van Fenema, Peter --- "Legal aspects of launch services and space transportation" [2015] ELECD 253; in von der Dunk, Frans (ed), "Handbook of Space Law" (Edward Elgar Publishing, 2015) 382

Book Title: Handbook of Space Law

Editor(s): von der Dunk, Frans

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781000359

Section: Chapter 7

Section Title: Legal aspects of launch services and space transportation

Author(s): van Fenema, Peter

Number of pages: 74

Abstract/Description:

The activity of launching into outer space is, obviously, an indispensable precursor to – and forms an integral part of –most other space activities. It is also the most vulnerable stage of any space endeavour: on average over the past 15 years, close to 5 per cent of all launches have failed. Logically, the consequences of launch failures were regulated at an early stage through the Outer Space Treaty and the Liability Convention, with liability imposed on the ‘launching State(s)’. Which international regulations, both hard and soft law, further apply to this activity in its various forms and manifestations? The ITU Radio Regulations address the radio frequencies to be used, but international safety regulations comparable to the International Civil Aviation Organisation’s Standards and Recommended Practices do not exist and there is no international system of space traffic management to which all space operators subscribe. The COPUOS Space Debris Mitigation Guidelines are not hard law but do address part of the space safety issue by asking spacefaring states to adhere to certain guiding principles. Apart from the operational and safety aspects of launching activities, attention has to be paid to the commercial side of space transport: space launch companies, whether governmental or privately owned, offer their services to governmental, whether civil or military, and private space clients, for the carriage of their ‘space cargo’ into orbit or beyond. This launch services market is limited both on the supply side and on the demand side because of inter alia international (MTCR, Wassenaar Arrangement) and national export restrictions that are based on the – potential – military uses of the sensitive rocket technology, used in civil launch vehicles and military missiles alike. And also satellites are subject to export controls because of their dual-use technology, and thus cannot easily be exported to foreign launch companies. International competition in this field is further limited by ‘fly national’ provisions in national space legislation and/or policy. Though in the past the United States regulated access to the international launch (services) market through bilateral agreements with China, Russia and Ukraine, at present these commercial/economic aspects of the launch market are unregulated: the WTO/GATS rules were never applied to the trade in launch services and no other multilateral arrangements appear to cover the issue at present. All of the above is reflected in various divergent ways in a number of national (space) regulations and policies, inter alia on the licensing of private industry space ventures. Launching into outer space, or space transportation, is an indispensable precursor to all modern satellite-based activities in the field of communications, navigation, remote sensing and science. In fact, it enables the industries concerned, which also include satellite and ground equipment manufacturing. Put differently, these industries and the markets in which their products are being sold would simply not have existed without (commercial) space transportation. Where originally only two states, the United States and the Soviet Union, performed launches for civil and military purposes, since the early 1980s other spacefaring nations have joined, while at the same time also private launch service providers made their entry into this field. Putting satellites into orbit today is an industry in which (companies from) primarily the United States, Russia, Europe, China, and to a lesser extent India and Japan, offer their services worldwide in a competitive environment. But it is not a free market in which these – potential – competitors operate, as governments have the tendency to favour their national launch providers and there are other impediments to the functioning of this market. It is important to note that this is a ‘high tech’ activity: few states had – and have – the scientific and technical expertise to develop launch vehicles from scratch. The post-war development of intercontinental ballistic missiles (ICBMs) gave the United States and the Soviet Union the necessary know-how.