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“.
“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.
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“.
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.
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.