ESA, Europe and the USA

For this new article on Space Legal Issues, let’s have a look at the relationship between ESA, Europe and the USA.

The European Space Agency

Concerning ESA, Europe and the USA, all the European agencies and other European states co-operate in the programs of the European Space Agency (ESA), with which the Canadian Space Agency has a co-operation agreement. The European Space Agency is a major actor in the exploration and use of space.

It also participates in the formation of space law through the internal procedures that it has evolved, through the negotiation of international agreements and through its implementation of international space practices. As its title indicates, it is an international organisation. Immediately after the Second World War, some European states had their own separate programs in rocketry and other technologies. Thus UK efforts to develop in rocketry produced the “Blue Streak” and “Black Knight” programs, but these were not very successful.

By the late 1950s it was clear that co-operation within Europe was necessary to match the financial, technical and intellectual resources of the U.S.S.R. and the United States of America. Europe did not want to be left behind. Thus in the early 1960s, Europe was instrumental in the creation of INTELSAT as an international endeavour, protecting its nascent space industries, but steps had already been taken to bring European space activities together. In 1960, the Council of Europe recommended the creation of a European agency to promote the peaceful uses of outer space and to develop and build a space vehicle.

To that end a European Preparatory Commission on Space Research (COPERS) was set up in 1960. COPERS discussed whether a single European agency should bring forward all European space efforts but decided that launches should be dealt with by a separate organisation, in part because not all European states were as interested in launchers as opposed to space technology. In 1962, therefore, a Convention for the Establishing of a European Organisation for the Development and Construction of Space Vehicle Launchers (ELDO) was adopted, followed by a Convention for the Establishment of a European Space Research Organisation (ESRO), with slightly different parties.

However, the ESRO experience was not happy. In due course, it was appreciated that having two European “space” organisations was not useful, so in 1975 ESRO and ELDO were fused to form the European Space Agency by the Convention for the Establishment of a European Space Agency (ESA), the new organisation working informally for some years before the Convention actually came into force.

Apart from the initial membership, accession is competent provided that all existing members so agree (Art. XXII). Denunciation of the Convention is competent, though financial dues remain exigible for the period until the denunciation takes effect (Art. XIV). The Agency may be dissolved by agreement of its members, and shall be dissolved if its membership drops to less than five (Art. XXV).

On, ESA, Europe and the USA, the purpose of ESA is the promotion of European space research, technology and applications (Art. II). This involves co-operation and the internationalisation of national space programs. To that end, members are obliged to notify ESA of their plans for civil space activity and, within the framework of the Agency, to make available co-operation with other members, though not to the exclusion of co-operation with non-ESA members (Annex IV). ESA itself has operational competence (Art. V).

In respect of ESA activities themselves, due regard is had to the distribution of procurement and other contracts, establishments, facilities, etc. to reflect contribution to ESA activities (Arts. VII and VIII and Annex V). Collaboration with space and other agencies is competent and in practice encouraged (Art. XIV). The exchange of information and data between the Agency and all member states is to be facilitated (Art. III), as is the exchange of personnel (Art. IV).

Technical data and inventions that are the property of the Agency are disclosed to all members and may be used by them free of charge (Art. III). The ESA structure comprises the Council and a Directorate under a Director-General (Art. X). The Council is composed of all members, meeting as required at either delegate or ministerial level (Art. XI). It adopts policy and approves activities and budgets (Art. XI). ESA activities are divided into mandatory activities in which all parties take part and optional activities where a member state may formally declare itself non-participant (Art. V).

The Director General is appointed for a defined term by a two-thirds majority of the Council and may be removed. Assisted by technical and other staff, he is the chief executive officer of the Agency, its legal representative, and is responsible for the implementation of the decisions of Council, the programs and the running of the various establishments in which ESA work is carried out (Art. XII).

The responsibilities of the Director General and staff are exclusively international and they neither seek nor receive instructions from states or agencies other than ESA. States undertake not to seek to influence staff in the discharge of their duties (Art. XII). ESA and its mandatory programs are financed by its members in three-yearly tranches in accordance with a scale relating to national income for the previous three years, no member being, however, required to pay more than twenty-five percent of the total (Arts I, XIII and Annex II).

Optional programs are financed similarly by their participant members (Art. XIII and Annex III). There is provision for dispute settlement by arbitration (Art. XVII). As now constituted, ESA is the main European intergovernmental organisation engaged in space. It must also be noted that, however, other European collaborative agencies also have space interests.

The European Union

Continuing with ESA, Europe and the USA, the other major institution affecting and to a degree now determining European space policy is the European Union. In 2003, a Framework Agreement between the then European Community and ESA was drafted and entered into force in 2004, as the first step toward a formal EU stance as to space and the creation of a Space Council. A White Paper on European Space Policy was also published in 2003.

These steps were followed by a Council resolution on space policy of 2007 aimed at the better co-ordination of space activities between ESA, the EU and their member states. The process has continued with the amendment of the EU basic documents by the Lisbon Treaty of 2009 to include space competence as an EU function.

Recently, the European Commission (EC) published a communication “towards a Space Strategy for the European Union that benefits its citizens”. In this document, the EC emphasises the political and societal role of Space for Europe. Article 189 of the Lisbon treaty confers on the Union a shared space competence. Referring to this new competence, the EC aims at coordinating EU Space programs to counteract a fragmentation of EU Space activities.

To reach this, the EC wants on the one hand to strengthen cooperation with the EU member states, and on the other hand, to consider new rules for cooperation with the European Space Agency (ESA). The role of the ESA should become more flexible in terms of membership and participation opportunities in its programs. Furthermore, a co-existence of civil and military programs should be realised at the ESA.

The European Commission also wants to set up its own Space program with topics based on demands from past Space Councils, the joint ministerial committee of EC and ESA. Aside Galileo, EGNOS and GMES (with its application fields environment and security), security of space assets, critical technologies and exploration are in the focus here. Special roles take the International Space Station (ISS), where all EU member states should get access to, and Kourou which, being Europe’s spaceport, plays a key role in Europe’s independent access to outer space. A high-level international forum is thought to be set up to identify exploration opportunities of international relevance and finally support political decision making.

The United States of America

Finally, on ESA, Europe and the USA, the views and practices of the United States of America heavily influence and interact with space law, though with the rise of other major space-competent states that influence may wane. US space policy is set by the President, and has obvious implications for space law.

President Kennedy’s setting of the goal of getting to the Moon and back by the end of the 1960s was, of course, a major impetus to technical development. Since then, various presidential and congressional commissions have had an effect on space policy, and therefore on law.

Within the US Government, responsibilities at the federal level depend on the nature and impact of the space technology involved. Treaties go through the appropriate procedures for their negotiation, ratification and implementation, and usually will involve the State Department. Naturally, the Defense Department and the military authorities are heavily involved in space matters.

In that most satellites require radio for their functioning, the US Federal Communications Commission (FCC) is engaged both in licensing and in international negotiations such as the various ITU conferences. Licensing space activities is mainly the responsibility of the Federal Aviation Administration, part of the Department of Transportation.

Commerce, environmental agencies and transportation have other obvious space interests. However, the US agency with which space is most clearly associated in the public mind, is the National Aeronautics and Space Administration, NASA. The National Aeronautics and Space Administration (NASA) is an independent agency of the United States Federal Government responsible for the civilian space program, as well as aeronautics and aerospace research.

NASA was established in 1958, succeeding the National Advisory Committee for Aeronautics (NACA). The new agency was to have a distinctly civilian orientation, encouraging peaceful applications in space science. Since its establishment, most U.S. space exploration efforts have been led by NASA, including the Apollo Moon landing missions, the Skylab space station, and later the Space Shuttle. NASA is supporting the International Space Station and is overseeing the development of the Orion Multi-Purpose Crew Vehicle, the Space Launch System and Commercial Crew vehicles. The agency is also responsible for the Launch Services Program which provides oversight of launch operations and countdown management for unmanned NASA launches.