1 1 M o l i t o r, F i s c h & A s s o c i é s A v o c a t s à l a C o u r L u x e m b o u r g...

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M o l i t o r , F i s c h & A s s o c i é sA v o c a t s à l a C o u r

L u x e m b o u r g

Project 2001 PLUS

Current Issues in the Registration of Space Objects

Workshop 20/21 January 2005

INTER-PARTY AGREEMENTS

by Rechtsanwalt Oliver HUTH


L u x e m b o u r g

Project 2001 PLUS

Current Issues in the Registration of Space Objects

Workshop 20/21 January 2005

INTER-PARTY AGREEMENTS

by Rechtsanwalt Oliver HUTH

22

I. References to « Inter-Party Agreements »


• Art. II 2. of the Registration Convention : « Where there are two or more launching States in respect of any such space object, they shall jointly determine which one of them shall register the object in accordance with paragraph 1 of this article, bearing in mind the provisions of article VIII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and without prejudice to appropriate agreements concluded or to be concluded among the launching States on jurisdiction and control over the space object and over any personnel thereof. »

• Art. II 2. of the Registration Convention : « Where there are two or more launching States in respect of any such space object, they shall jointly determine which one of them shall register the object in accordance with paragraph 1 of this article, bearing in mind the provisions of article VIII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and without prejudice to appropriate agreements concluded or to be concluded among the launching States on jurisdiction and control over the space object and over any personnel thereof. »

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Art. VI of the Registration Convention: request for assistance in the identification of a space object having caused damage

« (…) A State Party making such a request shall, to the greatest extent feasible, submit information as to the time, nature and circumstances of the events giving rise to the request. Arrangements under which such assistance shall be rendered shall be the subject of agreement between the parties concerned .»

Art. VI of the Registration Convention: request for assistance in the identification of a space object having caused damage

« (…) A State Party making such a request shall, to the greatest extent feasible, submit information as to the time, nature and circumstances of the events giving rise to the request. Arrangements under which such assistance shall be rendered shall be the subject of agreement between the parties concerned .»

44

II. Inter-Party Agreements and the Liability Convention


• Interaction between RC and LC • Need to be read and interpreted together• Launching State must register• Aim/goal of the RC :

– facilitating the identification on the Launching State in view of liability

– Facilitating evidence for a victim of a damage

• Interaction between RC and LC • Need to be read and interpreted together• Launching State must register• Aim/goal of the RC :

– facilitating the identification on the Launching State in view of liability

– Facilitating evidence for a victim of a damage

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• Art. V 2 : «(…) The participants in a joint launching may conclude agreements regarding the apportioning among themselves of the financial obligation in respect of which they are jointly and severally liable. Such agreements shall be without prejudice to the right of a State sustaining damage to seek the entire compensation due under this Convention from any or all of the launching States which are jointly and severally liable. »

• Art. V 2 : «(…) The participants in a joint launching may conclude agreements regarding the apportioning among themselves of the financial obligation in respect of which they are jointly and severally liable. Such agreements shall be without prejudice to the right of a State sustaining damage to seek the entire compensation due under this Convention from any or all of the launching States which are jointly and severally liable. »

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Art. XXIII 2 : « No provision in this Convention shall prevent States from concluding international agreements reaffirming, supplementing or extending its provisions »

Art. XXIII 2 : « No provision in this Convention shall prevent States from concluding international agreements reaffirming, supplementing or extending its provisions »

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III. Inter-Party Agreements in the

framework of the UN space law system III. Inter-Party Agreements in the

framework of the UN space law system • Inter-Party Agreements :

– can include both aspects of registration and liability

– other issues– can be concluded for specific space

objects/launches or provide for general terms and conditions (framework agreements)

• Inter-Party Agreements : – can include both aspects of registration

and liability– other issues– can be concluded for specific space

objects/launches or provide for general terms and conditions (framework agreements)

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III. Inter-Party Agreements in the framework of the UN space law system


• Note Art. V 2, last sentence of the LC:

« Such agreements shall be without prejudice to the right of a State sustaining damage to seek the entire compensation due under this Convention from any or all of the launching States which are jointly and severally liable. »

• Same consequence from the victim’s point of view where there is an IPA regulating the registration : recourse against any and all of the launching States is not excluded

• Note Art. V 2, last sentence of the LC:

« Such agreements shall be without prejudice to the right of a State sustaining damage to seek the entire compensation due under this Convention from any or all of the launching States which are jointly and severally liable. »

• Same consequence from the victim’s point of view where there is an IPA regulating the registration : recourse against any and all of the launching States is not excluded

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• Party ?– States party to the respective Conventions,

Launching States– Not : private entities – Under Registration Convention : States Party to

the Registration Convention and being Launching States

– UN space treaties • Only States are parties (special provisions for

international organisations - concept of declaration of acceptance)

• Party ?– States party to the respective Conventions,

Launching States– Not : private entities – Under Registration Convention : States Party to

the Registration Convention and being Launching States

– UN space treaties • Only States are parties (special provisions for

international organisations - concept of declaration of acceptance)

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• Launch contracts signed between operators and launch service providers have no effect on joint and several liability regime installed by the UN treaties

• No effect of such contracts for recourse of a Launching State against « its » non-governmental entities

• Launch contracts signed between operators and launch service providers have no effect on joint and several liability regime installed by the UN treaties

• No effect of such contracts for recourse of a Launching State against « its » non-governmental entities

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IV. Inter-Party Agreements and practice IV. Inter-Party Agreements and practice

• Multitude and variety• Famous example : Article 5 of the Agreement

« concerning cooperation on the civil international space station » (IGA): « 1. In accordance with Article II of the Registration Convention, each Partner shall register as space objects the flight elements listed in the Annex which it provides, the European Partner having delegated this responsibility to ESA, acting in its name and on its behalf. »

• Multitude and variety• Famous example : Article 5 of the Agreement

« concerning cooperation on the civil international space station » (IGA): « 1. In accordance with Article II of the Registration Convention, each Partner shall register as space objects the flight elements listed in the Annex which it provides, the European Partner having delegated this responsibility to ESA, acting in its name and on its behalf. »

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V. Luxembourg and space lawV. Luxembourg and space law

• Luxembourg a State Party to :– the Liability Convention

• Not ratified– Outer Space Treaty– Registration Convention– Moon Agreement– Agreement on the Rescue of Astronauts

• Luxembourg a State Party to :– the Liability Convention

• Not ratified– Outer Space Treaty– Registration Convention– Moon Agreement– Agreement on the Rescue of Astronauts

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V. Luxembourg and space lawV. Luxembourg and space law

• Contradiction to reality : – Luxembourg de facto a major space-faring

nation

• Launching State

• Following slides : Courtesy of

SES GLOBAL/SES ASTRA

• Contradiction to reality : – Luxembourg de facto a major space-faring

nation

• Launching State

• Following slides : Courtesy of

SES GLOBAL/SES ASTRA

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SES ASTRASES ASTRA• Operator of ASTRA, the leading DTH broadcast

satellite system in Europe• ASTRA consists of 13 satellites at 4 orbital positions

– ASTRA transmits more than 1,400 digital and analogue channels on behalf of leading European and international broadcasters

– ASTRA serves 94 million homes in 30 European countries

• 36.4 million homes in DTH reception• 57.9 million homes via cable

(Courtesy: SES GLOBAL/ SES ASTRA)

• Operator of ASTRA, the leading DTH broadcast satellite system in Europe

• ASTRA consists of 13 satellites at 4 orbital positions– ASTRA transmits more than 1,400 digital and

analogue channels on behalf of leading European and international broadcasters

– ASTRA serves 94 million homes in 30 European countries

• 36.4 million homes in DTH reception• 57.9 million homes via cable


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SES GLOBALSES GLOBAL

• The world’s leading satellite operator by revenues, EBITDA and size of fleet

• Born out of the combination of SES ASTRA and SES AMERICOM

– ASTRA: No.1 DTH broadcast satellite system in Europe with a reach of approx. 36.4 million households (94 million incl. cable)

– AMERICOM: Leading position in US cable head-end broadcasting serving over 10,000 head-ends with reach of approximately 80 million cable households


• The world’s leading satellite operator by revenues, EBITDA and size of fleet

• Born out of the combination of SES ASTRA and SES AMERICOM

– ASTRA: No.1 DTH broadcast satellite system in Europe with a reach of approx. 36.4 million households (94 million incl. cable)

– AMERICOM: Leading position in US cable head-end broadcasting serving over 10,000 head-ends with reach of approximately 80 million cable households


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Global reach based on regional market focus SES ASTRA is Europe’s #1 satellite service provider

reaching some 94 million households

SES AMERICOM is a major player in broadcasting for US

cable services reaching some 80 million US households (Courtesy: SES GLOBAL/ SES ASTRA)

The SES GLOBAL Fleet (Courtesy: SES GLOBAL/ SES ASTRA)

Largest satellite fleet with 40

satellites: 29 operated by

wholly owned subsidiaries

and 11 through equity

participations

Located at 30 orbital

positions

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ASTRA services at a glance (Courtesy: SES GLOBAL/ SES ASTRA)

Video – DTH and cable

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Radio – DTH and cable




2020

IP Services





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Enterprise networks

IP Services





2222

IP Services

Enterprise networks



SNG/Occasional use



2323

IP Services

Enterprise networks



SNG/Occasional use


Government services

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IP Services

Enterprise networks

Video – DTH and cable SNG/Occasional use

Government services

TechCom services


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The ASTRA satellite fleet (Courtesy: SES GLOBAL/ SES ASTRA)

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ASTRA coverage area in Europe (Courtesy : SES GLOBAL/SES ASTRA)ASTRA coverage area in Europe (Courtesy : SES GLOBAL/SES ASTRA)

Blue chip customersBlue chip customers

ASTRA transmits more than 1,400 channels on behalf of Europe’s leading broadcasters via its satellites at 19.2° and 28.2° East

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V. Luxembourg and its registration practiceV. Luxembourg and its registration practice

• Competent authority : Service des Médias et des Communications

• Practice of voluntary registration– Voluntary acceptance of RC and relevant UN

resolutions • Resolutions 1721(XVI) of December 20, 1961 and 41/66

of December 3, 1986

• No national registry• Update and regrouped registration every 2-3

years

• Competent authority : Service des Médias et des Communications

• Practice of voluntary registration– Voluntary acceptance of RC and relevant UN

resolutions • Resolutions 1721(XVI) of December 20, 1961 and 41/66

of December 3, 1986

• No national registry• Update and regrouped registration every 2-3

years

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V.Luxembourg and IPAsV.Luxembourg and IPAs

• No such agreements in place

• However, informal practice– Example : Cooperation with the Russian

Federation • Russian Federation includes certain minimum

details about ASTRA satellites in its registration data when launching Proton rockets from Baikonur

• No such agreements in place

• However, informal practice– Example : Cooperation with the Russian

Federation • Russian Federation includes certain minimum

details about ASTRA satellites in its registration data when launching Proton rockets from Baikonur

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V. Luxembourg : Current developmentsV. Luxembourg : Current developments

• Ratification of UN Conventions and national space law– Process accelerated by the problems

occurred with ASTRA 1-K• Actual risk of damage if safe deorbiting of

ASTRA 1-K had failed (Dec. 2002)

– Ratification of OST in June 2005 (current preparatory work)

• Ratification of UN Conventions and national space law– Process accelerated by the problems

occurred with ASTRA 1-K• Actual risk of damage if safe deorbiting of

ASTRA 1-K had failed (Dec. 2002)

– Ratification of OST in June 2005 (current preparatory work)

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V.Luxembourg : Current developmentsV.Luxembourg : Current developments

• Elaboration of a national space law• In parallel : ratification of the RC is envisaged• Need for IPAs has been recognized• Eventually : plans to approach COPUOS• Luxembourg soon ESA Member State

– Agreement on accession to the ESA convention signed May 6, 2004

• Elaboration of a national space law• In parallel : ratification of the RC is envisaged• Need for IPAs has been recognized• Eventually : plans to approach COPUOS• Luxembourg soon ESA Member State

– Agreement on accession to the ESA convention signed May 6, 2004

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VI. Examples/applications of IPAs VI. Examples/applications of IPAs

• Agreement between the Government of Australia and the Government of the Russian Federation on Cooperation in the Field of the Exploration and Use of Outer Space for Peaceful Purposes (23 May 2001)

• Main clause : cross-waiver of liability for certain cases

• Background of the agreement :– The import of sophisticated, foreign launch vehicle and other space-related

technologies involves the agreement between governments for its release and access control, especially given the sensitive basis of some of the technologies involved. The key provisions include protection of intellectual and physical property and information.

• Agreement between the Government of Australia and the Government of the Russian Federation on Cooperation in the Field of the Exploration and Use of Outer Space for Peaceful Purposes (23 May 2001)

• Main clause : cross-waiver of liability for certain cases

• Background of the agreement :– The import of sophisticated, foreign launch vehicle and other space-related

technologies involves the agreement between governments for its release and access control, especially given the sensitive basis of some of the technologies involved. The key provisions include protection of intellectual and physical property and information.

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VI. Examples/applications of IPAs : The case of Hellas SAT

VI. Examples/applications of IPAs : The case of Hellas SAT

• Hellas Sat Consortium Ltd. and Hellas SAT S.A. signed two contracts with SES ASTRA S.A. covering the Hellas Sat satellite (« Olympic Bird ») manufactured by Astrium (France)

• ASTRA provided TT&C services and installed and integrated two ground control stations for Hellas Sat

• Launch on ATLAS V on May 13, 2003

• Hellas Sat Consortium Ltd. and Hellas SAT S.A. signed two contracts with SES ASTRA S.A. covering the Hellas Sat satellite (« Olympic Bird ») manufactured by Astrium (France)

• ASTRA provided TT&C services and installed and integrated two ground control stations for Hellas Sat

• Launch on ATLAS V on May 13, 2003

3434

VI. Examples/applications of IPAs : Hellas SAT

VI. Examples/applications of IPAs : Hellas SAT

• For a period of 12 months, SES ensured full control of the satellite from its HQ in Betzdorf, Luxembourg

• For a period of 12 months, SES ensured full control of the satellite from its HQ in Betzdorf, Luxembourg

ASTRIUM (France) <SES ASTRA S.A.> OTE (operator ground station)in Thermopylae

Greece

Hellas Sat Consortium Ltd.Hellas Sat S.A.

GREECE

3535

VII. Specific problemsVII. Specific problems

• Can a non launching State register a space object ?

• IPAs to this effect and in view of transfering jurisdiction and control possible ?

• Obligation of the new owner to register ?• Liability of the registering non launching State

by the sole fact of its registering ?

• Can a non launching State register a space object ?

• IPAs to this effect and in view of transfering jurisdiction and control possible ?

• Obligation of the new owner to register ?• Liability of the registering non launching State

by the sole fact of its registering ?

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VII. Specific problemsVII. Specific problems

• Reluctancy to conclude IPAs with regard to the registration obligation ?– One Party will expose itself to more

attention– Only makes sense in conjunction with an

appropriate IPA with regard to apportioning of liability

• Reluctancy to conclude IPAs with regard to the registration obligation ?– One Party will expose itself to more

attention– Only makes sense in conjunction with an

appropriate IPA with regard to apportioning of liability

3737

VIII. ConclusionsVIII. Conclusions

• Given the current concept of Launching State, the principle of joint and several, absolute liability, the obligation of the Launching State having to register :– Necessity for IPAs, as a current

amendment to Liability and Registration Convention seems unrealistic

• Given the current concept of Launching State, the principle of joint and several, absolute liability, the obligation of the Launching State having to register :– Necessity for IPAs, as a current

amendment to Liability and Registration Convention seems unrealistic

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VIII. ConclusionsVIII. Conclusions

• IPAs regulating liability issues will almost « naturally » also deal with registration issues (annex issue)

• More legal « security » of States Parties

• IPAs regulating registration « less urgent » than those regulating liability

• IPAs regulating liability issues will almost « naturally » also deal with registration issues (annex issue)

• More legal « security » of States Parties

• IPAs regulating registration « less urgent » than those regulating liability

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VIII. Conclusions / open issues VIII. Conclusions / open issues

• General framework IPAs or specific IPAs for every joint mission/ launch ?– Advantages /disadvantages

• Harmonization and non-contradiction between IPAs and contracts concluded by the major private operators and entities

• General framework IPAs or specific IPAs for every joint mission/ launch ?– Advantages /disadvantages

• Harmonization and non-contradiction between IPAs and contracts concluded by the major private operators and entities

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VII. Conclusions VII. Conclusions

• Europeanization of the questions pertaining to IPAs ? New law developments under European Constitution ?

• Art. 13 of the new Constitution - room for such developments ?

• Depends on ESA/EU relationships

• Europeanization of the questions pertaining to IPAs ? New law developments under European Constitution ?

• Art. 13 of the new Constitution - room for such developments ?

• Depends on ESA/EU relationships

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L u x e m b o u r g

Thank you for your attention !

[email protected] 8, rue Sainte-Zithe, B.P. 690, L-2016

Luxembourg


L u x e m b o u r g

Thank you for your attention !

[email protected] 8, rue Sainte-Zithe, B.P. 690, L-2016

Luxembourg

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