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     ‘Article VI of the Outer Space Treaty: Issues and Implementation’

It was already for the third time, that the     Galloway‟s career, as she had always laid
last month of the year in Washington,           the greatest importance in her work and
D.C., witnessed a Symposium on Critical         writings on international cooperation for
Issues in Space Law being held in honour        the peaceful uses of outer space.
of Dr. Eilene M. Galloway. This time            On behalf of the third main sponsor of the
discussing “Article VI of the Outer Space       Symposium, Arianespace Inc., Mr. Mowry
Treaty: Issues and Implementation”, the         provided an overview of some current
Symposium (organised by the National            developments in space activities and
Center for Remote Sensing, Air and Space        space law. He noted that, while „change‟
Law at the University of Mississippi School     was a very popular word these days in
of Law, the Journal of Space Law, the           Washington, the question for space would
International Institute of Space Law (IISL)     still be whether such change would be
and Arianespace, Inc.) took place 11            going in the right direction. In terms of
December 2008 at the Cosmos Club in             today‟s issues with space activities, and in
Washington,       attracting    some     60     particular (with an eye to the theme of the
participants in the process.                    symposium) those resulting from the
Dr. Eilene M. Galloway is generally             increasing       commercialisation      and
considered to be one of the founding            privatisation of many space activities, he
giants of space law, as one of the leading      noted problems with the allotment of
participants in the legislative process on      frequencies and slots with the ITU (which
the national US level leading to the            in one case has some 400 applications
establishment of NASA in 1958 and               filed for the same slot), and with the total
subsequently one of the great contributors      lack of international coordination of the
to the evolution of space law at the            launch services sector now that the launch
international level through the UN space        services agreements of the early 90‟s with
treaties of the 60‟s and 70‟s and beyond.       Russia, China and the Ukraine had all
                                                expired as the global environment has
The Symposium kicked off by opening             changed profoundly.
remarks on behalf of the various
organizing      entities.    Thus,      Prof.   As Dr. Galloway herself had not been able
Gabrynowicz welcomed the participants           to join the Symposium, her son, Prof.
on behalf of the National Center for            Galloway, presented a message of
Remote Sensing, Air and Space Law and           welcome and thanks on her behalf. He
the Journal of Space Law, explaining the        noted in particular the appropriateness of
history and background of the Symposium.        the Symposium‟s theme with a view to the
She pointed to the fact that the first          career of his mother, with one of the key
symposium had been held two years ago           features of Article VI being the
to celebrate the hundredth birthday of Dr.      requirement       of     authorisation       and
Galloway, and had been such a success           continuing       supervision        of      non-
that the Center and the Journal had been        governmental entities‟ „national activities‟
stimulated to organise a second, and now        in outer space.
a third symposium.                              In this context, the discussion of Article VI
Mrs. Masson-Zwaan, President of the             of the Outer Space Treaty – providing
International Institute of Space Law (IISL),    essentially for international responsibility
highlighted in her welcoming remarks the        of states for their national activities in outer
reflection of international cooperation in      space – was a very appropriate theme in
the Symposium and its themes over the           the context of the obligations of mankind,
past few years, pointing in particular to the   in particular the leading spacefaring
presence of participants also from other        nations, to use outer space responsibly,
parts of North and South America, as well       which have always been defended
as Europe – notably from the European           staunchly by Dr. Galloway. During the
Centre for Space Law (ECSL). Also this          negotiations leading to the final text of this
could be judged reflective of Dr.               Treaty, perhaps the most salient question
raised was whether both governments and             „state responsibility‟ and „international
nongovernmental          actors could       be      responsibility‟ as per Article VI of the Outer
recognized       as      legitimate      space      Space Treaty in those three different
actors. Article VI, stating that “activities of     areas. In response to a question from the
non-governmental entities shall require             audience bringing up the concept of the
authorization and continuing supervision            „common heritage of mankind‟ finally, the
by the appropriate State Party to the               speaker clarified that that concept should
Treaty” is the compromise that recognizes           not be seen as interchangeable with that
both as legitimate space actors, as part of         of the „province of all mankind‟ – a concept
the broader focus on responsible usage of           indeed officially referred to in the Outer
outer space.                                        Space Treaty.
Since the text of Article VI was repeatedly         The second speaker of the session was
put up on the powerpoint screen during              Prof. Von der Dunk, who addressed the
various presentations in order to remind            subject of “Article VI of the Outer Space
the audience and the discussants of the             Treaty in the European Context”. Whilst
exact wording, it is appropriate also to            noting at the outset that there was no such
reproduce that text here:                           thing as a European context for – let alone
                                                    a European approach to – Article VI, he
     States Parties to the Treaty shall bear        proceeded to discuss the various
     international responsibility for national      European levels at which outer space
     activities in outer space, including the       activities were addressed (the European
     Moon and other celestial bodies, whether       Space Agency, the European Community,
     such activities are carried on by              then Union, and the „geographical Europe‟
     governmental agencies or by non-               as this included Russia and the Ukraine).
     governmental entities, and for assuring
                                                    In addition, noting the fundamental
     that national activities are carried out in
     conformity with the provisions set forth in    absence of any comprehensive authority
     the present Treaty. The activities of non-     at any of those levels to replace the
     governmental entities in outer space,          individual sovereignty of (member) states
     including the Moon and other celestial         in dealing with Article VI at their national
     bodies, shall require authorization and        discretion, he also discussed those states
     continuing supervision by the appropriate      where Article VI had given rise to
     State Party to the Treaty. When activities     establishment of a more or less
     are carried on in outer space, including       comprehensive national space law – in
     the Moon and other celestial bodies, by an
                                                    chronological order: Norway, Sweden, the
     international organization, responsibility
     for compliance with this Treaty shall be       United Kingdom, Russia, the Ukraine,
     borne     both    by     the   international   Belgium, the Netherlands and France.
     organization and by the States Parties to      Comparing those pieces of national law
     the     Treaty   participating    in   such    using five aspects – their scope in terms of
     organization.                                  (space) activities ratione materiae; their
                                                    scope in terms of license obligation ratione
The first speaker of the first substantive          personae; how they dealt with issues of
session, on “Article VI: The Legal                  liability and insurance; the licensing and
Landscape”, was Prof. Gabrynowicz,                  registration authority(/ies); and their
providing     an      “Overview     of    State     respective implementation experience –
Responsibility in a Global Commons”. She            the speaker came to the somewhat ironic
noted that, whilst the concept of a „global         conclusion that the two European national
commons‟ was nowhere authoritatively                space laws that were most identical to
defined in international law treaties or            each other were the Russian and
other documents, few would dispute that             Ukrainian ones, for obvious historic
this was what the 1967 Outer Space                  reasons.
Treaty referred to in an indirect manner. In        The third speaker of the session was Prof.
that context, usually concepts such as res          Jakhu, who spoke about “Implementation
communis or terra communis were used,               of Article VI of the Outer Space Treaty in
but they essentially amounted to the                North America”. Addressing, from this
same. She then noted that currently there           perspective, essentially developments in
would be three areas falling under that             the United States and Canada, he defined
heading: Antarctica, the high seas and              implementation as incorporation in,
space; and proceeded to analyse the                 alternatively giving effect under, national
application of the general concept of               law to a provision of international law. He
„responsibility‟ in its various incarnations of     furthermore noted in this regard that the
traditional      requirement       of     state   This was not only a matter of de facto
responsibility under general international        control; there were also international
law, of imputability / attributability of a       agreements operative in the „triangle‟ of
certain act as a „state act‟ to a certain         key         stakeholders             France-ESA-
state, has been done away with in space           Arianespace. As for Eutelsat, since until
law as per Article VI. From the                   relatively      recently       it      was     an
international perspective therefore, there is     intergovernmental organisation, it had only
not so much a difference between public           been affected by national electronic
and private activities, but between               communications regulations. With the
“national activities” and „non-national‟, in      fundamental reorganisation of the French
other words „international‟ activities. He        „spacescape‟, however, CNES now was
highlighted in this respect that „national        no      longer    allowed         to    undertake
activities‟ at the time of drafting the clause    commercial activities, and a law was
was meant to include everything linked or         necessary to deal with future private space
connected to a state or its national or its       activities falling within French jurisdiction.
territory or its facilities. Coming to the        Since Arianespace is already authorised
issue of implementation proper finally, he        through the aforementioned international
analysed that Canada had followed very            agreements,        it     does      not    require
much the US approach in terms of                  authorisation under the new law, whereas
enunciating national space legislation.           Eutelsat was also provided with a general
The last speaker of that session was Mrs.         license extending the existing situation,
Masson-Zwaan. She discussed “Article VI           but any other space activities should be
of the Outer Space Treaty and Private             covered by the new law, the provisions of
Human Access to Space”, by starting to            which he finally analysed in considerable
refer to Article I of the Outer Space Treaty      detail.
as that declared space to be the “province        The second speaker of the second
of all mankind”, and wondering what the           session was Mrs. Roberts, sharing her
legal consequences thereof would be for,          perspective as Senior Attorney at the
for example, space tourism. The speaker           Office of General Counsel of the US
considered Article VI from that vantage           National Aeronautics and Space Agency
point to provide substance to the general         (NASA) with the audience. She went
obligation of due diligence of a state, and       through an extensive analysis of how, in
proceeded to analyse, using „space                the various areas concerned, the US
tourism‟ as the test case, whether current        government had implemented its general
space law would still be up to the task of        obligations to authorise and continuously
guaranteeing such due diligence. The              supervise under Article VI of the Outer
fundamental answer to this should be              Space Treaty, from the Communications
„yes‟, although adaptation and further            Act       and        follow-on        acts     on
implementation        would     certainly   be    telecommunications as they applied to
necessary – at the national, regional             satellite communications, to the various
(European) as well as international levels.       Acts and policies on remote sensing, the
She finally remarked that Article VI only         Commercial Space Launch Act in various
was to apply to international spaceflight         incarnations and the Commercial Space
(as long as the label of „international‟ of       Act of 1998. Finally, pointing to a key issue
course included effects as opposed to             in any implementation exercise as far as
merely who the partners were), and                the international responsibility of Article VI
proposed to apply space law to space              is concerned, she noted that within the
tourism primarily on a functional basis.          United States the Crew Code of Conduct
                                                  for the International Space Station was
After a coffee break, the second session          implemented through the Code of Federal
dealt with the “National Implementation           Regulations,       in      order     to    ensure
of Article VI by Governments”. The first          enforceability of the relevant provisions.
speaker in the session was Mr. Clerc,             The third speaker was Mr. Tallia, who
tackling the subject from his position as         spoke from his perspective as Senior
Head of the Legal Service of the French           Counselor for Atmospheric and Space
space agency CNES. He essentially dealt           Services, and Research with the US
with the brand new French national space          Department of Commerce, more precisely
law, explaining first of all that there had       with NOAA as the national authority
existed a sui generis legal framework all         responsible inter alia for licensing private
along for the operations of Arianespace.          remote sensing operators in the United
States. Such licensing, speaker pointed           number of highlights from the documents
out, also took Articles III and VII of the        thus archived.
Outer Space Treaty into account. He
discussed amongst others the Kyl-                 After the lunch break, the third and final
Bingaman Amendment National Defence               session focused on the private sector,
Authorization Act of 1997, placing limits in      “Operating a Space Business Under
dissemination of imagery of Israel, and the       National Laws that Implement Article
licensing regulations enunciated in the           VI”. The first speaker here was Mr.
Code of Federal Regulations. Then he              DalBello, in his capacity as Vice-President
addressed       the     question       whether    of Government Affairs with Intelsat
participants to the Google Lunar Prize            General. He started out by saying that
potentially making pictures of the earth          Article VI implies an ongoing responsibility,
would require a NOAA license. In his view,        through the concept of “continuing
if they would orbit the earth for a week and      supervision”. The speaker further analysed
do so, the answer would likely be „yes‟,          what this meant in the context of Article VI:
whereas if they would just be blasting off        could failure to comply with such an
in the direction of the moon, the answer          ongoing responsibility, especially if over
would probably be „no‟. Speaker‟s final           time more sophisticated technical means
remark pertained to the requirement under         would have become available and hence
the UN Principles on Remote Sensing to            would have raised the applicable
allow foreign governments access to               standards of reasonableness, invoke the
unenhanced data regarding its territory on        application of strict liability under the
reasonable (cost) terms, which was                Liability Convention, if relevant damage
included in any license granted: so far           were to result? Finally, speaker went in
such a request has never occurred.                depth into the various technical aspects
The fourth and final speaker of that              involved in the possibility for governments
session was Mr. Crowther, from the                to actually control any licensees, to ensure
Science and Technology Facilities Council         continuing conformity of their activities with
of the British National Space Centre              the pertinent international responsibility of
(BNSC) in the United         Kingdom. Going       those states.
through the UK Outer Space Act as it              The second speaker was Mr. Gold, the
entered into force in 1986, he highlighted        Legal Counsel for Bigelow Aerospace,
several aspects regarding how it                  who       amongst     others     went     into
implemented key aspects of the space              considerable detail when sharing his
treaties, including Article VI of the Outer       experience with the audience with national
Space Treaty. This concerned especially           implementation of Article VI in the US
the scope and further relevant parameters         context vis-à-vis his private company, bent
of the licensing obligation under the Act,        on developing new technology for space
down to such important practical details as       habitats – and contracting with a Russian
applicable time limits, fees, sanctions and       launch service provider for the launch of
environmental impact assessments. The             the first two space objects involved in that
speaker also, however, pointed out the            development process. His talk thus also
same overarching issues that all national         brought the US International Trade in
implementation activities with respect to         Arms Regulations, the much-feared and -
Article VI have to deal with, such as             loathed ITAR‟s, into the discussion, as
liability arrangements and insurance              these certainly were one particular form of
requirements, where he noted in particular        national authorisation and continuing
a need for international standards                supervision considered a pain in the neck
applicable to in-orbit activities, to avoid the   by most (US) private enterprise. He finally
potential negative impact of widely varying       noted that, in the United States, currently
national regulations.                             no regulatory authority exists for crewed
                                                  on-orbit activities; in his view the
During lunch, the participants were               establishment        of     any      relevant
informed by Mr. Dodge of the                      authorisation and continuing supervision
establishment of an Andrew G. Haley               here would need a specific Congressional
Archive at the National Center for Remote         statutory act.
Sensing, Air and Space Law, announced             The final speaker of that session was Mrs.
as “The Work Product of the World‟s First         Schroeder, of Fish & Richardson in
Space Law Practitioner”, and he                   Washington, who succinctly remarked that
proceeded to present the audience with a          the United States had taken the lead
globally    speaking     in   implementing
domestically not only the Outer Space
Treaty but also the Liability Convention
and the Registration Convention, the two
other international treaties relevant here.
Speaker considered all of them sufficiently
broadly drafted to allow for ongoing
relevance and to allow individual states to
tailor their national regulations to their
national activities as they develop – and
consequently suggested that changes to
be made to that regime should only be
undertaken at the national level.

Thus, another interesting Symposium lived
up to the expectations as following from
the link to the Galloway-name, and as it
seemed from various comments either
during the sessions or during the informal
gatherings around drinks and food
immediately following, this time in
particular    the    relatively substantial
international involvement could be seen as
another plus. Which made yours truly ever
more pleased with having been able to

                       Frans von der Dunk
                 Member of the Board, ECSL

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