Evaluating Regulatory Instruments Frans G von der Dunk

Evaluating Regulatory Instruments (…) Frans G. von der Dunk University of Nebraska-Lincoln, College of Law The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 1

Introduction – taking stock n Harmful interference – the practice n Harmful interference – the law Ø Ø ITU regime National law – Dutch, Belgian & US examples EU law Contract law At least for satellite communications: also the ‘space side’ to interference The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 2

Outer Space Treaty (1) n 102 parties, 27 signatories n Applies to all “(national) activities in outer space”, incl. private operations n Art. VI: Ø Ø Ø ‘Conformity with provisions of OST’ Juncto Art. III: ‘includes general international law’ Includes ITU & EU law (to the extent ‘international law’ …) The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 3

Outer Space Treaty (2) n Art. VII: Ø Liability for damage caused by space object Further elaborated by Liability Convention n Art. IX: Ø Ø 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 The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 4

Outer Space Treaty (3) n No dispute settlement procedure Ø Ø 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 u ICJ – – States responsible for “national activities in outer space” also of ‘their’ private operators Possibility of specialized Chambers u PCA Optional Rules The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 5

Liability Convention (1) n 89 parties, 22 signatories & 3 IGOs n On damage caused by space objects Ø Ø Ø 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? The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 6

Liability Convention (2) n On compensation Ø 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, III would have arisen … n Note: still state-oriented system The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 7

Liability Convention (3) n Dispute settlement system Ø Ø Art. IX: diplomatic negotiations (cf. also XIV) Artt. XIV-XX: Claims Commission u Non-binding, unless both parties in advance agree otherwise Ø 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 (…? ) The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 8

National space law (1) n 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? The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 9

National space law (2) n Case study: interpretation key concept ‘damage caused by space object’ Ø 1982 Swedish Act on Space Activities u Ø 1986 UK Outer Space Act u Ø “Damage which has come about as a result of space activities” “on account of undertakings in international agreements” (Sec. 6) “Damage or loss arising out of activities carried on” (Sec. 10(1)) 1993 Russian Law on Space Activities u “Direct damage as a result of accidents” (Art. 30(1)) The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 10

National space law (3) n Case study – ctd. Ø 1993 South African Space Affairs Act u Ø 1996 Ukrainian Law on Space Activity u Ø ‘Damage’ not defined; ref. to general Ukrainian law 1998 Australian Space Activities Act u Ø ‘Damage’ not defined – deference to int’l (space) law … “Damage has the same meaning as in the Liability Convention” (Sec. 8 sub 8) … 2001 Brazilian Administrative Edict & Regulation u Definition ‘damage’ copies Art. I(a), LC (Art. 5, Reg. ) The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 11

National space law (4) n Case study – ctd. Ø 2005 Belgian Law on space activities u Ø 2005 South Korean space act u Ø ‘Damage’ defined as per Art. I(a), LC (Art. 3(12)) “Damage ensuing from a space accident caused by the space object” (Art. 14) 2007 Dutch space law u u 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 …? The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 12

National space law (5) n Case study – ctd. Ø 2008 French Law on Space Operations u Ø 2011 Austrian Law on Space Activities u Ø “Damage caused to third parties by space operations” (Art. 13) “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 u ‘Damage to the property of individuals and legal entities following implementation of space activities’ (Art. 27(2)) The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 13

National space law (6) n 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 … The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 14

Concluding remarks n Though not likely also ‘general’ space law (int’l / nat’l) may offer opportunities to address ‘harmful interference’ n It would help, though, if we would be able to arrive at some common understanding of esp. the Liability Convention’s relevant phrases … n Ultimately: proof of the pudding … The 'Space Side' to 'Harmful Interference' 06 -063 rd Luxembourg Workshop 2014 15