Evaluating Regulatory Instruments (…) Frans G. von der Dunk

1. Evaluating Regulatory Instruments (…) Frans G. von der Dunk University of Nebraska-Lincoln, College of Law

2. Introduction – taking stock • Harmful interference – the practice • Harmful interference – the law • ITU regime • National law – Dutch, Belgian & US examples • EU law • Contract law  At least for satellite communications: also the ‘space side’ to interference

3. Outer Space Treaty (1) • 102 parties, 27 signatories • Applies to all “(national) activities in outer space”, incl. private operations • Art. VI: • ‘Conformity with provisions of OST’ • Juncto Art. III: ‘includes general international law’ • Includes ITU & EU law (to the extent ‘international law’ …)

4. Outer Space Treaty (2) • Art. VII: • Liability for damage caused by space object  Further elaborated by Liability Convention • Art. IX: • Space activities to be conducted with due regard for activities other states • If potential for “harmful interference” with activities in outer space, right respectively obligation of consultation exist

5. Outer Space Treaty (3) • No dispute settlement procedure • General assumption / hope that principles of ‘peaceful exploration & use’ & ‘international cooperation’ minimize harmful interference … • Fall-back via Art. III: general international law dispute settlement mechanisms • ICJ • States responsible for “national activities in outer space” also of ‘their’ private operators • Possibility of specialized Chambers • PCA Optional Rules

6. Liability Convention (1) • 89 parties, 22 signatories & 3 IGOs • On damage caused by space objects • Art. I(d): ‘space objects’ usually considered to include anything launched into space  also communication satellites • Art. I(a): ‘damage’ includes ‘loss of or damage to property’ (commercial) loss (of revenue) following interference if no ‘physical’ loss? • Artt. II, III: ‘caused by …’ usually interpreted as ‘… by kinetic impact’ radio interference?

7. Liability Convention (2) • On compensation • Art. XII: ‘in accordance with international law, justice & equity, to provide reparation as will restore person to the condition which would have existed if the damage had not occurred’  Would seem to include also ‘indirect’, ‘consecutive’ damage – at least if ‘triggering damage’ as per Artt. I, II, III would have arisen … • Note: still state-oriented system

8. Liability Convention (3) • Dispute settlement system • Art. IX: diplomatic negotiations (cf. also XIV) • Artt. XIV-XX: Claims Commission • Non-binding, unless both parties in advance agree otherwise • Art. XI(2): possibility for recourse under national dispute settlement systems (also) for private parties to a dispute remains open  Recourse to e.g. ICJ & PCA also open (…?)

9. National space law (1) • Both Artt. VI & VII, Outer Space Treaty & Artt. I-XXI, Liability Convention, effectively require nat’l implementation, esp. vis-à-vis private operators  How do national space laws interpret the relevant clauses, so as to possibly shed light on how they should be interpreted?

10. National space law (2) • Case study: interpretation key concept ‘damage caused by space object’ • 1982 Swedish Act on Space Activities • “Damage which has come about as a result of space activities”“on account of undertakings in international agreements” (Sec. 6) • 1986 UK Outer Space Act • “Damage or loss arising out of activities carried on” (Sec. 10(1)) • 1993 Russian Law on Space Activities • “Direct damage as a result of accidents” (Art. 30(1))

11. National space law (3) • Case study – ctd. • 1993 South African Space Affairs Act • ‘Damage’ not defined – deference to int’l (space) law … • 1996 Ukrainian Law on Space Activity • ‘Damage’ not defined; ref. to general Ukrainian law • 1998 Australian Space Activities Act • “Damage has the same meaning as in the Liability Convention” (Sec. 8 sub 8) …  • 2001 Brazilian Administrative Edict & Regulation • Definition ‘damage’ copies Art. I(a), LC (Art. 5, Reg.)

12. National space law (4) • Case study – ctd. • 2005 Belgian Law on space activities • ‘Damage’ defined as per Art. I(a), LC (Art. 3(12)) • 2005 South Korean space act • “Damage ensuing from a space accident caused by the space object” (Art. 14) • 2007 Dutch space law • Ref. to Art. VII, OST & LC “damage caused by its space activities” (Sec. 12(1) & (2)) … • Sec. 10(1) refers to ‘damage’ in a more general context but rather broadly defined …?

13. National space law (5) • Case study – ctd. • 2008 French Law on Space Operations • “Damage caused to third parties by space operations” (Art. 13) • 2011 Austrian Law on Space Activities • “Damage caused by a space activity in accordance with international law” (Sec. 11(1)) “damage caused to persons and property” (Sec. 4(4)) • 2012 Kazakh Law on Space Activities • ‘Damage to the property of individuals and legal entities following implementation of space activities’ (Art. 27(2))

14. National space law (6) • General confusion damage caused by object  damage caused by activity & Sometimes specific reference to Art. I(a), LC, sometimes vague reference to applicable international agreements  At least in a number of cases harmful interference might well be seen as compensable damage …

15. Concluding remarks • Though not likely also ‘general’ space law (int’l / nat’l) may offer opportunities to address ‘harmful interference’ • It would help, though, if we would be able to arrive at some common understanding of esp. the Liability Convention’s relevant phrases … • Ultimately: proof of the pudding …