic Enabling of Space Technology;

3) Space Science and Technology Research Capability;

4) Build Human Capital.

Strengthening the Space Science and Technology Base (art. 7.3)

To support South African space capabilities, a science and technology base is essential. Research and development activities in the field constitute a cornerstone on which the national space program is based. In particular, publicly funded research and development activities support further knowledge creation, as well as new and improved space capabilities.

The existing capacities of scientific councils, national research facilities must be used to the maximum within the framework of the national space program. The strength of the system is the academic research community. Research institutes and tertiary level institutions ensure students’ exposure to space science and technology. This aims to help build the capacity of this policy.

Developing and Fostering National Space Infrastructure (art. 7.4)

For the development of the economy, a modern infrastructure is essential. It is therefore planned to develop and promote an appropriate infrastructure in South Africa. The country already has an infrastructure for ground segment operations of space systems and several facilities for assembly, testing and integration of satellites. The country also has facilities to support flight test and space launch activities. The law intends to encourage major investments to be made in this area.

Promoting a Domestic Space Industry (art. 7.5)

For South Africa to develop and maintain appropriate space capabilities, a robust space industry is essential. This goes through several key points:

1) Development of an Industrial Framework;

2) Building Capacity in the Domestic Industry;

3) Creating the Right Regulatory Environment for National Space Activities;

4) Managing Innovation and Technology Transfer to and from the Space Sector;

5) Promoting the Competitiveness of the Industry.

Promoting Enhanced Space Awareness at all Levels (art. 7.6)

Broad public support for a publicly funded South African space program is based on an appreciation and understanding of the benefits of space science and technology at all levels. The Outer Space Affairs Law mandates the Outer Space Council to promote space awareness and provide the public with appropriate information on its activities. For this reason, the Outer Space Council, government departments and their agencies undertaking activities in space science and technology should work in a sustained and integrated effort to communicate to all levels of society how public resources are used by the space sector for the public good. Private sector participants in publicly funded space activities should align a component of their activities in support of this goal. All stakeholders can achieve this maximum collective impact by jointly participating in nationally or internationally organized reflection periods dedicated to space science and technology.

Enhancing International Cooperation (art. 7.7)

To strengthen South Africa’s strength in space technologies and applications, strategic partnerships with developed countries and other emerging space nations are welcome. In particular, international cooperation will be pursued in accordance with the strategic foreign policy objectives of strengthening the African agenda, South-South cooperation, North-South cooperation and global governance. The priority of foreign policy is cooperation with and between African countries.

Areas of international cooperation include space science and exploration, Earth observation, communications and positioning, synchronization and navigation. These areas of cooperation will, as a first step, be pursued through existing bilateral cooperation agreements, which include space science and technology in their scope, as well as potential new agreements yet to be negotiated with other countries. South Africa intends to actively participate in regional and global multilateral forums for the peaceful uses of outer space.

Financial Implications (art 7.8)

As has not been done in the past, the law encourages the consideration of space applications that offer broad societal benefits as part of the public interest, and of which to be supported by public investors. “Once the momentum is established, public sector investors in space infrastructure and capacity will create the conditions necessary for the development of private sector space activities. South African government departments and public institutions, as key users of space systems, should therefore support South African efforts, not only with financial resources, but also by setting a clear direction as the country must follow in the future. One possibility to consider could be the cross-subsidization of other sectors, the latter perhaps in a better position to attract private investment, through initiatives such as space tourism“.

Understanding ORBITAL ATK V. WALKER (DARPA)

The plaintiffs, Orbital ATK and its subsidiary, Space Logistics LLC, have brought an action against the Defense Advanced Research Projects Agency and its acting director, Dr. Steven H. Walker (collectively defendants or DARPA), seeking to order DARPA’s program for Robotic Maintenance of Geosynchronous Satellites according to the theory that the program violates several provisions of the 2010 National Space Policy, a presidential policy directive, and therefore violates the so-called Administrative Procedure Act.

DARPA has filed a motion to dismiss for lack of jurisdiction in the matter and for failure to bring a claim on which relief can be granted. Defendants argue the court lacks jurisdiction because the complaint runs counter to the Supreme Court’s ban on programmatic challenges to overall improvement of an agency’s programs by court decree and because DARPA’s determination to conduct the RSGS program is firmly committed to the discretion of the agency by law. Furthermore, the defendants argue that even if the court had jurisdiction in the matter, the plaintiffs’ claims must be dismissed because they wrongly argue that the NSP has the force of law.

Background

Orbital ATK and its affiliate argue that DARPA intends to illegally waste hundreds of millions of U.S. taxpayer dollars on developing robotic satellite service technology for which DARPA has admitted there is no current need from the U.S. government. DARPA describes its RSGS program as aimed at implementing robotic servicing of the many government and commercial satellites in Earth geosynchronous orbit. GEO’s orbital period makes it a desirable location for satellites; however, the radiation levels in GEO prevent humans from walking in space and can damage electronics. There is currently no U.S. entity, private or public, capable of serving GEO-based satellites. Therefore, when GEO’s satellites experience breakdowns, malfunctions, schedule delays, gaps in coverage, unscheduled maneuvers, and other abnormal events, they cannot be inspected to determine the source of the problem, nor repaired, moved or upgraded with new capabilities and facilities, thus becoming prematurely obsolete.

In 2011, DARPA announced the Phoenix program to explore potential satellite service capabilities in space. The initial goal of the Phoenix program was to use DARPA’s existing robotic arm technology as well as new technologies to demonstrate that it is possible to salvage and reuse components from retired and unused GEO satellites.

In 2012, DARPA entered into a contract with ATK (the predecessor entity of plaintiff Orbital ATK), to modify an existing government-owned satellite bus for use in the demonstration of the Phoenix program.

By 2013, DARPA’s vision for RSGS technology had shifted from a demonstration phase to a long-term mission with additional capabilities, such as robotic maintenance, and DARPA indicated that it no longer required a reused bus, as this vehicle would not be able to support its new purpose.

In May 2015, DARPA circulated a proposal for a consortium of companies to partner with them to develop real-world service capabilities in GEO. In response to DARPA’s proposal, Orbital ATK argued that extending the life of satellites was the only existing business need sufficient to justify the investment required to support a business case.

When Orbital ATK asked DARPA what long-term commitments U.S. government entities had made to it to use DARPA’s robotic arm technology for the maintenance of GEO satellites, DARPA replied that there was no existing commitments. Orbital ATK expects DARPA to grow as the RSGS program is approved.

Meanwhile, ATK’s parent company had merged with Orbital Sciences Corporation, a maker of commercial GEO satellites and other spacecraft, to create the plaintiff Orbital ATK. ATK has been investing in satellite maintenance technology for commercial satellites since 2008 and, as part of the new ownership structure, Orbital ATK is developing a Mission Extension Vehicle, which is to provide satellite life extension for GEO satellites.

In the meantime, NASA, which had contracted with ATK since 2004 for the design and development of robotic tools for servicing satellites in space, continued to examine the possibility of servicing the satellites in orbit.

In 2015, NASA designed what became the Restore-L program, a project to deploy a robotic spacecraft capable of supplying and maintaining an operational satellite; however, NASA did not focus on GEO, the target of DARPA’s RSGS technology, but rather on Low Earth Orbit.

Although the applicants identify substantial redundancy between the NASA and DARPA programs, they allege that in the case of DARPA, Orbital ATK’s concerns are more acute because of DARPA’s stated plan to transfer the ownership and commercial use of the technology to a single competitor.

In May 2016, DARPA launched a Request for Proposals in conjunction with the RSGS program. The RFP announced DARPA’s intention to partner with a private sector partner to develop and launch a Robotic Service Vehicle: an unmanned spacecraft, consisting of both a robotic payload and a satellite bus, capable of autonomously servicing, repairing and repositioning of satellites in GEO.

According to DARPA, the RSGS program is designed to:

  1. inspect satellites with anomalies;
  2. assist with orbital adjustments of satellites;
  3. correct mechanical problems with satellites;
  4. install upgrade payloads on satellites providing them with new capabilities.

The RSGS program will have five phases: in the first phase, which is ongoing, DARPA and the U.S. Naval Research Laboratory are working together to develop the robotic maintenance payload; that is, the device with a robotic arm capable of repairing satellites. Meanwhile, a private partner is building a satellite bus capable of carrying the payload.

Phase 1: the NRL has contracts with commercial suppliers for the components of the robotic service payload, including with the plaintiff Orbital ATK, which was engaged to design the printed circuits.

Phase 2: the private partner will integrate the payload on the bus belonging to the partner with the support of DARPA.

Phase 3: DARPA launches RSV in GEO.

Phase 4: allows DARPA to work with its industrial partner to demonstrate the capabilities of RSV in a series of exercises specified by DARPA.

Phase 5: DARPA will transfer ownership of the robotic maintenance payload to the private partner, who will continue to own and operate the RSV while providing fee-for-service operations to the U.S. government and commercial GEO satellite operators.

On June 22, 2016, the CEO of Orbital ATK wrote a letter to DARPA, expressing concern that the RSGS program violated several provisions of the NSP and claiming that it would unfairly benefit DARPA’s private partner and harm DARPA’s private partner investment in ATK’s Orbital MEV System. DARPA claimed that a response to the letter would be inappropriate and declined to meet with Orbital ATK.

Orbital ATK eventually attended a briefing regarding the RSGS solicitation. In response to written questions about the RSGS program, DARPA explained that the RSV was not intended to be used to extend life, but rather for robotic maintenance. DARPA retorted that if the private partner wanted to develop life extension capabilities, this would be complementary to the advanced robotic capabilities that DARPA is proposing to activate.

On July 5, 2016, As DARPA closed all other lines of communication, Orbital ATK reiterates its objections in a counter-proposal to the RSGS satellite bus RFP. Orbital ATK then came up with three alternative approaches that it said would save the government money and meet DARPA’s stated goals:

  1. the first approach was to test DARPA’s robotic arm on the ground, followed by the transfer of the technology to all U.S. companies interested in fair and equal business development;
  2. the second approach was for DARPA to fund the development, production and testing of RSGS technology as a hosted payload on a commercial satellite bus, but not to transfer ownership, nor to subsidize the costs of the start-up from a single private operator.

On July 14, 2016, DARPA asked Orbital ATK to submit a more detailed proposal.

On September 9, 2016, Orbital submitted an updated counter-proposal, providing more details on Orbital ATK’s second approach by proposing that DARPA modify the program to one involving a hosted payload without compensation for launch or the transfer of ownership of the payload.

On December 14, 2016, DARPA sent Orbital ATK a letter stating that its comments were no longer being considered. Following its final assessments, DARPA selected Space Systems / Loral LLC, a wholly owned subsidiary of MacDonald Dettwiler and Associates, a Canadian company, as its industrial partner.

This relationship is based on an Other Transaction agreement, a special instrument authorized by Congress to allow DARPA to flexibly enter into purchase agreements, for specified purposes, outside the constraints of the Federal Acquisition Regulation and other sources of normally applicable federal government procurement law.

The complainants allege that the RSGS program violates five separate provisions of the NSP issued in 2010 by then-President Barack Obama. The NSP is a presidential directive that sets out the political objectives of the United States in the field of outer space. The document, which comes in the form of a memorandum from the president to cabinet secretaries and other senior executive officials, begins by setting out the principles of cooperation with the international community that the United States will adhere to, continues outlining goals for US, state space programs, and concludes by offering cross-sectoral and sectoral guidelines to departments and agencies. The complainants focus on five specific provisions of the Commercial Space Guidelines section of the NSP according to which agencies should:

  1. purchase and make maximum use of commercial space capabilities and services when such capabilities and services are available in the marketplace and meet United States government requirements;
  2. modify commercial space capabilities and services to meet government requirements when existing commercial capabilities and services do not fully meet those requirements and the potential modification represents a more cost effective and timely procurement approach for the government;
  3. develop government space systems only when it is in the national interest and there is no suitable and cost-effective U.S. commercial or, where applicable, foreign commercial service system that is or will be available;
  4. refrain from conducting United States government space activities that prevent, discourage, or compete with United States commercial space activities, unless required by national or public security;
  5. to ensure that United States government space technology and infrastructure is made available for commercial use on a reimbursable, interference-free and fair basis to the greatest extent possible.

As a remedy, Orbital ATK and its subsidiary request:

  1. a declaratory judgment that the DARPA RSGS project violates the national space policy and the law on administrative procedure;
  2. a permanent injunction prohibiting any further action in favor of the acquisition of RSGS;
  3. discussion of the standard of review;
  4. dismissal for lack of jurisdiction in the matter.

Rule 12 (b) (1) of the Fed. R. Civ. P. allows a defendant to challenge the jurisdiction of a federal court over the subject matter of a complaint. The question of material jurisdiction may be raised by the parties or by the court, sua sponte, at any stage of the dispute. It is up to the applicant to establish material competence. When the Court approaches the matter solely on the basis of the petition documents, supporting legal notes and relevant allegations of a complaint, the burden on the complainant is simply to make a prima facie case in order to survive the jurisdictional challenge.

Rejection for failure to report

By considering a motion to reject under the Fed. R. Civ. P. 12 (b) (6), the Court must presume that the facts alleged in the complaint are true and must draw all reasonable conclusions in favor of the plaintiff. Judgment must be rendered when the pleadings present no known claim for relief, and the issue can, therefore, be decided as a question of law. The factual allegations must be sufficient to raise a right to redress above the speculative level, assuming that all the allegations in the complaint are true (even if they are in fact questionable).

Question of law

The question before the Court is whether, under the terms of the complaint, the Court has jurisdiction in the matter under the APA and whether the NSP has the force of law.

On the competence in the matter

DARPA contend that the Court has no such jurisdiction over the litigation because the complaint constitutes a challenge to the RSGS program, which is not a questionable agency action under the APA, and, even if it did, DARPA’s determination to continue the RSGS program is committed at the discretion of the agency by law.

Orbital ATK and its affiliate allege that it is because this action arises out of Federal Administrative Procedure Act, this Court has federal jurisdiction under 28 U.S.C. §1331.

Indeed, §1331 grants district courts the original jurisdiction of all civil actions arising out of the Constitution, statutes or treaties of the United States, and although §1331 does not waive the Sovereign government immunity, the APA contains a limited waiver of immunity.

§702 states: A person who suffers legal damage as a result of an agency action has the right to judicial review. An action seeking relief other than damages will not be dismissed on the grounds that it is against the United States. If the complaint does not challenge the agency’s action, a court does not have jurisdiction over the matter for the complaint. The APA also expressly excludes from its scope agency actions [which] are brought at the discretion of the agency by law.

Congress has defined the term agency action to mean all or part of an agency rule, order, license, sanction, remedy, or its equivalent or his refusal, or his failure to act. The term action as used in the APA is a term which does not include all behaviors such as, for example, the construction of a building, the operation of a program or the execution of a contract. Specifically, the Supreme Court expressly excluded claims for overall program improvement from judicial review because a program is not an action that can be conducted separately from an agency.

As the Supreme Court went on to explain, the barrier against this type of large-scale programmatic attack is rooted in the definition of agency action, which, in its words, requires the action be discreet This limitation serves to protect agencies against interference with their legitimate discretion. This prevents judges from becoming entangled in abstract political disagreements that cannot be resolved by the courts due to a lack of expertise and information.

The defendants explain that the RSGS program is not a separate agency action, but a multi-phased program, comprising, for example, several contracts entered into by both DARPA and NRL with various aerospace companies to purchase components and services, a program in which DARPA provides funding for research and development activities in the areas of robotics maintenance in orbit.

Orbital ATK et al respond to this argument by ignoring the wording of their complaint, which clearly challenges the entire RSGS program. The plaintiffs are entitled to a declaratory judgment and an injunction to prevent the defendants from taking action to advance this illegal program. Instead, the plaintiffs oppose the defendants’ motion to dismiss by focusing on DARPA’s award of the OT deal, which they describe as a final agency action under review of the APA.

Despite having devoted four pages to this argument, the plaintiffs do not cite a single passage from the complaint to support the contention that their challenge is limited to the specific decision to enter the TO. The only reference to a consummated contract is the statement that: on February 6, 2017, DARPA announced that it has made a final decision, and Space Systems / Loral LLC has been selected as a business partner.

Instead, the complaint systematically relates to the RSGS program. The first paragraph of the complaint alleges that the DARPA program is in direct violation of several provisions of the 2010 National Space Policy and therefore constitutes a violation of the Law on Administrative Procedure. Throughout the remainder of the seven paragraph introduction, the complainants repeatedly refer to DARPA’s program. Applicants never refer to the OT agreement.

Likewise, the five sections describing the various charges conclude that DARPA’s decision to continue the RSGS program as constituted in direct violation of national space policy is arbitrary, capricious and unlawful.

The relief sought is a declaratory judgment that the DARPA RSGS project violates national space policy and a permanent injunction prohibiting all further action in the pursuit of the RSGS market, and not actions in favor of the OT deal.

The mere fact that the OT agreement is part, perhaps even an integral part, of the RSGS program, is not enough to convert the plaintiffs’ programmatic challenge into a justiciable request for judicial review of the agency’s action. On the contrary, as the RSGS program consists of multiple interdependent actions, of which the achievement of a private partner relationship through the OT agreement is only one, the challenge is not justiciable simply because one of the actions ripe for review prejudices the plaintiffs.

Moreover, contrary to the complainants’ argument, their complaint does not simply challenge one element of DARPA’s action. Rather, the five-count complaint explicitly challenges the development of DARPA’s technology that the plaintiff claim it should buy from the commercial sector (Counts I, II and III). Since the complaint is an attack on the RSGS program, this Court has no jurisdiction in the matter and, for that reason alone, DARPA’s motion must be allowed.

Force of Law

Even if the complainants’ complaint was not interpreted as a challenge to the RSGS program, to prevail over a challenge to the OT agreement, the complainants would still need to establish that the NSP provides the law against which to measure agency action.

On this point, the defendants argue that the terms of the NSP make it clear that this document is merely a political directive from the president to his subordinates.

The defendants do not dispute that a presidential ordinance can have the force and effect of law; rather, they point out that such orders are only enforceable under the APA when issued under:

  1. a statutory mandate;
  2. a congressional delegation of legislative power.

In the context of the APA, the word law refers to the legislative authority under Article I of the Constitution, and not to the executive authority of the President under Article II, which may certainly have legal effect. In accordance with this distinction, some presidential ordinances are only internal directives intended for the internal management of the presidential cabinet and should not be applied by the courts.

The complainants deny that the NSP is simply a management tool; instead, they insist that the NSP 2010 is the latest in a long series of executive decrees concerning space policy which:

  1. are based on express authorizations from Congress;
  2. have been ratified by action of Congress.

Complainants call the NSP a decree, but it is in fact a presidential directive. The defendants will use it by not contesting the fact that presidential policy directives such as the NSP are a form of decree, such that, like any other decree, and depending on the source from which they derive their authority, these directives may have the force of law.

While the Court accepts that, in certain circumstances, a presidential directive might have the force of law, treating it as a form of decree overrides a number of potentially relevant distinctions.

Since the ratification of the Constitution, presidents have issued directives establishing a new policy, decreeing the commencement or cessation of certain actions, or ordering that notification be given to a declaration. These instruments, which can be described as most widely presidential directives, have taken many forms ranging from oral directives to executive orders published in the Federal Register.

In 1935, Congress passed the Federal Register Act, which requires all Presidential Proclamations and Executive Orders, except those which do not have general application and legal effect or which are effective only against Federal agencies, or persons in their capacity as officers, agents or employees, must be published in the Federal Register.

Under the Obama administration, the guidelines that were used to promulgate presidential decisions on security matters were referred to as Presidential Policy Guidelines (PPD) and Presidential Study Guidelines (PSD).

After examining the NSP, which is designated PPD-4, the inescapable conclusion is that it represents a set of internal management guidelines and does not have the force of law. The NSP is a memorandum addressed to twenty-three officials in the executive branch, including the vice president, various cabinet secretaries, the chairman of the Joint Chiefs of Staff, and the administrator of NASA. Although the memorandum identifies a number of presidential directives that it supersedes, it does not cite the authority under which it is issued. In addition, the NSP has not been published in the Federal Register, either in whole or in part.

On the basis of these elements, the Court concludes that the NSP is a directive aimed at the internal management of the executive and it was not promulgated on the basis of the legislative power delegated by Congress. As such, it does not have the force of law and does not constitute a basis for bringing an APA action in this court.

The NSP was intended primarily as a management tool to implement the President’s personal policies and not as a legal framework enforceable by private civil action. Because the NSP is an internal management tool, it is not for the court to determine whether an agency is following the president’s directives.

The plaintiffs still insist that it has the force of law because there are many statutory foundations for the NSP. This argument invites the Court to ignore the opening question of whether the President intended the NSP have the force of law and to simply wonder whether he could have done so. Even if the President had intended the NSP to have the force of law, the general provisions of Congress to which the complainants cite, which make general statements on policy and space programs, fall far short of the specific statutory basis that a presidential directive must receive. Moreover, since DARPA is part of the DoD, neither the president’s power to oversee NASA nor the various other statutes directed against it. NASA to which the complainants cite have no bearing on its authority vis-à-vis DARPA.

Likewise, the statement that it is the policy of the United States for the President to take appropriate steps to ensure, to the greatest extent possible, that the United States has the necessary capabilities to launch and insert payloads. National Security Policy in space when necessary, does not contain any delegation of authority but simply describes United-States policy. It also does not mention the wide range of space-related activities covered in the NSP.

Moreover, although the complainants make great emphasis that in October 2010, four months after the publication of the NSP, Congress ordered the president to develop a national policy to guide the space technology development programs of the U.S. until 2020, and has since tasked NASA with developing an infrastructure plan that is consistent with the national strategic direction set out in the National Space Policy, National Aeronautics and Space Administration Transition Authorization Act of 2017. None of these provisions do not constitute a delegation of legislative power. They simply reaffirm the President’s decision-making role in directing the operations of U.S. space agencies.

The insufficiency of these statutes as a basis for concluding that the NSP has the force of law is reinforced by the important difference between the generality of the statutes cited by the complainants and the specific statutory foundations recognized as giving the force of law to the presidential directives.

In short, the structure and content of the NSP and the statutes and precedents cited by the complainants do not demonstrate that the NSP has the force of law and, as such, Orbital ATK et al cannot support a claim for redress under of the APA.

Conclusion

For the reasons set out above, the defendants’ motion to dismiss for lack of jurisdiction in the matter and for failure to bring a claim on which relief is granted by an appropriate order and the plaintiffs’ complaint is dismissed without prejudice.

The Danish Space Law of May 11, 2016

For this new space law article on Space Legal Issues, let us have a look at the Danish Space Law. The Folketing, the unicameral parliament of Denmark, passed a national space law called the “Outer Space Act” on May 11, 2016, which was followed by a decree on the requirements for approval of activities in space. This is an important step in the international legal community. It should be remembered that the law of space activities is largely made up of international treaties and few countries make use of their own national space laws. Indeed, France with the law n° 2008-518 of June 3, 2008 was one of the first countries to have voted one.

The Danish Space Law is an extension of the Danish space policy so that it addresses the space activities of the Danish state by calling in particular for the idea of a citizen’s private interest in space activities. Its purpose is to harmonize international space law and Danish private space activities. Symmetrically to the French law of 2008, which served as the basis for decree 2009-643 of June 9, 2009 and the decree of March 31, 2011, the Danish space law serves as the basis for future national space legislation. This law entered into force on July 1, 2016. The purpose of this article is to define its outlines.

Scope and objectives

The scope of application of the Danish OSA of May 11 only applies to space activities carried out in the Danish State and to space activities carried out outside the national territory on Danish devices or installations or by Danish operators. Although there is no internationally accepted definition of outer space, the Danish state did not consider it a priority to advance a very elaborate definition. According to the OSA, outer space is defined as “space beyond 100 km above sea level“. The objective is to clarify the scope of the law for launches or attempted launches up to a clearly defined point with a view to reassuring the industries. However, this does not constitute a Danish position with regard to the definition of the term under international law as mentioned in the OSA explanatory notes.

Regarding the objectives, the OSA stated as follows in the Part 1:

1. The objective of this Act is to determine the framework for ensuring that Danish activities in outer space take place on a regulated and safe basis through:

1) approval and supervision of activities in outer space;

2) registration of space objects;

3) clarity of the liability of operators and others for damage and injuries caused by space objects“.

Definitions

For the purposes of this Act:

1) Space activity means: launching space objects into outer space; operation, control and return of space objects to Earth; as well as other essential activities in this connection.

2) Space object means: any object, including its component parts, which has been launched into outer space, or which is planned to be launched into outer space, and any device which has been used, or is planned to be used, to launch an object into outer space.

3) Operator means: a natural or legal person who performs, or undertakes to perform, space activities.

4) Outer space means: space above the altitude of 100 km above sea level.

5) Owner means: a natural or legal person who owns a space object.

6) Launching State means: a State which launches, or procures the launching of, a space object, or from whose territory or facility a space object is launched“.

In international law, the expression space object is understood to mean the constituent elements of the object as well as its launcher, but nothing is specified as to the launch. The OSA provides a more precise definition than that retained by international treaties by conferring the quality of space object to those which have been launched but also which aim to be so in the future. Also considered as space objects are all devices that have been used or tend to be used to launch an object into space. This definition is much broader than the definition resulting from international law which considers the spatiality of the object in strict consideration of its position in space.

In addition, the porous definition from international law concerning outer space is through the OSA clearly defined as being located beyond the limit of 100 km above sea level. However, this position is not is valid only under the law and is not intended to define Denmark’s position under international law. However, the delimitation by national law of airspace and outer space may lead the international community to decide this issue in the future.

As for the definition of launching State, it remains in the OSA identical to that laid down by international law.

Approval of space activities

Space activities by the citizen to be covered by the OSL must necessarily obtain the prior approval of the Minister of Education and Science. Space activities are thus tightly controlled by the authorities. The approval of the Minister may be granted after request from the operator and after the operator has provided a certain amount of documentation.

There is a list of documents requested:

1) the ownership of the space object;

2) that the operator has the required qualifications, including the technical expertise and financial capacity, to carry out the space activity which the application concerns;

3) that the space activity which the application concerns is carried out in an appropriately safe manner and meets the relevant standards and guidelines;

4) that the operator has taken appropriate measures with regard to space debris management;

5) that the space activity which the application concerns is carried out in an environmentally safe manner;

6) that the space activity which the application concerns does not conflict with national security interests, Denmark’s international obligations or foreign-policy interests;

7) that the operator meets requirements for insurance or other liability cover laid down pursuant to section 13(1), 1st clause;

8) that the operator meets current regulations under the International Telecommunication Union (ITU) with regard to allocation of frequencies and trajectory positions“.

In the event of new circumstances having an impact on the delivery of the test, or any unforeseen event, the operator must on his own initiative by referring to the Minister. If necessary, the Minister may modify or withdraw the accreditation. He may also order the continuation of the space operation by another operator if circumstances permit.

It should be noted that two mentions deal with environmental considerations. These prior obligations to reduce space debris and respect the space environment follow the non-binding regulations issued by the various international space actors through the guidelines of good conduct. The integration of environmental regulations into national laws is a real step forward towards more binding international harmonization in this area.

Registration

Like the obligation resulting from the Convention of January 14, 1975 on the registration of objects launched into outer space, the Minister of Higher Education and Science must establish a public register of space objects. This register must contain the information of space objects launched into Earth orbit or beyond when Denmark is the launching State. This information must then be transmitted to the UNSG in accordance with the 1975 Convention.

In line with the environmental consideration linked to the reduction of space debris, the OSA does not establish an obligation for the operator or for the state authorities a specific part of the detection and sharing of debris information space thus detected. This law sets out to define a national legal framework specific to the conduct of Danish space activities by measuring the consequences on the environment of the latter, but does not open the way to a responsibility as a space State in the detection of space debris.

Liability and insurance

Article 11 of the OSA limits itself to taking up the principles of liability resulting from the Convention on International Liability for Damage Caused by Space Objects of 1972. As a reminder, Article VII of this convention establishes a so-called objective liability or risk liability. In the event of damage caused by a space object of a launching State to the surface of the Earth or to an aircraft in flight. In this situation, demonstration of the fault is not required. Liability is said to be subjective if the damage occurs in outer space and, in this case, the launching State is only liable in the event of fault attributable to it.

However, the OSA only deals with the first situation, i.e. strict liability. With the definition of outer space it is possible to deduce that liability is possible under this law in the event of damage occurring at an altitude below 100km above sea level. In the event of damage occurring in outer space, the law is not intended to apply, international regulations then take over. In addition, partial or even total exemption from liability is provided for in the event of gross negligence.

Regarding compensation in the event of damage, Article 13. – (1) provides for the possibility for the Minister to require the operator to take out insurance:

As a condition for granting approval for a space activity, the Minister for Higher Education and Science may impose requirements on the operator to take out insurance or in some other way provide security to cover the liability“.

Penalties

This is one of the strengths of OSA. In fact, most of the national regulations on space activities are devoid of sanctions in the event of non-compliance. The example of the French law of 2008 is the archetype.

Danish law deals with violations of Articles 5; 8; 9 paragraph 2, point 2; Section 15, paragraph 1; or Article 16, paragraph 2, and non-compliance by law with insurance and security requirements. Failure to comply with these sections of the law is punishable by a fine or imprisonment of up to four months. This is the general framework. These four months may, however, be extended to two years, particularly in cases where the violations result in injury or death. More generally, situations which expose people to danger. A fine or a four-month prison sentence is provided for failing to meet the registration requirements under section 10 of the law.

Conclusion

The Danish parliament have designed and implemented a national space legislation unique in its content. It is not the first national regulation to appear but Denmark remains ahead of many in this area. In addition to defining a general legal framework and taking environmental issues into account, Denmark has gone so far as to provide for fines in the event of non-compliance, thus going beyond simple non-binding recommendations. The OSA is designed to meet the national needs of Denmark but also to harmonize with international regulations. Space law in Denmark deserves the attention of international actors who could, in the years to come, acquire such legal tools, thus building a new legal framework specific to space activities. This is what can be said concerning the Danish Space Law.

The first satellite of Myanmar

Myanmar is preparing to launch its very first Earth observation satellite, as part of a space program bringing together nine Asian countries intended to better arm themselves in the face of natural or climatic disasters.

The future Asian “super constellation” will be able to follow typhoons, seismic activity and ocean currents on the continent, and will also be able to provide information on the state of cultivated land or the progression of an epidemic.

This is the first space adventure for the poorest country in a consortium that also includes the Philippines, Vietnam, Indonesia and Japan. In the long term, Malaysia, Thailand, Bangladesh and Mongolia will also join the consortium.

Made in Japan, the satellite was designed and developed in Burma in a space shuttle-shaped building at the center of a university campus housing the aerospace engineering school, near Meiktila, in the center of the country. This technology will help the Southeast Asian country to “take a leap forward” school Principal Kyi Thwin said.

Burma’s first contribution thus amounts to sixteen million American dollars, compared to more than one hundred million American dollars for a conventional satellite. The country does not have a launch base, but the satellites will nevertheless be partially operated from Burma, which will work in tandem with another control center based in Japan.

The objective of the Burmese-Japanese project

Burma will be one of the main actors” in the project, told Yukihiro Takahashi, from the Japanese university of Hokkaido, who supports the Burmese engineers in their work. “What was big, heavy and expensive has become small, light and affordable” he says.

The goal is to launch around five micro-satellites per year, each weighing less than one hundred kilograms and having a lifespan of five years, until the consortium controls around fifty spacecraft placed in orbit.

According to Mr. Takahashi, the devices used to photograph the Earth are among the best on the market, capable of taking pictures of typhoons or disaster areas almost continuously, images which will then be modeled in 3D. This high-definition imagery will also help track agricultural land use and urban development, as well as detect deforestation or illegal mining.

Sinead O’Sullivan, a researcher at the Massachusetts Institute of Technology (MIT), has advocated for years for emerging economies to invest in their own satellite technology, rather than depending on industry giants who sell their imagery at sky-high prices. “It is quite logical – politically, economically and socially – that these countries equip themselves to respond to the management of their own risks”.

A team of seven Burmese engineers, including Thu Thu Aung, will travel to Japan for the occasion. The 40-year-old engineer relishes the last few months before experiencing what seemed unattainable to her when, as a child, she thrilled in front of films about the heroes of the space conquest. “It is our dream to send a satellite into space, from our university”.

Japan blocked Myanmar’s first satellite, although the satellite was launched from Earth but was stored in the Japanese section of the International Space Station (ISS).

The satellite was sent by NASA on February 20, as a small part of a huge payload of provisions moved to the International Space Station, which is 400 km above Earth. It has since been kept by JAXA in Japan’s Kibō exploration module.

Why is Japan holding it?

Japan has always maintained close relations with Myanmar and is one of the country’s largest aid donors. While condemning the violence, he was not as harsh in his criticism of the coup as the United States of America and other Western countries that have imposed sanctions.

The contract with the Myanmar Aerospace Engineering University did not mention that the satellite should not be used for military purposes, Hokkaido University officials said. However, the spacecraft’s data will be obtained by the Japanese university and will not be accessible to Burmese officials independently.

Human rights activists and some Japanese authorities feared that the cameras mounted in the satellite could be used for military purposes, for example, by the Burmese army, which held power on February 1, to filter the protesters. This is why the shipment had to wait briefly.

ASEAN countries such as the Philippines, Malaysia and Indonesia became active in space development and Myanmar did not want to lose the race, which is why a steering committee was established by the government of Myanmar in 2017 to set up a country-owned satellite system.

Myanmar has secured the right to use part of Intelsat 39, a communications satellite launched from Guyana in August 2019, for services in the country. Although it is not Myanmar’s own satellite, so they were planning to launch its first satellite in 2021 using Japanese technology.

Under the contract, Burmese engineers will build two satellites over five years as part of the initiative and gain experience in satellite design and data processing through a series of processes leading up to the launch.

The Nigerian space vision

In August 1963, the first satellite telephone conversation in history took place between U.S. President John Fitzgerald Kennedy (1917 – 1963) and Nigerian Prime Minister Abubakar Tafawa Balewa (1912 – 1966). More than fifty years after this phone call, anecdotal in its content but highly symbolic, Nigeria announced in 2016 that it wanted to send a man to space by 2030.

Nigeria is entering the space age, but these ambitions have sparked controversy: some believe that the money would be better invested in the fight against poverty. And this in a country where seventy percent of the population lives on less than a dollar a day. Indeed, Nigerians face difficulties in everyday life, especially the frequent blackouts which force many Nigerian companies and institutions to resort to generators.

Notable launches from the Nigerian space program

Nigeria’s National Space Policy was approved in 2001 and resulted in the launch of Nigeria’s first satellite, NigeriaSat-1, on September 27, 2003.

The primary objectives of the Nigeriasat-1 were to give early warning signals of environmental disaster; to help detect and control desertification in the northern part of Nigeria; to assist in demographic planning; to establish the relationship between malaria vectors and the environment that breeds malaria and to give early warning signals on future outbreaks of meningitis using remote sensing technology; to provide the technology needed to bring education to all parts of the country through distant learning; and to aid in conflict resolution and border disputes by mapping out state and International borders.

NigComSat-1, a Nigerian satellite built in 2004, was Nigeria’s first communication satellite. It was launched on 13 May 2007, aboard a Chinese Long March 3B carrier rocket, from the Xichang Satellite Launch Centre in China. The spacecraft was operated by NigComSat and the Nigerian Space Agency, NASRDA. On 11 November 2008, NigComSat-1 failed in orbit after running out of power due to an anomaly in its solar array. It was based on the Chinese DFH-4 satellite bus, and carries a variety of transponders: 4 C band; 14 Ku band; 8 Ka band; and 2 L band. It was designed to provide coverage to many parts of Africa, and the Ka-band transponders would also cover Italy.

On 10 November 2008, the satellite was reportedly switched off for analysis and to avoid a possible collision with other satellites. According to Nigerian Communications Satellite Limited, it was put into “emergency mode operation in order to effect mitigation and repairs”. The satellite eventually failed after losing power on 11 November 2008.

On 24 March 2009, the Nigerian Federal Ministry of Science and Technology, NigComSat Ltd. and CGWIC signed another contract for the in-orbit delivery of the NigComSat-1R satellite. NigComSat-1R was also a DFH-4 satellite, and the replacement for the failed NigComSat-1 was successfully launched into orbit by China in Xichang on December 19, 2011. The satellite according to Nigerian President Goodluck Jonathan which was paid for by the insurance policy on NigComSat-1 which de-orbited in 2009, would have a positive impact on national development in various sectors such as communications, internet services, health, agriculture, environmental protection and national security.

Nigeria successfully launched NigeriaSat-X, the first African designed and built satellite placed into orbit, on August 17, 2011. NigeriaSat-X was launched with another small satellite, NigeriaSat-2, from Yasny in southern Russia. NigeriaSat-2, Nigeria’s second satellite, was built as a high-resolution earth satellite by Surrey Space Technology Limited, a United Kingdom-based satellite technology company. It has 2.5-metre resolution panchromatic (very high resolution), 5-metre multispectral (high resolution, NIR red, green and red bands), and 32-metre multispectral (medium resolution, NIR red, green and red bands) antennas, with a ground receiving station in Abuja.

This satellite is the result of a transfer training agreement between the National Space Research and Development Agency (NASRDA) and Surrey Satellite Technology Ltd, a UK-based satellite manufacturer. United. As part of the project, 26 young scientists from NASRDA worked on the satellite for 18 months, under the supervision of experts in Surrey.

NigeriaSat-X is used for resource management, and country mapping with the aim of contributing to food security through crop monitoring, urban planning as well as disaster management. It also facilitates the development of Nigeria’s space capabilities and technical skills for new technologies.

Nigeria, a major player in the spatialization of the African continent

In January 2019, the African Union (AU) endorsed the creation of an African Space Agency, thus sending a clear message to the rest of the world: Africa is also looking towards the stars, and is arming itself for it space conquest.

The 25-year national space mission roadmap, approved by the government in 2006, aimed to produce a Nigerian astronaut by 2015; launch a satellite made in Nigeria between 2018 and 2030, and be part of the lunar mission by 2030.

Starting from afar, the continent is in a hurry to catch up. Of the 31 African satellites launched since 1998, forty percent have been in the past three years. Along with Egypt, which will host the headquarters of the African Space Agency this year, Nigeria and South Africa are counted as the continent’s heavyweights. The latter was chosen to host one of the two sites where the Square Kilometer Array will be deployed, the world’s largest radio telescope developed to probe the far reaches of space.

In Nigeria, the space agency provides security forces with satellite images to track down Boko Haram jihadists or insurgent groups raging in the oil-producing Delta region in the south of the country. The Nigerian agency, which turns 20 in 2019, has also regularly supported the federal government during the various elections, by assisting the various independent national commissions in their electoral mapping mission, in order to ensure that isolated populations are involved in the democratic process.

While their small number might seem anecdotal in the light of the titanic space projects deployed by the Americans SpaceX or Amazon, African observation satellites offer invaluable information to countries often lacking in infrastructure: in remote areas, telemedicine services enabled by in-orbit devices compensate for the lack of hospitals.

Space cooperation agreement between India and Nigeria

The historic geostrategic struggle between China and India has just reached Nigeria, a country located in the Gulf of Guinea, which with more than 200 million inhabitants is the most populous in Africa and which, thanks to its wealth oil, is the first economic power of the black continent.

Newly re-elected Indian Prime Minister Narendra Modi took a big step forward in August 2020 by negotiating a major space cooperation agreement with Nigerian President Muhammadu Buhari. He won the February 2019 elections and renewed his second four-year term.

The agreement signed between the two governments tends to strengthen “the exploration and use of outer space for peaceful purposes“. New Delhi’s intention is to get closer to the executive of Muhammadu Buhari and his National Space Research and Development Agency (NASRDA).

The Indian space sector is led by the Indian Space Exploration Agency (ISRO), which is committed to “providing assistance for capacity building, sharing of scientific knowledge, fostering cooperation between institutes and university centers and the holding of joint forums and symposia“.

The bilateral memorandum of understanding was signed between the Asian nation’s foreign minister, Vellamvelly Muraleedharan, and the African country’s federal science and technology minister, Ogbonnaya Onu. But it had to be formalized by telematics means because of the restrictions caused by the coronavirus pandemic which affects around three million people in this large Asian country and fifty thousand in Nigeria.

India wants to become the main trading partner in Africa

New Delhi’s interest in carrying out the recently concluded agreement is crucial. India’s main trading partner in Africa, Minister Vellamvelly Muraleedharan did not hesitate to call Nigeria a close friend. The two governments have therefore agreed to strengthen their relationship in the space sector, which has been in flux for more than a decade.

A previous technical collaboration agreement only trained half a hundred Nigerians in remote sensing in twelve years, which contrasts with the more than five hundred technicians trained by the Chinese. It is now a question of promoting space science, the exploration of planets, earth stations, joint research and development projects and above all the development of micro and mini satellites.

Indian technicians, through ISRO and all its public and private organizations linked to the space sector, will contribute, thanks to their great experience in Earth observation and satellite navigation, to promote the projects of President Muhammadu Buhari in the areas of oil and mining, environment, improvement of agriculture and maximum use of watersheds. The Indian Agency and industry in the country have designed, produced and placed in space numerous observation satellites of all types and sizes.

ISRO will also try to introduce its technologies in satellite communications and broadband connectivity to meet the demands of the African country. It will even offer its launchers to put into orbit platforms that the two countries can jointly develop or that Nigeria can acquire from Indian industry.

The presence and influence of Beijing have an important weight in the government of this West African country. In 2006, Nigeria became the first African nation to sign a strategic alliance with China. During the present millennium, China has become one of the main trading partners on the African continent.

China already manufactures Nigeria’s communications satellites

Since the beginning of the 21st Century, aid, loans and investments from Beijing have skyrocketed, both in infrastructure construction, in the energy and military sectors and in the space field. The government of nationalist Olusegun Obasanjo founded NASRDA in August 2001, in April 2004 established the state-owned telecommunications company NigComSat and in December of the same year it contracted with the Chinese authorities to build the first communications satellite of the country, NigComSat-1, based on the Chinese DFH-4 platform.

The operation was carried out with a two hundred million American dollars loan from the Export-Import Bank of China, which included training Nigerian technicians and building control stations. It was the first time that China had delivered a turnkey satellite, a policy it has since applied to its Latin American partners.

Large in size, weighing five thousand kilograms and with an estimated lifespan of fifteen years, the satellite was launched in May 2007 aboard a Chinese Long Range 3B rocket from the Xichang space base. However, in mid-2008, repeated anomalies of its solar panels caused serious malfunctions, which made it necessary to stop the mission in November. Fortunately, the Nigerian authorities had been cautious and had taken out a malfunction insurance policy. In March of the following year, they ordered a relay platform. Dubbed NigComSat-1R, it was launched from the same space base in December 2011.

Muhammadu Buhari already agreed in 2018 with Xi Jinping to build two more communication satellites. The Beijing government has granted a loan of five hundred and fifty million American dollars, the return of which should take the form of an entry of Chinese state-owned enterprises in the capital of NigComSat, which has been in deficit since its inception. China sees the Nigerian telecommunications company as a springboard to increase its influence and cover the expanding market that is opening day by day on the African continent.

Indian interests in Africa

The Indian authorities and the ISRO management are not interested in space communications, but in remote sensing. So far, successive governments in Abuja have diversified their space ambitions and have entrusted their Earth observation satellites to the United Kingdom (manufacture) and Russia (put into orbit). It is precisely in this sector that Narendra Modi intends to conclude concrete agreements with Muhammadu Buhari and to position itself in this field in Africa.

Nigeria has three small platforms. Two of them were manufactured in the United Kingdom by the British firm Surrey (NigeriaSat-1 and NigeriaSat-2) and a third (NigeriaSatX) with the support of Surrey, but under the responsibility of a team of Nigerian engineers. NigeriaSat-1, which weighs one hundred kilograms, was launched in September 2003 and is currently out of service. On the other hand, NigeriaSat-2 (three hundred kilograms) and NigeriaSatX (one hundred kilograms) were put into orbit at the same time in August 2011 and are still operational at an altitude of seven hundred kilometers, although their lifespan tends to reach its limit term.

The Rwanda Space Agency

Rwanda experienced Africa’s worst genocide in modern times, but the country’s recovery was marred by its intervention in the conflict in neighboring Democratic Republic of Congo. The country has been beset by ethnic tension associated with the traditionally unequal relationship between the dominant Tutsi minority and the majority Hutus.

Although after 1959 the ethnic relationship was reversed, when civil war prompted around two hundred thousand Tutsis to flee to Burundi, lingering resentment led to periodic massacres of Tutsis. The most notorious of these began in April 1994. The shooting down of the plane carrying President Juvénal Habyarimana, and his Burundian counterpart, near Kigali triggered what appeared to be a coordinated attempt by Hutus to eliminate the Tutsi population.

In response, the Tutsi-led Rwandan Patriotic Front (RPF) launched a military campaign to control the country. It achieved this by July, by which time at least eight hundred thousand Tutsis and moderate Hutus had been brutally massacred.

Some two million Hutus fled to Zaire, now the D.R. Congo. They included some of those responsible for the massacres, and some joined Zairean forces to attack local Tutsis. Rwanda responded by invading refugee camps dominated by Hutu militiamen.

Meanwhile, Laurent Kabila, who seized control of Zaire and renamed it the DR Congo, failed to banish the Hutu extremists, prompting Rwanda to support the rebels trying to overthrow him.

Rwanda withdrew its forces from D.R. Congo in late 2002 after signing a peace deal with Kinshasa. But tensions simmer, with Rwanda accusing the Congolese army of aiding Hutu rebels in eastern D.R. Congo.

Rwanda has used traditional gacaca community courts to try those suspected of taking part in the 1994 genocide. But key individuals, particularly those accused of orchestrating the slaughter, appear before an International Criminal Tribunal in northern Tanzania.

The country is striving to rebuild its economy, with coffee and tea production being among its main sources of foreign exchange. Nearly two thirds of the population live below the poverty line.

Briefly

Politics: Rwanda is trying to shake off its image associated with the 1994 state-sponsored genocide; the government argues the country is now stable.

Economy: growth has exceeded five percent in the five years since 2001, driven by coffee and tea exports and expanding tourism; poverty is widespread and Rwanda is highly dependent on international aids.

Justice: the U.N. International Criminal Tribunal for Rwanda (ICTR), sitting in Tanzania, rendered thirty judgements related to the 1994 genocide by October 2006.

Rwanda’s first steps in the space race

Rwanda is one of the world’s poorest countries, and its space program is not surprisingly, nonexistent.

Rwanda was active in the African Union Space Science and Technology Working Group which drafted the African space policy and strategy and launched its first RWASAT-1 satellite in 2019. It was launched in partnership with the Japanese Aerospace Exploration Agency (JAXA).

The second Rwandan satellite was put into orbit on the night of February 27, 2019, launched from the Kourou base in Guyana by a Russian Soyuz rocket. Rwanda’s telecommunications ministry has formed a partnership with the OneWeb program, an American company based in Arlington, Virginia headed by Greg Wyler, which was carrying out its first launch of 6 dedicated Internet communications satellites.

The satellite called Icyerekezo was built in France, in Toulouse, like the five other satellites of the OneWeb program. Its purpose is to provide high-speed Internet access to St. Pierre Nkombo secondary school, located in the District of Ruzizi Island. It is scheduled to enter service in April 2019.

The president of OneWeb said “Rwanda will be connected with the rest of the world next year around April. We are now focusing on providing 24/7 internet to all over the world. St. Pierre students will be among the beneficiaries, probably in April. They will have free internet access for ten years. After ten years, prices will be negotiated by OneWeb and the Rwandan government depending on the quality of the internet and the competition in the global internet market by then”.

The announcement of the creation of a space agency

A cabinet meeting held on Monday, May 18, 2020 approved a bill establishing the Rwandan Space Agency (RSA), marking a new step for the country towards the promotion of Earth observation technologies.

Few African countries have national space agencies. However, some countries have already taken the step in the past. These include Algeria, Tunisia, Morocco, South Africa, Angola, Egypt, Kenya, Nigeria and Zimbabwe.

Rwanda’s new space agency should be operational by July 2020, according to the Ministry of ICT and Innovation. In August 2020, the Office of the Prime Minister had named Lt. Col Francis Ngabo as the CEO of RSA. And the Agency also created its official Twitter page on December 14, 2020.

Long-term goals

Rwanda’s long-term space program aims to increase the country’s adoption of space technologies and stimulate research and development in space science. The plan was announced with the aim of harmonizing ongoing government collaborations with foreign partners related to space science and technology.

The Government stated that Rwanda considers international cooperation and partnership in the global space arena, in particular active participation in COPUOS, as essential to achieve this goal.

Indeed, in June 2019, Rwanda applied to join the United Nations Committee on the Peaceful Uses of Outer Space (C0PUOS) during the ongoing 62nd session of COPUOS in Vienna, Austria.

Victoire Ingabire Umuhoza highlighted the need for the country to create contingencies of international connectivity, leverage geospatial services for agriculture, urban planning, emergency response and build a knowledge base on space technologies. “This required the creation of a dedicated entity to coordinate these interventions at the national level” she said.

Africa’s space economy is now worth around seven billion American dollars and is expected to grow at a compound annual growth rate of seven percent to exceed ten billion American dollars by 2024, according to the 2019 African Space Industry Report.

Legal Aspects of Detecting Parking Spaces in a Parcel using Satellite Images

With the advent of digital image processing techniques, the world has reaped many benefits such as computerized photography, biological image processing, fingerprints and iris recognition. Machines have acquired a virtual intellectual ability to recognize and distinguish images based on several characteristics that may be impossible for the human eye to perceive. This technological advance was exploited for a particular use case of detecting the number of empty and occupied parking spaces from satellite images of parking lots.

Thanks to algorithmic image processing techniques, it is possible to use satellite images for commercial purposes: to define free or occupied parking spaces. This convolutional neural network model takes as input these preprocessed images and identifies empty and occupied parking spaces with an accuracy of ninety-eight per cent. The potential advantages of using this type of technology is transposable to open parking spaces of different configurations. Placing sensors in a large number of parking spaces in an open space can be a cumbersome and overwhelming task. This proposed new model includes certain advantages, but falls within a regulatory framework defined by the use of satellite remote sensing data.

International legal framework for the collection and distribution of remote sensing data

The first data policy of an observer state was defined in 1972 when the U.S. sent the Landsat satellite. Its mission was to study the environment, as well as the management of the territory and natural resources by providing data with a resolution of eighty meters. It was not until 1984 that the United States of America decided to market the data collected.

France, in 1986 launches the SPOT satellite, the data of which will be marketed by Spotimage, a private company. The SPOT (Satellite Pour l’Observation de la Terre) had a resolution of twenty meters. It therefore appeared necessary to define national rules for access to data and information. The Land Remote Sensing Commercialization Act of July 17, 1984 is the first law adopted by the Americans to redefine national rules for access to satellite data and information.

It was in 1992 that Bill Clinton authorized private companies to use very high resolution satellite imagery systems that were previously reserved for military purposes. Space Imaging thus became the first private operator to operate a satellite with a resolution of one meter, Ikonos. The precision of such imaging systems multiplied the possible uses of this type of data and can represent a major commercial interest.

As a result, an international legislative movement to strike a balance between open market and security took place. The international legal framework for remote sensing was built around a compromise: free observation by States and the protection of their interests.

Resolution 41/65 of April 1986 was adopted by consensus by the Committee for the Peaceful Uses of Outer Space (COPUOS) then by the U.N. General Assembly in December of the same year. The scope of the text is limited to “observation of the Earth’s surface from space for the purposes of improving the management of natural resources, land use planning or protection of the Earth environment”. Not all civilian applications are covered by the text, especially commercial orders. The resolution covers both primary (I. b.), processed (I. c.) and analyzed information (I. d.) data.

The freedom applies whatever the observation technology used (optical or radar) and whatever the resolution of the data. Very high resolution data and imagery that could be used for detecting the availability of a parking space are therefore covered if they fall within the purposes of the definition of remote sensing according to resolution 41/65.

The establishment of an administrative regime

The American administration defined the stakes of its national policy in the Presidential Decision Directive (PDD23) on March 10, 1994. The text aims to promote the development of a data market open to private operators, without endangering U.S. national security and international obligations. This policy is implemented by the Land Remote Sensing Policy Act of 1992.

For its part, France, which wanted to put an end to the informal and non-transparent system for controlling the distribution of data from SPOT satellites, introduced Chapter VII in Law No. 2008-518 of June 3, 2008 on space operations. These two states have fully appreciated the need to control the satellite observation market through a prior administrative procedure and the possibility of imposing restrictions.

In the U.S., for example, a license is required to operate a private remote sensing system. This license is issued by the National Oceanic and Atmospheric Administration (NOAA). Several obligations flow from the license, including the preservation of U.S. national security and respect for U.S. international commitments.

In France, the 2008 law sets up a more flexible system. Any primary operator of space-based data operating in France must send a declaration to the Secretary General of Defense and National Security (SGDSN) at least two months before the start of operation. The operator must also have obtained an authorization to process classified information that could be transmitted.

National laws establish a mechanism allowing States to intervene in the activity of companies to prevent the distribution or collection of data from threatening national security or the international obligations of governments.

The United States of America has opted for a so-called Shutter Control Policy allowing the Commerce Department to impose restrictions on the collection or distribution of data. The operator may be required to provide the U.S. Government exclusively on a commercial basis with the data collected that is subject to restriction.

In France, the SGDSN can prescribe measures such as the immediate, total or partial suspension of programming or reception for a renewable temporary period; the obligation to postpone the programming, reception or production of images for a renewable temporary period; the permanent prohibition of programming or reception, the limitation of the technical quality of the data and the geographical limitation of shooting areas.

Thus, the regulations in force on satellite remote sensing are a strategic issue aimed at ensuring that the activity of the primary operators of data of spatial origin does not undermine the fundamental interests of the nation, in particular national defense, foreign policy and international commitments of the country. If these attacks are not characterized, the regulations on satellite remote sensing do not preclude allowing real-time information on the occupation of a car park for commercial purposes.

Hector, a French rat in space

Let us have a look, for this new Space Legal Issues article, at Hector, the French rat which flew to outer space. The first living being to be taken aboard a V2 rocket at an altitude of one hundred kilometers by the United States of America were leak flies, on February 20, 1947. They came back in great shape. This luck did not smile on Albert II, a young rhesus macaque who was the first primate to cross the limits of the stratosphere in 1949. However its death is not due to his short experience in space, but to a technical fault. The parachutes that were supposed to cushion the fall of the capsule in which the monkey was located did not work.

Laika, four years before Yuri Gagarin, became the first living being to be placed in orbit. However, she died early on her journey. Many other animals have attempted the feat such as Marfusha, a rabbit sent in 1959 by the USSR. The same year, twelve frogs and two mice perished in the explosion of their rocket shortly after takeoff.

A good number of animals paved the way before the mission led by France and it is in this context that the Hector mission took place.

Hector, a French rat in space

This first French experiment was conducted under the aegis of the Scientific Action Committee for National Defense chaired by General Jean Guérin with the help of the Space Research Committee chaired by Professor Pierre Auger.

Hector is a charming white rat that French specialists intend for space travel. For the accomplishment of his high mission, Hector is equipped with a special suit which is fixed by springs to a metal frame. Thus dressed, he was invited to the delights of space training and in particular those of the centrifuge to give a taste of flight without gravity. Six other rats are training at the astronautical medicine center. Like Hector, they will be able to have the honor of taking their place in the cockpit of the Véronique rocket and of making, from the Hammaguir base, near Colomb-Béchar, the one hundred kilometers leap into space. On February 23, 1961, Hector was the first living rat to be launched into space aboard the Véronique AGI-24 rocket.

After the feat of cosmonaut Yuri Gagarin aboard the Vostok 1 mission of April 12, 1961, the journey of a white rat in space may seem outdated. It is not so. Sending and recovering the first man in space is the aerospace equivalent of the first flight of aviation pioneer Clément Ader. The objective of such a mission is to really know that this flight is possible, that it is achievable. Many details useful not only for spatial physiology but also for the physiognomy of man still remain to be studied and unraveled. The French experiments are intended to make a contribution to the very general study of the functioning of the central nervous system and of the equilibration system. To do this, it is necessary to start studies first on small animals such as rats, increase in size of these to reach, if necessary, in humans.

Expected difficulties

Scientists expected many difficulties, notably in recording or interpreting the data. The means of the time were fallible. It was about recovering fine data, and therefore subject to a lot of interference. In fact, the scientists expected disturbances, in particular at the launch of the rocket (in particular because of the vibrations undergone during takeoff) but also on arrival on the ground. Against all expectations, everything worked perfectly from start to finish.

Another difficulty was from the point of view of the accelerations undergone but many tests had previously been carried out in a centrifuge and a good number of studies had been carried out on this subject.

Mission results

Several data were recovered as a result of this mission. First, the sound recording was recovered from inside the rocket itself. Once processed, this recording made it possible to isolate the entire sound spectrum but also the exact intensity. This allows subsequent analyzes to identify the physical effects on Hector. In addition, this recording was collected inside the rocket itself, which makes it a very rare document for the time.

Then a second recording was received directly at the laboratory. It is about the recording of the heartbeat but also of the respiratory sound of Hector. This makes it possible to calculate the variations of these parameters under conditions of micro-gravity.

Also, it was noted the acceleration undergone by the animal during the launching of the rocket as ranging between eight and twelve Gs. However, Hector, due to his position adapted to withstand strong accelerations, supported it very well.

Concerning micro-gravity, scientists have observed from a physiological point of view the absence of muscle tone linked to the absence of gravity.

It is important to note that the passage in microgravity during this mission was about five minutes, which is much superior to the experiments of microgravity that were carried out in plane during which the transition to microgravity was only about twenty seconds.

This mission subsequently resulted in the shipment of larger animals. Félicette was the first cat launched into space on October 18, 1963 as part of the French space program.

C. Leo DeOrsey, the first space lawyer

Let us have a look, for this new Space Legal Issues article, at C. Leo DeOrsey, the first space lawyer. Sixty two years ago this spring, seven young military officers were elected as America’s first astronauts. These seven men were Scott Carpenter, Gordon Cooper, John Glenn, Virgil Grissom, Walter Schirra, Alan Shepard, and Donald Slayton. They became the nation’s Mercury astronauts and were considered as the cream of the crop. As such, Life magazine wrote “the country was introduced to the first Americans – perhaps the first human being – who will orbit in space”.

Within four months, the astronauts signed a special contract for the first space program. In August 1959, Time, Inc., on behalf of Life magazine, paid $500,000 for exclusive rights to the personal stories of selected astronauts and their families. This lifetime contract created an unprecedented deal preventing all other media from covering the personal lives of astronauts. NASA fully approved the contract and assisted in its execution.

Who was C. Leo DeOrsey, the first space lawyer?

On May 2, 1959, the Mercury astronauts signed an agreement with C. Leo DeOrsey, a prominent Washington lawyer, to “sell their story”. The agreement stated that the astronauts agreed that a “joint effort to sell these rights appears to be the most practical approach” and that representation on their behalf should be obtained. The deal made C. Leo DeOrsey their agent, and he would act on their behalf, dividing all funds equally among the seven.

There were two unique clauses in the contract with C. Leo DeOrsey: first, if an astronaut withdrew from the program, he would lose his share of the money; and second, C. Leo DeOrsey has agreed to serve the astronauts without compensation and “will personally defray all expenses incurred for him in this project”.

It’s important to note two things here: first, NASA had a serious precedent for drawing a line between “personal” and “official” stories. After World War II, Returning War Heroes wrote and were paid magazine stories about their military exploits. Frankly, this part of “checkbook journalism” was not uncommon for government – or Life – in the 1950s.

Second, no NASA official signed the contract, making this transaction only between C. Leo DeOrsey and the astronauts. This means that technically and legally astronauts, not NASA, have sold their own personal stories to the highest bidder.

If at any time during the course of Mercury Project, in the judgement of Time, it is decided that the value of the personal stories of the Astronauts and their wives is badly impaired or lost, Time may terminate this agreement by paying to C. Leo DeOrsey on account of the astronauts the sum of seventy thousand dollars.

After just over two months of negotiation, C. Leo DeOrsey signed the contract with Time, Inc. for “all rights of any kind throughout the world in and personal stories of ballistic and orbital flights performed by astronauts during the course and in connection with the Mercury project”. The deal also included the personal stories of the astronauts’ wives, although they did not sign the contract. C. Leo DeOrsey and Robert T. Elson of Time, Inc. signed the contract, and it was filed and recorded in New York on August 5, 1959.

The agreement’s controversies

In the only magazine that analyzed the contract process, Robert Sherrod called this period “one of the most illuminating morality tales of the time”. His review, published fifteen years after the contract was signed, carried a mixed signal. According to him, the media control created by the execution of the first contract between the Mercury 7 astronauts poses four main questions.

First of all, was NASA trying to invoke censorship by recommending the deal?

The contract stipulated that Time, Inc. controlled the content of the stories and images used on the characters of the astronauts. The magazine also reserved the right to approve external writing assignments agreed to by the astronauts’ wives. No material would be released that may be deemed restrictive or secret by NASA officials or the Department of Defense. This statement gave NASA the right to endorse history and, ostensibly, censorship. And while reporters who wrote for Life say NASA rarely invoked this censorship, it was still there. This study will answer this question by examining the media control, defining the parameters of the contract and examining the scope and limits – of reality. NASA’s motivations for participating in the establishment of this contract will also be discussed.

Second, how did the media react in 1959 to the contracting process? Research will show that although the contract has been challenged by news organizations across America, but has never been challenged by a lawsuit or legal action. In fact, initial media coverage of the contract in 1959 was limited to brief mentions in associated press articles and news magazines, and these publications generally died out within a month.

A third question will examine how the contract prohibits rapporteurs from covering all aspects of the Mercury Project. Research will suggest that, throughout the life of the contract and Mercury Project, reporters circumvented the deal, writing personal stories and books about astronauts.

Finally, how important is the contract for the history of journalism in general? How did a four-year contract period change – and challenge – journalists of the 1960s? This is what can be said concerning C. Leo DeOrsey, the first space lawyer.

The International Frequency Registration Board

Let us have a look for this new space law article at the International Frequency Registration Board. Before the Second World War, any country could use, within certain limits, any frequency it required for any particular service, and all that was necessary, with respect to the International Telecommunication Union (ITU), was for the country concerned to notify its use of the frequency to the Bureau at Bern to be published in the Frequency List for the information of other countries. After the Second World War, the situation in regard to the use of the radio spectrum became more chaotic, due to the enormous increase in the use of the radio spectrum by the increased number of countries of the world as a consequence of the birth of many independent countries, as well as to technical progress during the war.

The situation was so confused that sometimes, for example, civil aircraft could not fly safely because the necessary ground-air communication could not be ensured, and broadcasting services became deteriorated by harmful interferences among them. To cope with this situation, the ITU Atlantic City Radio Conference held in 1947 created the International Frequency Registration Board (IFRB) and charged it: to maintain a register of all radio frequencies used for all purposes throughout the world and, to ensure that no new frequency is taken into use by any country if the use of this frequency causes interference to radio stations already in operation, in accordance with the provisions of the Radio Regulations.

The various activities and functions of the International Frequency Registration Board are listed in Article 13 of the International Telecommunication Convention and in Article 8 of the Radio Regulations. In accordance with the above mentioned texts, the essential duties of the International Frequency Registration Board are:

a) the processing of frequency assignment notices received from administrations for recording in the Master International Frequency Register;

b) the processing and coordination of seasonal schedules of high frequency broadcasting with a view to accommodating requirements of all administrations for that service;

c) the compilation, for publication in suitable form, of frequency lists reflecting the data recorded in the Master International Frequency Register, as well as other material relating to the assignment and use of frequencies;

d) the review of entries in the Master Frequency Register with a view to amending or eliminating, as appropriate, those which do not reflect actual frequency usage, in agreement with the administrations which notified the assignments concerned;

e) the study, on a long-term basis, of the usage of the radio spectrum, with a view to making recommendations for its more effective use;

f) the investigation, at the request of one or more of the interested administrations, of harmful interference and the formulation of recommendations with respect thereto;

g) the provision of assistance to administrations in the field of radio spectrum utilization;

h) the collection of such results of monitoring observations and their publication in suitable form;

i) the formulation and reference to the CCIR of all general technical questions arising from the Board’s examination of frequency assignments;

j) the technical planning for radio conferences;

k) the participation in an advisory capacity, upon invitation by the organizations or countries concerned, in conferences and meetings where questions relating to the assignment and utilization of frequencies are discussed;

l) to perform any additional duties, concerned with the assignment and utilization of frequencies.

Harmful interference is one of the major problems in radio communication. As more and more administrations attempt to introduce new communication services in an already congested radio spectrum, greater are the risks of harmful interference. This state of affairs is becoming more serious because, in addition to the rapid expansion of communications, countries which are becoming independent naturally wish to establish their own communication links with the outside world. New or developing countries find it increasingly important to have effective communication centers connected by direct circuits with the major world capitals.

The establishment of those direct communications requires, in many cases, frequencies suitable for high power wide-band transmissions, usually in the most congested part of the radio frequency spectrum. By virtue of its responsibilities, the International Frequency Registration Board spends a considerable amount of time not only in trying to find frequencies for these new circuits, but also in finding solutions to the problems of actual harmful interference between existing services. The International Frequency Registration Board also assists administrations in seeking coordination and organizes seminars and training courses. The International Telecommunication Union considers the problem of harmful interference from the legal, technical, operating and administrative angles.

Legally, the position in this respect is defined in Article 48 of the International Telecommunication Convention (Montreux, 1965). This article requires Members and Associate Members to ensure that “all stations, whatever their purpose, must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Members and Associate Members or of recognized private operating agencies, or of other duly authorized operating agencies which carry on radio service, and which operate in accordance with the provisions of the Radio Regulations”. The same article also states that Members and Associate Members must recognise the desirability of taking all practicable steps to prevent the operation of electrical apparatus and installations of all kinds from causing harmful interference to the radio services or communications mentioned above.

In accordance with the Radio Regulations administrations can seek the assistance of the International Frequency Registration Board when the direct inter-administration approach does not result in a satisfactory solution of cases of harmful interference. In such cases, the International Frequency Registration Board conducts studies and makes recommendations, in accordance with Section VII of Article 9 of the Radio Regulations. In case of need, the International Frequency Registration Board asks administrations of countries in suitable geographical positions to carry out monitoring operations to identify the interfering stations. The Board’s task was facilitated by the prompt information and assistance given by individual administrations and international organizations. The role of the International Frequency Registration Board in resolving matters of harmful interference is outlined in No. 478 of the Radio Regulations, which stipulates that “the investigation, at the request of one or more of the interested administrations, of harmful interference, and the formulation of recommendations with respect thereto”.

The Administrative Radio Conference, Geneva, 1959, adopted a recommendation (Recommendation No. 35) inviting the International Frequency Registration Board to provide administrations of countries in need of special assistance with the necessary information and technical data, including the detailed explanations of the Radio Regulations, which will permit these countries to choose and obtain proper frequency assignments for their operations. The purpose of this recommendation is illustrated by a number of provisions introduced into the Radio Regulations. Under these provisions, the Board shall conduct a study of the following problems of frequency utilization if requested and the circumstances appear to warrant:

a) looking for alternative frequencies to avoid probable harmful interference;

b) searching additional frequencies within a specified portion of the radio spectrum;

c) cases where two or more frequencies in the same megacycle order are used due to harmful interference;

d) alleged contravention or non-observance of the Radio Regulations or harmful interference;

e) computation of the increases in noise temperature in space systems, preparation of diagrams showing coordination areas or any other assistance of a technical nature to complete the procedures of Article 9A.

The International Frequency Registration Board regularly receives requests for assistance from administrations attempting to find suitable frequencies for their radio services. Some administrations seek the advice of the International Frequency Registration Board on general questions of national and international frequency coordination and management in all parts of the radio frequency spectrum. Apart from individual administrations, some international organizations such as the World Meteorological Organization (WMO), ICAO or the International Electrotechnical Commission (IEC) also ask the International Frequency Registration Board for advice on problems of radio spectrum utilization.

Apollo and religion

For this new space law article on Space Legal Issues, let us have a look at the Apollo missions and religion. Astronauts and cosmonauts, and spaceflight participants have observed their religions while in outer space; sometimes publicly, sometimes privately. Religious adherence in outer space poses unique challenges and opportunities for practitioners. Space travellers have reported profound changes in the way they view their faith related to the overview effect, while some secular groups have criticised the use of government spacecraft for religious activities by astronauts.

Apollo 8 and religion: Genesis reading

On December 24, 1968, in what was the most watched television broadcast at the time, the crew of Apollo 8, at the suggestion of Christine Laitin, read in turn from the Book of Genesis as they orbited the Moon. The Bible used was provided by Gideons International. Bill Anders, Jim Lovell, and Frank Borman recited Genesis chapter 1, verses 1 through 10 verbatim, using the King James Version text. Anders read verses 1–4, Lovell read verses 5–8, and Borman read verses 9–10, concluding the transmission.

William Anders

We are now approaching lunar sunrise, and for all the people back on Earth, the crew of Apollo 8 has a message that we would like to send to you. In the beginning God created the heaven and the Earth. And the Earth was without form, and void; and darkness was upon the face of the deep. And the Spirit of God moved upon the face of the waters. And God said, Let there be light: and there was light. And God saw the light, that it was good: and God divided the light from the darkness”.

James Lovell

And God called the light Day, and the darkness he called Night. And the evening and the morning were the first day. And God said, Let there be a firmament in the midst of the waters, and let it divide the waters from the waters. And God made the firmament, and divided the waters which were under the firmament from the waters which were above the firmament: and it was so. And God called the firmament Heaven. And the evening and the morning were the second day”.

Frank Borman

And God said, let the waters under the heaven be gathered together unto one place, and let the dry land appear: and it was so. And God called the dry land Earth; and the gathering together of the waters called the Seas: and God saw that it was good. And from the crew of Apollo 8, we close with good night, good luck, a Merry Christmas – and God bless all of you, all of you on the good Earth”.

First Atheist Offensive

Madalyn Murray O’Hair, founder of American Atheists, responded by suing the United States government, alleging violations of the First Amendment. The suit was filed in the United States District Court for the Western District of Texas. It was submitted to a three-judge panel, which concluded that the case was not a three-judge matter, and dismissed the case for failure to state a cause of action. The direct appeal to the Supreme Court was dismissed for lack of jurisdiction. Another appeal was heard before the Fifth Circuit Court of Appeals, which affirmed the trial court’s dismissal per curiam. The Supreme Court declined to review the case.

Apollo 11 and religion

On Sunday July 20, 1969, moments before Neil Armstrong set foot on the surface of the Moon, his team-mate Buzz Aldrin took the initiative in a sober and rapid ceremony to combine reading of the Gospel and Presbyterian communion. Under pressure from atheist organizations, NASA did everything to conceal this act of faith.

8:17 p.m. (universal time). The Eagle lunar module has just landed on the Sea of Tranquility. On board, Neil Armstrong and Buzz Aldrin must not be overwhelmed by emotion. Their gestures are numbered and timed, while their comrade Michael Collins, aboard the command module, remained in orbit while waiting to recover them. However, despite the intensity of the moment, Buzz Aldrin suspended the proceedings for a few moments. The former U.S. Air Force ace, now an astronaut, grabs a plastic bag from which he extracts a container containing wine, a piece of bread and a small chalice supplied to him by the church. Presbyterian of Webster, located near Houston.

In the microphone that connects him to the NASA command post, he then says a few words: “I ask you for a few moments of silence and I would like to invite people who are listening, who and wherever they are, to stop instant to consider the events of the past few hours, and to give thanks in his own way”. Then he reads an excerpt from chapter 15 of the Gospel of St. John: “I am the vine, and you branch them…” which he had copied by hand on a piece of paper before embarking.

Once these words were spoken, under the gaze of Neil Armstrong, who remained silent, Buzz Aldrin administered himself Presbyterian Communion under a special authorisation issued to him by the Church of Webster. “I poured the wine into a chalice that our church gave me. With a gravity six times less than on Earth, the wine made curves gently and gracefully on the walls of the cup. It was striking to think that the first liquid poured on the Moon, and that the first food absorbed, were the substances of the communion” he will write later. It was, he will also say, his own way of giving thanks and expressing that by exploring space, he was acting in the name of Christ.

No doubt Buzz Aldrin would have liked to give much more impact to his approach, and to repeat on the Moon the gesture of Christopher Columbus, planting a Cross on the sand of the unexplored beaches he was tackling. But political correctness was already at work at the time and NASA had asked it to act discreetly for fear of attracting the wrath of atheist organizations. “Go for it. Communion. But be content with generalist comments” said Deke Slayton, head of the office of astronauts. This is how only the ground crews heard Aldrin’s religious words, and not the general public who was eager for the slightest actions of the three heroes of the lunar conquest.

Second Atheist Offensive

Concerning Apollo missions and religion, it must be said that NASA had been scalded by the actions brought by Madalyn Murray O’Hair, activist of the association American Atheists, who called herself “America’s most hated woman”. She had indeed brought a lawsuit against the state, in the name of the First Amendment, after the three astronauts of the Apollo 8 mission, on December 24, 1968, had read an extract from Genesis during the rotation around the Moon. Previously, this activist had made herself known for her challenge to the compulsory nature of prayers and religious readings in public establishments, and in schools in particular. Now, forbidding astronauts on duty from expressing their faith on Earth, in space and on the Moon was her new workhorse.

Madalyn Murray O’Hair’s offensive in no way reduces the symbolic significance of Buzz Aldrin’s gesture (unlike Catholics, Presbyterians do not believe in transubstantiation: communion is above all a rite which expresses the spiritual presence of God in an assembly, even a reduced one). So every year again in July, Webster’s Presbyterian Church commemorates Buzz Aldrin’s ceremony on “Lunar Communion Sunday”. By invoking Christ by his words and his gestures, the astronaut knew how to restore to the world event that was the first step of man on the Moon its real dimension: a feat without common measure, but which could not make man forget his rank as a creature. That is what can be said concerning Apollo and religion.

Understanding the Rogers Commission Report

For this new space law article on Space Legal Issues, let us have a look at the Rogers Commission Report. On January 28, 1986, seven astronauts were aboard the Space Shuttle Challenger and were preparing to leave for almost a week in space. Their mission was to spend a week in space and send a satellite to observe Halley’s Comet. The Space Shuttle was about to fly its tenth mission, however, seventy-three seconds after takeoff, it exploded. There were no survivors.

The Rogers Commission, from its official name Presidential Commission on the Space Shuttle Challenger Accident is a United States Presidential Commission appointed to investigate the accident. It was created by President Ronald Reagan. This commission was composed of thirteen members including Neil A. Armstrong and Sally K. Ride, and even the Nobel Prize in physics Richard P. Feynman and was chaired by William Rogers (hence his name) who was a former secretary of President Nixon.

The investigation quickly focused on boosters or SRB. These boosters positioned on each side of the main tank, each weigh nearly six hundred tons which, once ignited, cannot be stopped. They deliver phenomenal power to allow the Space Shuttle to tear itself away from Earth’s gravity before separating from it once empty, after about two minutes of flight. They are attached to the main tank by two attachment points. NASA provided the investigation with images of the takeoff and on the side of the right booster, black smoke escaped very clearly. It was therefore not solid fuel that was consumed but something else. This smoke faded during the shot and then after about sixty seconds, a flame came out from this booster, until the total disintegration of the Space Shuttle.

Very quickly, the investigation pointed to one element: the O-rings designed by Morton Thiokol (MT). The explanation then put forward was that these joints would have been consumed at the start of the Space Shuttle’s takeoff. Without this seal, the gases escaped from the hole thus created and this explains the flame which arose later during takeoff. A question then was asked: how was this joint consumed and what are the reasons for it? Richard P. Feynman found the answer.

Richard P. Feynman is a legend in physics. His career began during the Manhattan project (American development project of the atomic bomb). He hesitated for a while before joining this commission, but finally accepted. He had the advantage of being an independent investigator on this case and decided to fully invest it. Richard P. Feynman got to visit the various installations of NASA and the subcontractors involved in the construction of the Space Shuttle, did meticulous work and was quite detached from the rest of the commission. He learned in particular that NASA had a very heavy launch schedule for the shuttles because of the commercial and military contracts to launch satellites. Thus, NASA maintains a very high launch rate per year in order to honour the contracts. This rate is in the order of fifteen launches per year. In this regard, a source close to the Commission of Inquiry revealed that “the Commission is sensitive to the issue of pressure that may be real or perceived by NASA management and that could influence the way people make decisions”.

Assisted by astronaut Sally K. Ride and General Donald J. Kutyna, they will all be interested in the design of O-rings. The night before the flight, the temperature on the launch pad fell below zero which would have resulted in contracting the joints to the point of removing the seal. According to the manufacturer, they were designed to withstand low temperatures. But two testimonies from people working for MT shook everything. One year before the launch of Challenger, Discovery was launched in fairly similar weather conditions: the coldest recorded during a space shuttle launch. Everything went without a hitch but when the boosters were recovered, the seals were damaged. MT engineers therefore recommended to their hierarchy to request the postponement of the launch. MT alerted NASA the day before the launch but nothing was done. NASA officials reacted angrily to this request. The postponement did not take place.

During a public hearing, Richard P. Feynman gave a famous demonstration using a glass filled with ice and a piece of the O-rings. He said “I took this stuff that I got out of your seal, and I put it in ice water. And I discovered that if you put some pressure on it for a while and then undo it, it maintains, it doesn’t stretch back, it stays in the same dimensions. In other words, for a few seconds at least, and more seconds than that, there is no resistance in this particular material when it’s at the wrong temperature. I believe that have some significance for our problem”. Everyone was amazed by this demonstration. One question remained: if the joint had burned out, then why didn’t the Space Shuttle catch fire on the launch pad?

One hypothesis was raised by the experts: that of aluminium slag. Aluminium is added to the fuel of the boosters to increase the thrust during takeoff. This gives rise to ejection from the aluminium tiles in solid form. This aluminium would have filled the hole left by the destroyed seals. The hole would then have been sealed up to the Max Q area where the Space Shuttle is at maximum aerodynamic pressure. There, the Space Shuttle was strongly shaken by a very strong side wind. This hypothesis was supported by telemetric surveys which displayed a lateral force so violent that it was “out of bounds”. This had the consequence of dislodging the aluminium plug which had plugged the leak, releasing the gases from the booster and causing a large flame to appear. This flame consequently led to the disintegration of the Space Shuttle Challenger.

To conclude on the Rogers Commission Report, the final report of the Rogers Commission given to President Ronald Reagan in June 1986 overwhelmed the security policy of NASA, its management and Morton Thiokol. The role of Richard P. Feynman was clearly visible in Appendix F of the report, where he collected his observations and conclusions.

In the Rogers Commission Report, NASA is held for responsible.

The extraterritoriality of American law

The extraterritoriality of American law is the capacity that the United States of America gives itself to enact standards applicable to persons, natural or legal, not American. It is illustrated in several fields, in particular that of international corruption where American standards are imposed thanks to a recurrent application of the Foreign Corrupt Practice Act (FCPA), adopted in 1977.

Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries. Any authority can claim ETJ over any external territory they wish. However, for the claim to be effective in the external territory (except by the exercise of force), it must be agreed either with the legal authority in the external territory, or with a legal authority that covers both territories. When unqualified, ETJ usually refers to such an agreed jurisdiction, or it will be called something like “claimed ETJ”. The phrase may also refer to a country’s laws extending beyond its boundaries in the sense that they may authorise the courts of that country to enforce their jurisdiction against parties appearing before them in with respect to acts they allegedly engaged in outside that country. This does not depend on the co-operation of other countries, since the affected people are within the relevant country (or at least, in a case involving a person being tried in absentia, the case is being heard by a court of that country).

This allows, when talking about the extraterritoriality of American law, the American authorities, in particular the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC), to sanction companies having committed acts of international corruption which can be linked to the jurisdictional power of the United States. The link can be a listing of the company’s stock in the United States of America, or even a simple dollar payment. This text allowed the United States of America to sanction several European companies: Siemens in 2008, Technip in 2010, and Alstom in 2014… In 2018, Sanofi was forced to pay a fine of around twenty-five million American dollars, under the Foreign Corrupt Practice Act (FCPA). Holder of shares listed in the United States of America, the French company has been accused of corruption in the context of several public tenders in the Middle East and Kazakhstan. Latest case to date, Airbus is said to be under prosecution for corruption in the United States of America, Le Monde revealed on December 20, 2018.

Applied to international economic sanctions, extraterritoriality is a legal tool but especially diplomatic and economic without common measure, of which only the Americans are holders. Such sanctions, comparable to measures of economic warfare, must in theory be taken within a multilateral organisation like the United Nations (UN). In particular, the U.N. Security Council can take economic sanctions against a country to maintain or restore international peace and security. When one of the States adopts economic sanctions more important than the organisation, these can then be qualified as individual retaliatory decisions, or even as countermeasures. This is precisely what the United States of America is doing by unilaterally deciding to prohibit other states from trading with a third state, as is the case with Iran today and as was the case for Cuba in 1996.

Under the guise of fighting, one can no longer legitimately, against corruption, money laundering or the financing of terrorism, the United States of America has gradually made its rules of law a weapon of destruction in economic warfare (that they) lead against the rest of the world, including their traditional allies in Europe, as deplored by the authors of a parliamentary report submitted to French Prime Minister Edouard Philippe last June. We are thus witnessing, still according to this document, a proliferation of laws with extraterritorial scope allowing the authorities of the first world power to investigate, prosecute and condemn the commercial practices of businesses and individuals around the world. These procedures violate the sovereignty of the countries of which these actors are nationals, leading to “disproportionate” sanctions with the sole aim of weakening them in international competition.

In fact, on the extraterritoriality of American law, Uncle Sam’s hunting table is edifying and has enough to make you dizzy. Countless banks, like BNP Paribas, Commerzbank, HSBC, Crédit Agricole, ING, or Bank of Tokyo, but also major European industrial flagships, like Siemens, Alstom, Total, or Volkswagen, thus dealt with American justice. In twenty years, continue the authors of the aforementioned report, several tens of billions of dollars in fines have been claimed from foreign entities even though none of their incriminated practices had any direct link with the territory the United States of America. In 2018, Royal Bank of Scotland was fined almost five billion American dollars for its bad practices during the last financial crisis, a shame, the latter having mainly arisen due to the carelessness of American banks. Even the famous Swiss banking secrecy does not resist this widespread racketeering, Crédit Suisse having been fined, four years earlier, a fine of two and a half billion American dollars for having helped several thousand of its customers to defraud the American tax authorities.

To this end and in reaction to the imposition of the secondary sanctions of the United States of America on Iran, the European Union announced to envisage a mechanism of payment by compensation within a vehicle of financing known as SPV. This financial arrangement would isolate any link with the American monetary system, so as not to expose any transaction to American sanctions. If this funding channel is created, it could, in the long term, allow European companies to freely pursue trade with Iran. However, today it seems far-reaching: to preserve their role in international trade, European companies have so far preferred to comply with American sanctions. In addition, the European Union modified its blocking regulation launched in 1996. It therefore leaves European companies with the choice of complying with American law by placing themselves in violation of the regulation, or of being in violation of American law and to be protected by European Union law. But again, all European multinationals have chosen the first option. In addition to a potential fine by a repressive court or an administrative authority, they fear a lack of interest from American or foreign investors (who can constitute a part of their significant shareholding) and the isolation of the American economic and monetary system. That is what can be said concerning the extraterritoriality of American law.

Understanding the Foreign Corrupt Practices Act

The Foreign Corrupt Practices Act (FCPA) is an American law passed in 1977 aimed at combating the bribery of foreign public officials. This law follows an investigation in the 1970s by the American regulator (Securities and Exchange Commission) in the context of the Watergate scandal, during which more than four hundred American companies admitted to having made illegal payments amounting to more than three hundred million American dollars for foreign government officials, politicians and political parties.

Since 1977, this law has been subject to amendments in 1988 and in 1998: the Omnibus Trade and Competitiveness Act of 1988 thus introduced the notion of knowledge to detect breaches of the law, as well as the notions of conscious contempt and willful blindness. This law also introduced the notion of donations in good faith, reasonable and lawful according to the legislation of the foreign countries concerned. The 1998 amendment had as its interest the ratification and incorporation into the American legal system of the OECD Anti-Corruption Convention. It thus made it possible to introduce the concept of extraterritoriality of the law, by extending its field of application beyond the borders of the United States of America.

The Foreign Corrupt Practices Act (FCPA) applies to two broad categories of persons: those with formal ties to the United States of America and those who take action in furtherance of a violation while in the United States of America. U.S. issuers and domestic concerns must obey the Foreign Corrupt Practices Act (FCPA), even when acting outside the country. An issuer is any company that has securities registered in the United States of America or is otherwise required to file periodic reports with the SEC. Domestic concerns is a broader category, encompassing any individual who is a citizen, national, or resident of the United States of America. The category of domestic concerns also includes any corporation, partnership, association, joint-stock company, business trust, unincorporated organisation, or sole proprietorship with its principal place of business in the United States of America or organised under the laws of a State of the United States of America or a territory, possession, or commonwealth of the United States of America. Accordingly, U.S. corporations and nationals can be held liable for bribes paid to foreign officials even if no actions or decisions take place within the United States of America. In the past several years, U.S. enforcement authorities have charged and prosecuted a number of foreign corporations for bribing non-U.S. officials. The DOJ interprets the Foreign Corrupt Practices Act (FCPA) to confer jurisdiction whenever a foreign company or national causes an act to be done within the territory of the United States of America by any person acting as the agent of that company or national.

A violation the Foreign Corrupt Practices Act (FCPA) consists of five elements. That is, a person or organisation is guilty of violating the law if the government can prove the existence of: 1. A payment, offer, authorisation, or promise to pay money or anything of value; 2. To a foreign government official (including a party official or manager of a state-owned concern), or to any other person, knowing that the payment or promise will be passed on to a foreign official; 3. With a corrupt motive; 4. For the purpose of (a) influencing any act or decision of that person, (b) inducing such person to do or omit any action in violation of his lawful duty, (c) securing an improper advantage, or (d) inducing such person to use his influence to affect an official act or decision; 5. In order to assist in obtaining or retaining business for or with, or directing any business to, any person.

A covered individual or entity that violates the Foreign Corrupt Practices Act (FCPA) can be subject to criminal charges by the DOJ, which might lead to imprisonment or a fine, in addition to penalties by the SEC of up to five hundred thousand American dollars or the amount by which the entity profited from the offense. The definitions of payment and foreign official are sufficiently broad to cover virtually any benefit conferred on someone in a position to affect a person’s business dealings with a foreign government. Nonmonetary benefits, including travel and entertainment, fall within the Foreign Corrupt Practices Act (FCPA)’s definition. Likewise, the DOJ has taken the position that employees of state-owned business enterprises are foreign officials for purposes of the Foreign Corrupt Practices Act (FCPA). The statute contains no monetary threshold; even the smallest bribes are prohibited.

Under the terms of the Foreign Corrupt Practices Act (FCPA), a bribe need not actually be paid in order to violate the law. Rather, the Foreign Corrupt Practices Act (FCPA) prohibits the offer, authorisation, or promise to make a corrupt payment in addition to the actual payment. The Foreign Corrupt Practices Act (FCPA) prohibits payments made with a corrupt motive. The legislative history of the statute describes this as an “evil motive or purpose, an intent to wrongfully influence the recipient”. The Supreme Court recently reinforced the notion that a criminal prohibition against corrupt conduct requires a consciousness of wrongdoing, although the Court declined to provide an all-encompassing definition of the statutory term. Truly innocent mistakes are not illegal under the Foreign Corrupt Practices Act (FCPA). In order to constitute a Foreign Corrupt Practices Act (FCPA) violation, a payment must be intended to cause an official to take an action or make a decision that would benefit the payer’s business interest. Note that the business to be “obtained or retained” by the corrupt payment need not be with the government or a government-owned entity. Rather, the Foreign Corrupt Practices Act (FCPA) is violated if a corrupt payment is made in order to facilitate improperly the obtaining or retaining of business with a third party.

Pursuant to its anti-bribery purpose, the FCPA amends the Securities Exchange Act of 1934 to require all companies with securities listed in the U.S. to meet certain accounting provisions, such as ensuring accurate and transparent financial records and maintaining internal accounting controls.

Understanding jus soli and jus sanguinis

For this new article, let us have a look at jus soli and jus sanguinis. The jus sanguinis makes descent the criterion of automatic acquisition of nationality, conceived as a heritage which is transmitted to the descendants. The jus soli is based on the place of birth of the individual. As early as February 23, 1515, the Parliament of Paris made reference to jus soli, which later became the method of determining nationality under the old French law. The French Code civil of 1804, on the other hand, established a jus sanguinis, against the advice of Napoleon. Soil law was not reintroduced into French law until 1889 and has been subject to some fluctuation.

The jus soli in Latin is the rule of law assigning a nationality to a natural person by reason of his birth in a given territory, with or without additional conditions. The “double law of the soil” consists in attributing the nationality of a country to the person born on its territory and of which a parent was also born there: it is therefore an example of law of the soil with additional conditions. In France, nationality law has been governed by the Code civil since 1804: nationality is transmitted by descent, or directly to a child born in France to stateless parents. In 1851, the “double law of the soil” was instituted: any person born in France to a foreign parent who was born there was born in France. The law, however, leaves beneficiaries of dual land rights free to repudiate French nationality by majority by declaration. This faculty will be removed by the law of June 26, 1889 which defines “The Republican use of the law of the soil”. It is article 19 of the French Code civil which enshrines this “double law of the soil” which allows the vast majority of “French people by blood” to easily prove their nationality which would be, without this means, a diabolical proof to establish because it would require to go back to infinity the chain of filiation. In addition, the child of a Frenchman is French, regardless of the child’s place of birth (blood law). However, a child born and having lived at least five years in France of parents both born abroad can become French when they reach the age of majority if they have their usual residence in France. This recognition of French nationality was subject from 1993 to 1998, date of application of the Pasqua-Debré laws to a prior request, it is now automatic (unless refused by the interested party), or from the age of thirteen years old if the parents request it and if the child has lived in France since the age of eight years old.

The “double law of the soil”, when talking about jus soli and jus sanguinis, applied until 1993 to the children of a person born in a former French colony. Since 1993, only the children of parents born in Algeria before 1962 (then French department and not a colony) are concerned. Law n° 2016-274 of March 7, 2016 relating to the right of foreigners in France passed after two years of legislative work, widens by its article 59 the access to French nationality by the law of the soil, by opening French nationality to their majority, to people living on French territory “since the age of six and having followed their compulsory education in France when they have a brother or sister having acquired French nationality”. This law introduces an innovation in French law. It creates a new form of acquisition of French nationality, a derivative, indirect land right, transmitted by the sibling bond, which does not require being born on French territory, but having a brother or sister which became French by the law of the soil.

Continuing on jus soli and jus sanguinis, the law of blood or in Latin, jus sanguinis, is the rule of law attributing to children the nationality of their parents, regardless of their place of birth. This is the dominant principle in most countries. In certain countries of immigration, such as the United States of America, Argentina, Canada, or formerly Australia, children have the nationality of the country by their only birth in the territory, what is called the law of soil (jus soli). These rights are not exclusive and legislation may provide for both. In France, nationality law is organised by the Code civil. Article 18 provides that “A child whose French parent at least is French is French”. The law of the soil was introduced in France in 1515 by a decree of the parliament of Paris (which related to the right of windfall). However, one cannot say that there existed at that time a concept comparable to that contemporary of French nationality which gathers several different rights: that to be régnicole (justiciable of the French royal courts), that of the naturalness (it that is, to be governed by local civil status, which was not a national law but regional customs), and that of citizenship (right to vote and be elected, which was not more uniform since France was a society of orders and communities).

The right of blood for children born to French parents abroad is recognized by the Mabile Judgement, judgement of the Parliament of Paris dated September 7, 1576. In the present case, the case concerned a girl, born in England from parents both French, who was recognized as French on her return to France despite her orphan status (her two parents died before her return to France). Citizenship was declined at different local scales: one could not be a French régnicole person but be able to vote in the municipal elections of the city where one was bourgeois, while a French régnicole who did not yet have his letters of bourgeoisie was considered like a stranger to the city and didn’t vote. In many cities, you had to be a native of the city to be able to claim public service. Under the Old Regime in France, any change in naturalness required royal letters of naturalisation.

It was not until the French Constitution of 1791 that a positive law mentioned the possibility of automatic acquisition of nationality by birth in France: “French sons of foreigners born in France and who live in the kingdom are French”. In 1804, the Code civil, against the wish of Napoléon Bonaparte (Bonaparte wanted any person of foreign origin with a French education to be French) established the primacy of paternal filiation (right of blood or jus sanguinis): “Nationality is now an attribute of the person, it is transmitted like the family name, by descent. It is allocated once and for all at birth, and no longer depends on residence on the territory of France” but nevertheless retains the right of soil (jus soli). Individuals born to foreigners must nevertheless claim French nationality within one year of reaching their majority. This break with tradition had no ethnic dimension but simply meant that the nation being like a big family, we would henceforth attribute nationality like other personal rights (names, property) by transmission by the pater familias.

In 1851, the “double law of the soil” is established. The law of 1889, “against a background of increasing immigration”, marks the return of the simple right of the soil and nationality to its majority for the child born in France who still resides there which combines with the right of blood because “France having become a country of immigration, it could not allow a population of foreigners to grow any longer within it”. It should be noted that proof of French nationality, when it results solely from parentage, is impossible to establish: it is diabolical proof because it would require to go back to infinity the chain of parentage. This is what can be said concerning jus soli and jus sanguinis.

What is UNIDROIT?

UNIDROIT (formally, the International Institute for the Unification of Private Law) is an intergovernmental organisation situated in Rome and whose objective is to harmonise international private law across countries through uniform rules, international conventions, and the production of model laws, sets of principles, guides and guidelines. Established in 1926 as part of the League of Nations, it was reestablished in 1940 following the League’s dissolution through a multilateral agreement, the UNIDROIT Statute. As of 2020, UNIDROIT has sixty-three Member States.

UNIDROIT has prepared multiple conventions (treaties), but has also developed soft law instruments. An example are the UNIDROIT Principles of International Commercial Contracts. Distinctly different from the Convention on the International Sale of Goods (CISG) adopted by UNCITRAL, the UNIDROIT Principles do not apply as a matter of law, but only when chosen by the parties as their contractual regime.

UNIDROIT has a mainly tripartite structure composed of the Secretariat, the Board of Directors and the General Assembly. The Secretariat is the executive body of UNIDROIT which is responsible for the implementation of its Work Program. It is placed under the direction of the Secretary General who is appointed by the Management Board on the proposal of the President of the Institute. The Secretary General is assisted by a team of international civil servants and employees. The Governing Council determines the means of achieving the statutory objectives of the Institute and supervises the work of the Secretariat for the implementation of the Work Program which it establishes.

The Board of Directors is made up of an ex officio member, the President of the Institute, and twenty-five elected members, mainly eminent magistrates, lawyers and university professors as well as national officials. The Governing Council is chaired by the President of the Institute who is an ex officio member of the Council. The General Assembly is the supreme decision-making body of UNIDROIT; it votes the annual budget of the Institute, approves its Work Program every three years and appoints the members of the Board of Directors for a five-year term. It is composed of a representative of the Government of each member state. The Presidency of the General Assembly is held, in rotation and for one year, by the Ambassador of a Member State of the Organization.

Since its creation, UNIDROIT has developed nearly seventy studies and projects. Many of these works have resulted in international instruments, including international conventions, model laws, Principles and Contractual Guides. The conventions were adopted at diplomatic conferences convened by Member States of UNIDROIT. The work of UNIDROIT is also the source of a number of international instruments which have been adopted under the auspices of other organizations. Among these, several are already in force.

The object of UNIDROIT as defined in its Organic Statute is the development of modern uniform rules and, where appropriate, harmonised, of private law lato sensu. However, given the difficulty of drawing precise limits and given the overlapping of transactional and regulatory aspects, forays into public law are occasionally necessary. The rules drawn up by UNIDROIT also belong to substantive private law; they contain conflict of laws rules only incidentally. UNIDROIT’s independent status among intergovernmental organizations has enabled it to adopt an approach which has made it a forum particularly suited to dealing with the more technical than political aspects of legal harmonisation or unification.

Technological and commercial innovations which tend to be transnational by their very nature call for new solutions, which must be harmonised and widely acceptable. As a general rule, the choice of a subject with a view to harmonisation or unification depends to a large extent on the willingness of States to consider modifying their internal law by favouring, for a given subject, a new solution adopted internationally. This fact should therefore be taken into account, in addition to the legal and other arguments which militate in favour of the harmonisation of a specific subject. These considerations also come into play when defining the scope of the rules, depending on whether they are intended to govern only cross-border situations or operations or whether they must also extend to purely internal situations or operations. Although commercial law matters relate to most international harmonisation initiatives, UNIDROIT’s broad mandate allows it to also deal with non-commercial matters.

Due to the intergovernmental nature of the organisation, the rules drawn up by UNIDROIT traditionally take the form of international conventions, the application of which prevails over that of Internal Law as soon as their conditions of application are met under the law of the State concerned. However, there is an increasing use of other forms of unification in areas where a binding instrument is not considered essential. These include model laws that States can take into account when preparing national regulations in the subject matter, or general principles intended directly for judges, arbitrators and contracting parties, which remain in any event free to use. When the development of uniform rules seems premature, recourse may be had to the form of a legal guide, particularly with regard to new commercial techniques, or new contractual schemes or even for the organisation of markets, both at national and national level. As a general rule, “binding” solutions (namely the Conventions) are necessary when the regulations envisaged go beyond the bipartite relations at the source of ordinary contract law and when the rights of third parties or interest are at stake, as is the case with property law. The choice of subjects for the UNIDROIT Work Program, the degrees of priority and the working methods, as well as the broad lines of the activities follow the criteria and the strategic objectives of the Institute, in accordance with its Strategic Plan.

The official languages of UNIDROIT are English, French, German, Italian and Spanish; its working languages are English and French. UNIDROIT has been designated as the Depositary to its most recent instruments: the 2001 Cape Town Convention, the 2001 Aircraft Protocol, the 2007 Luxembourg Rail Protocol, the 2012 Space Protocol, as well as the 2009 UNIDROIT Convention on Substantive Rules for Intermediated Securities. UNIDROIT’s responsibilities as Depositary under those instruments are specified in each instrument, and include the operation of a system for the receipt and notification of all instruments of ratification, declarations and other documents lodged with the Depositary. UNIDROIT provides information for the assistance of States that are contemplating becoming Contracting States to them.

The female space quartet

For this new article on Space Legal Issues, let us have a look at the female space quartet, the first time four women were in outer space at the same time. The merging of two crews marked the first time four women were in outer space at the same time, the first female space quartet: Discovery’s three women astronauts, and Expedition 23 Flight Engineer Tracy Caldwell Dyson. The Japan Aerospace Exploration Agency (JAXA) also marked the first time two of its astronauts were in outer space simultaneously, when Yamazaki met up with station Flight Engineer Soichi Noguchi. Discovery (STS-131) delivered supplies and equipment to the International Space Station (ISS), more than seventeen thousand pounds of it stowed inside the Italian-built multi-purpose logistics module Leonardo. The payload included new crew sleeping quarters, an ammonia tank, gyroscope and experiments. The module’s next and final journey to the International Space Station (ISS) was on a one-way trip, when it attached and left on the station during the STS-133 mission.

STS-131 was a NASA American Space Shuttle mission to the International Space Station (ISS). Space Shuttle Discovery launched on April 5, 2010 from Kennedy Space Center’s launch pad 39A, and landed on April 20, 2010 on runway 33 at the Kennedy Space Center’s Shuttle Landing Facility. The mission marked the longest flight for Space Shuttle Discovery. The primary payload was a Multi-Purpose Logistics Module loaded with supplies and equipment for the International Space Station (ISS). The mission also removed and replaced an ammonia tank assembly outside the station on the S1 truss. STS-131 furthermore carried several on-board payloads; this mission had the most payloads since STS-107. It is also the last shuttle mission with a crew of seven astronauts.

The crew was made up of seven members including three women who are Dorothy M. Metcalf-Lindenburger, Stephanie Wilson, and Naoko Yamazaki (who was the last Japanese astronaut to fly on the Space Shuttle). This mission has been special in many ways: this was the final Space Shuttle mission with a seven person crew, it was the final Space Shuttle crew with any “rookie” astronauts; all of the remaining missions would have all-veteran crews. STS-131 was also the third and last mission in the Space Shuttle program with three female astronauts. STS-40 and STS-96 were the first two. STS-131 marked the first time two Japanese astronauts, Naoko Yamazaki from the shuttle crew and Soichi Noguchi on the International Space Station (ISS), were in outer space together. Expedition 23 Flight Engineer Tracy Caldwell Dyson was on the International Space Station (ISS) at the time. This made STS-131 the first time when four women have been in outer space at the same time. Four intrepid women with the “right stuff” have at that time sailed into the world record books as the most female astronauts ever to fly in outer space at the same time. The first woman in outer space was cosmonaut Valentina Tereshkova, who launched in June 1963 on the former Soviet Union’s Vostok mission. The first American woman in outer space came two decades later, in June 1983, when astronaut Sally Ride rode the American Space Shuttle into orbit on the orbiter Challenger.

For this STS-131 mission, continuing on the female space quartet, Discovery embarked in its hold the MPLM Leonardo pressurised module (Multifunctional Pressurized Logistical Module), developed by Thales Alenia Space on behalf of the Italian Space Agency (ASI). This habitable module carried eight tones of equipment including scientific experiments and freight for the International Space Station (ISS) and its scientific laboratories. It was the last time that NASA would use it since it would be permanently attached to the International Space Station (ISS) during the last flight of the American Space Shuttle (STS-133).

Three extravehicular excursions took place: EVA 1, 2 and 3. EVA 1: April 9, the crew inside used the station’s robotic arm to remove a new ammonia tank from shuttle’s payload bay and temporarily stow it on the station. The spacewalkers then retrieved a seed experiment from outside the Japanese laboratory, installed a grapple bar to the new ammonia tank on the station’s truss and replaced a failed gyroscope that was part of the station’s navigation system, along with several get-ahead tasks. EVA 2: April 11, the crew members, using the station’s arm, removed an empty ammonia tank from the station’s truss and temporarily stowed it on an equipment cart. The new tank was then installed and electrical connections were made to it. The station’s arm then temporarily stowed the old tank on another part of the station’s structure until the mission’s third spacewalk. EVA 3: April 13, using the station’s arm, the crew moved the old tank into the shuttle’s payload bay for return to Earth. The spacewalkers also removed a grapple bar from the old ammonia tank and attached it to the new one. The pair then relocated a foot restraint and some tools and prepared some cables for the STS-132 mission.

The controllers had planned a fourth EVA which was finally cancelled. Nonetheless, all three spacewalks were made by Richard Mastracchio and Clayton Anderson. April 16, the Leonardo module was returned to Discovery’s hold. Before parting from the International Space Station (ISS), the astronauts re-inspected the Orbiter’s heat shield. Normally, this inspection is done after separation, but the breakdown of the Ku-Band antenna obliged managers to take advantage of the broadband antenna of the station to perform this inspection. April 17, Discovery separated from the International Space Station (ISS). April 18, the last day of flight, awaiting the return for the next day at the KSC in the early morning. April 19, the return was postponed due to bad weather conditions on the space center. Discovery reached the ground the next day after a mission of fifteen days, two hours, forty-seven minutes and ten seconds. Three more flights before the American Space Shuttle would retreat.

After stepping off the shuttle following landing, Anderson, who participated in the mission’s three spacewalks, may have summed up the mission best: “We had a lot of adversity, but we overcame it all with some great teamwork”. While perfect missions are preferable, those that involve a few changes in the game plan can sometimes yield valuable lessons about working in outer space. This is what can be said concerning the female space quartet.

Understanding the Asylum Case

Peru issued an arrest warrant against Victor Raul Haya de la Torre “In respect of the crime of military rebellion” which took place on October 3, 1949, in Peru. Three months after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with Article 2 of the Montevideo Convention on Political Asylum of 1933 (the term “refugee” is not the same as the Refugee Convention of 1951). Peru refused to accept the unilateral qualification and refused to grant safe passage. (1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under treaty law and international law? (2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage? (3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter called the Havana Convention) when it granted asylum and is the continued maintenance of asylum a violation of the treaty?

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of asylum under treaty law and international law? The court stated that in the normal course of granting diplomatic asylum a diplomatic representative has the competence to make a provisional qualification of the offence (for example, as a political offence) and the territorial State has the right to give consent to this qualification. In the Torre’s case, Colombia has asserted, as the State granting asylum, that it is competent to qualify the nature of the offence in a unilateral and definitive manner that is binding on Peru. The court had to decide if such a decision was binding on Peru either because of treaty law (in particular the Havana Convention of 1928 and the Montevideo Convention of 1933), other principles of international law, or by way of regional or local custom. The court held that there was no expressed or implied right of unilateral and definitive qualification of the State that grants asylum under the Havana Convention or relevant principles of international law. The Montevideo Convention of 1933, which accepts the right of unilateral qualification, and on which Colombia relied to justify its unilateral qualification, was not ratified by Peru. The Convention, per say, was not binding on Peru and considering the low numbers of ratifications the provisions of the latter Convention cannot be said to reflect customary international law. Colombia also argued that regional or local customs support the qualification. The court held that the burden of proof on the existence of an alleged customary law rests with the party making the allegation: “The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party (that) it is in accordance with a (1) constant and uniform usage (2) practiced by the States in question, and that this usage is (3) the expression of a right appertaining to the State granting asylum (Colombia) and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the Statute of the Court, which refers to international custom as evidence of a general practice accepted as law”.

The court held that Colombia did not establish the existence of a regional custom because it failed to prove consistent and uniform usage of the alleged custom by relevant States. The fluctuations and contradictions in State practice did not allow for the uniform usage. The Court also reiterated that the fact that a particular State practice was followed because of political expediency and not because of a belief that the said practice is binding on the State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary law: “The Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in fact granted and respected. But it has not shown that the alleged rule of unilateral and definitive qualification was invoked or that it was, apart from conventional stipulations, exercised by the States granting asylum as a right appertaining to them and respected by the territorial States as a duty incumbent on them and not merely for reasons of political expediency. The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence”.

The court held that even if Colombia could prove that such a regional custom existed, it would not be binding on Peru, because Peru “Far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence [as “political” in nature] in matters of diplomatic asylum”. The court concluded that Colombia, as the State granting asylum, is not competent to qualify the offence by a unilateral and definitive decision, binding on Peru.

(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage? The court held that there was no legal obligation on Peru to grant safe passage either because of the Havana Convention or customary law. In the case of the Havana Convention, a plain reading of Article 2 results in an obligation on the territorial state (Peru) to grant safe passage only after it requests the asylum granting State (Colombia) to send the person granted asylum outside its national territory (Peru). In this case the Peruvian government had not asked that Torre leave Peru. On the contrary, it contested the legality of asylum granted to him and refused to grant safe conduct. The court looked at the possibility of a customary law emerging from State practice where diplomatic agents have requested and been granted safe passage for asylum seekers. Once more, the Court held that these practices were a result of a need for expediency and other practice considerations over an existence of a belief that the act amounts to a legal obligation. “There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately requests a safe conduct without awaiting a request from the Territorial State for the departure of the refugee, but this practice does not and cannot mean that the State, to whom such a request for safe-conduct has been addressed, is legally bound to accede to it”.

(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and is the continued maintenance of asylum a violation of the Treaty? Article 1 of the Havana Convention states that “It is not permissible for States to grant asylum to persons accused or condemned for common crimes (such persons) shall be surrendered upon request of the local government”. In other words, the person-seeking asylum must not be accused of a common crime (for example, murder would constitute a common crime, while a political offence would not). The accusations that are relevant are those made before the granting of asylum. Torre’s accusation related to a military rebellion, which the court concluded was not a common crime and as such the granting of asylum complied with Article 1 of the Convention. Article 2 of the Havana Convention states that “Asylum granted to political offenders in legations, warships, military camps or military aircraft, shall be respected to the extent in which allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws of the country in which granted and in accordance with the following provisions: First: Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety”. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the presence of “An imminent or persistence of a danger for the person of the refugee”. The Court held that the facts of the case, including the three months that passed between the rebellion and the time when asylum was sought, did not establish the urgency criteria in this case. The Court held: “In principle, it is inconceivable that the Havana Convention could have intended the term “urgent cases” to include the danger of regular prosecution to which the citizens of any country lay themselves open by attacking the institutions of that country. In principle, asylum cannot be opposed to the operation of justice”.

In other words, Torre was accused of a crime but he could not be tried in a court because Colombia granted him asylum. The court held that “Protection from the operation of regular legal proceedings” was not justified under diplomatic asylum. The court held: “In the case of diplomatic asylum the refugee is within the territory of the State. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case”. As a result, exceptions to this rule are strictly regulated under international law.

An exception to this rule (asylum should not be granted to those facing regular prosecutions) can occur only if, in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims. Asylum protects the political offender against any measures of a manifestly extra-legal character which a government might take or attempt to take against its political opponents. On the other hand, the safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals. Protection thus understood would authorize the diplomatic agent to obstruct the application of the laws of the country whereas it is his duty to respect them. Such a conception, moreover, would come into conflict with one of the most firmly established traditions of Latin-America, namely, non-intervention (for example, by Colombia into the internal affairs of another State like Peru).

Asylum may be granted on “humanitarian grounds to protect political prisoners against the violent and disorderly action of irresponsible sections of the population” (for example during a mob attack where the territorial State is unable to protect the offender). Torre was not in such a situation at the time when he sought refuge in the Colombian Embassy at Lima. The court concluded that the grant of asylum and reasons for its prolongation were not in conformity with Article 2 of the Havana Convention. “The grant of asylum is not an instantaneous act which terminates with the admission, at a given moment of a refugee to an embassy or a legation. Any grant of asylum results in, and in consequence, logically implies, a state of protection, the asylum is granted as long as the continued presence of the refugee in the embassy prolongs this protection”.