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date: 08 March 2021

Austrian National Space Lawfree

  • Cordula SteinkoglerCordula SteinkoglerUniversity of Vienna

Summary

The Austrian Outer Space Act, which entered into force in December 2011, and the Austrian Outer Space Regulation, which has been in force since February 2015, form the legal framework for Austrian national space activities. The elaboration of this national space legislation became necessary when the first two Austrian satellites were developed, to ensure compliance with Austria’s obligations as State Party to the five United Nations space treaties. The legislation comprehensively regulates legal aspects related to space activities, including the authorization, supervision, and termination of space activities; the registration of space objects; insurance requirements; and possibilities for recourse of the government against the operator. One of the main purposes of the law is to ensure the authorization of national space activities. The Outer Space Act sets forth the conditions for authorization, which, inter alia, refer to the expertise of the operator, requirements for orbital positions and frequency assignments, space debris mitigation, insurance requirements, and the safeguard of public order, public health, and national security, as well as of Austrian foreign policy interests and international law obligations. The Austrian Outer Space Regulation complements these provisions by specifying the documents the operator must submit as evidence of the fulfillment of the authorization conditions, which include the results of safety tests, emergency plans, and information on the collection and use of Earth observation data. Particular importance is attached to the mitigation of space debris. Operators are required to take measures in accordance with international space debris mitigation guidelines for the avoidance of operational debris, the prevention of on-orbit breakups and collisions, and the removal of space objects from Earth orbit after the end of the mission. Another specificity of the Austrian space legislation is the possibility of an exemption from the insurance requirement or a reduction of the insurance sum if the space activity is in the public interest. This allows the support of space activities that serve science, research, and education. Moreover, the law also provides for the establishment of a national registry for objects launched into outer space by the competent Austrian ministry.

Introduction

The Austrian Outer Space Act was adopted by the Austrian National Council on December 6, 2011, and entered into force on December 28, 2011.1 It was complemented by the Austrian Outer Space Regulation, which entered into force on February 27, 2015.2 The elaboration of national space legislation became necessary to ensure compliance with Austria’s obligations under international space law when the first two Austrian satellites were developed (Explanatory Report to the Austrian Outer Space Act, General Part; Marboe, 2012b, pp. 27–29).3 Austria has ratified all five United Nations (UN) space treaties, which are regarded as the core of international space law: the Outer Space Treaty,4 the Rescue Agreement,5 the Liability Convention,6 the Registration Convention,7 and the Moon Agreement.8

Austria has played an active role in the development of the international legal framework for space activities and is the seat of the UN Office for Outer Space Affairs (UNOOSA) and the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS), of which Austria has been a member since 1959.9 Yet, the Austrian private space sector has traditionally consisted mainly of smaller to medium enterprises focusing on niche markets rather than major operators or manufacturers.10 Moreover, Austrian space activities have concentrated to a large extent on the involvement in projects of the European Space Agency (ESA), which has on its part accepted the obligations under the Rescue Agreement, the Liability Convention, and the Registration Convention.11 Until the development of the first two Austrian satellites, the Austrian government therefore saw no necessity to enact a national space law (Marboe, 2012b, pp. 27–29). However, with the initiation of an independent space activity by Austrian entities, the need for national space legislation became clear. Thus, the Austrian Outer Space Act and the Outer Space Regulation were elaborated in order to implement Austria’s obligations under international space law at the national level (Explanatory Report, General Part).

Requirements Under International Space Law and Implementation in Austria

The five UN space treaties set forth the fundamental principles that govern the exploration and use of outer space and establish the rights and obligations of states with regard to the conduct of space activities.12 The treaties have been supplemented by a number of additional international instruments, such as UN General Assembly Resolutions as well as technical guidelines and standards, that further address concepts contained in the treaties. These binding and nonbinding international space law instruments comprise various elements that are relevant with regard to the development of national space legislation. These include in particular the international responsibility of states for national space activities, the authorization and supervision of nongovernmental space activities, the liability of the launching state(s) for damage caused by a space object, and the national and international registration of space objects.

While these international instruments do not strictly require the enactment of formal space legislation, they nevertheless constitute the main basis for national space laws (Gerhard, 2009, pp. 117–120; Marboe, 2015, pp. 130–133; von der Dunk, 2013, pp. 646–648). Since the obligations and requirements contained in these instruments are primarily addressed to states rather than private entities, national space legislation can play an important role in ensuring compliance of nongovernmental space activities with international law. In view of the increasing participation of nongovernmental entities in space activities, a growing number of states have adopted national space legislation in order to comply with their international obligations. Yet, states have taken different approaches regarding the form, scope, and content of their respective national space laws according to their specific needs and interests, which, inter alia, depend on the types of space activities conducted as well as on the extent to which nongovernmental actors are involved (Sánchez Aranzamendi, Riemann, & Schrogl, 2015, pp. 384–385).13

Against the background of this variety of national space legislation, there have been efforts at the international level to identify common denominators and to increase harmonization. The most important example is the Working Group on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space of the Legal Subcommittee of UNCOPUOS.14 Between 2009 and 2012, the Working Group elaborated recommendations on national space legislation that were adopted by the UN General Assembly in Resolution 68/74 of December 11, 2013.15 The resolution contains recommendations regarding the scope as well as the elements of national regulatory frameworks, including conditions for authorization, procedures for supervision, and provisions regarding registration and liability.

The Austrian Outer Space Act lays down the main principles regarding the conduct of national space activities. It is complemented by the Austrian Outer Space Regulation, which contains more detailed provisions on technical and administrative implementation aspects. In the following, the requirements set forth under international space law regarding responsibility and authorization, liability, and registration are discussed and their implementation by Austria through its national space legislation is examined.

Responsibility and Authorization

According to Article VI, Sentence 1, of the Outer Space Treaty, parties bear international responsibility for national space activities carried out by governmental or nongovernmental entities and for ensuring that these activities are conducted in conformity with the provisions of the Outer Space Treaty. In addition, Article VI, Sentence 2, stipulates that space activities of nongovernmental entities “shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”

This formulation in Article VI was a compromise between the two main space powers at the time of the drafting of the Outer Space Treaty, the Soviet Union and the United States. While the Soviet Union was opposed to private activities in outer space, the United States did not want to exclude the possibility of future private involvement in space operations. The solution to the dispute was to allow the conduct of space activities by nongovernmental entities but to ensure that such activities are carried out under the responsibility of states (Gerhard, 2009, pp. 105–106; von der Dunk, 2011, pp. 4–8).16

Generally, under public international law, states bear responsibility for conduct that constitutes a breach of an international obligation and is attributable to them (International Law Commission, 2001, Articles 1 and 2; Crawford, 2013; Kolb, 2017; Shaw, 2017, pp. 589–639) . However, the meaning of responsibility in the space law context differs slightly from the general concept of state responsibility. According to public international law, the conduct of private entities is normally not directly attributable to states (Crawford & Olleson, 2014, pp. 453–460; Shaw, 2017, pp. 589–639).17 In contrast, Article VI of the Outer Space Treaty does not differentiate between governmental and nongovernmental space activities with respect to the responsibility of states.

There are different interpretations regarding the extent of state responsibility for nongovernmental activities in outer space. One view considers the two parts of the first sentence of Article VI as separate responsibilities: on the one hand, responsibility for national space activities in general and on the other hand, responsibility for ensuring that these activities are carried out in conformity with the Outer Space Treaty. Under this view, states are regarded as having direct responsibility for nongovernmental national space activities (Cheng, 1998, pp. 13-15; Kerrest, 1998, pp. 138–139; see also Lyall & Larsen, 2018, p. 60). According to another interpretation, private national space activities are not regarded as directly attributable to the state and the second part of the first sentence of Article VI is understood as a specification of the first part, rather than as a separate responsibility. Responsibility for nongovernmental national space activities is therefore considered limited to ensuring that such activities are carried out in conformity with the Outer Space Treaty (Gerhard, 2009, p. 116; Marboe, 2015, pp. 130–133). Thus, at a minimum, states have an international obligation to ensure that national space activities are carried out in compliance with the obligations contained in the Outer Space Treaty as well as to authorize and continuously supervise private space activities.18

However, Article VI does not specify how these obligations should be implemented by states at the national level. The adoption of a formal space law is not necessarily required to comply with the obligations contained in Article VI. Yet, they provide an important element of national space legislation, since states need to have mechanisms in place to ensure that national space activities are carried out in conformity with the Outer Space Treaty as well as that nongovernmental space activities are authorized and continuously supervised (Gerhard, 2009, pp. 117–120; Marboe, 2015, pp. 130–133; von der Dunk, 2013, pp. 646–648). States that have enacted national space legislation have adopted diverse approaches regarding the implementation of Article VI. An important aspect in this regard is the uncertainty regarding the meaning of several terms used in Article VI, in particular “national” activities “in outer space” for which states parties bear international responsibility, as well as the “appropriate state” required to carry out authorization and supervision of nongovernmental space activities. The interpretation and implementation of Article VI through the Austrian Outer Space Act and the Outer Space Regulation have four main elements that are analyzed in the following: (a) the material scope of the legislation (i.e., the “activities in outer space” that are covered by the law), (b) the personal and territorial scope (i.e., under which circumstances Austria considers itself as the “responsible” state for “national” space activities), (c) authorization and supervision by Austria as the “appropriate” state, and (d) conformity with the provisions of the Outer Space Treaty via the conditions for authorization.

Material Scope—“Activities in Outer Space”

Article VI of the Outer Space Treaty establishes responsibility and requires authorization and supervision for “activities in outer space.” However, neither “space activity” nor “outer space” is defined in the Outer Space Treaty.19 According to a narrow interpretation, responsibility, authorization, and supervision are limited to activities that completely take place in outer space. A broader interpretation, which puts emphasis on the telos of the Outer Space Treaty, regards the obligations contained in Article VI as applicable also to national activities that take place on Earth, if they are predominantly directed at outer space (for a discussion of the different views, see Gerhard, 2009, pp. 107–109). The UN General Assembly Resolution on National Space Legislation recommends that space activities targeted by national space laws may in particular include the launch of objects into, and their return from, outer space, the operation of launch or re-entry sites, and the operation and control of space objects in Earth orbit (Recommendation 1, Resolution on National Space Legislation).

In practice, states have come to different solutions regarding the type of activities that should be covered by their respective national space legislation. Generally, the activities covered by the scope of national laws go beyond activities that take place in outer space only and include, for instance, the operation and guidance of space objects, the launch or procurement of the launch of space objects, the operation of launch facilities, and the development and application of space technology (Marboe, Aoki, & Brisibe, 2015, pp. 506–509).20

Austria has adopted a broad approach with regard to the material scope of its space legislation, not limiting it to activities that take place solely in outer space. According to Article 2, Letter 1, Austrian Outer Space Act, space activities include the launch, operation, or control of a space object, as well as the operation of a launch facility. The Explanatory Report to the Outer Space Act describes “operation and control” broadly as encompassing the operative and technical control of a space object, such as its supervision and steering (Explanatory Report, As to § 2, Letter 1).21 Yet, it is not entirely clear whether this description includes overall supervision and general control over the operation of space objects, or whether it is limited to the technical operation, steering, and monitoring of space objects. The Explanatory Report moreover specifies that the controlled de-orbiting of space objects is also covered by the scope of application of the law. In contrast, the mere control over contents of satellite data, such as the contents of television transmissions or Internet pages, is not covered (Explanatory Report, As to § 2, Letter 1). The Outer Space Act does not contain a definition of where outer space begins. However, the Explanatory Report states that “the space above 110 km sea level is generally considered as ‘outer space’, while below 80 km, the national airspace of the State underneath is situated” (Explanatory Report, As to § 2, Letter 2, referring to Hobe, 2009, p. 31). The Austrian Aviation Rules delimit the upper boundary of the Austrian airspace at the altitude at which aircraft can no longer move by aerodynamic lift but only according to Kepler’s force.22

The broad material scope of the legislation allows Austria to responsibly implement international space law, particularly regarding its responsibility for national space activities, its potential liability as launching state, and the registration of space objects. A more detailed specification regarding the meaning and scope of “operation and control” of space objects could facilitate the application of the legislation in practice.

Personal and Territorial Scope—The “Responsible State”

Another difficulty arising with regard to the implementation of Article VI of the Outer Space Treaty by means of national space legislation is the uncertainty concerning the exact meaning of “national activities” in outer space for which states bear international responsibility. Different interpretations exist in academic discourse regarding the question which state is the “responsible state” according to Article VI. The interpretations can be summarized under three main schools of thought (for an analysis of the different schools of thought, see Böckstiegel, 1992; Cheng, 1998, pp. 7–32; Gerhard, 2009, pp. 111–114; von der Dunk, 2011, pp. 9–17, 2015, pp. 50–55). The first equates national activities with activities of nationals.23 A state would therefore be internationally responsible for space activities carried out by its nationals, including legal persons, such as private companies (Böckstiegel, 1992, pp. 13–14; Kerrest, 1998, p. 138; Lyall & Larsen, 2018, p. 60). This interpretation would, however, be contrary to the objective of the Outer Space Treaty, because it would exclude space activities of nonnationals carried out on the territory of the state or from ships and aircraft of the state’s nationality (Cheng, 1998, p. 22).24

The second school equates the responsible state with the state of registry of a space object according to Article VIII of the Outer Space Treaty, which is also a launching state under Article VII of the Outer Space Treaty and Article II of the Registration Convention (Reijnen, 1991, p. 70). While this interpretation aims at remedying the apparent inconsistency in the Outer Space Treaty between responsibility under Article VI, liability under Article VII, and registration under Article VIII as regards attribution, it overlooks that responsibility is related to activities in outer space, not limited to launch activities, whereas liability under Article VII and registration under Article VIII focus on space objects, with the launch as the decisive factor for attribution. This point of view would thus result in a situation where states that have not launched and registered a space object would not be responsible, although private entities under their jurisdiction may well be involved in the related space activity. This would not only be unsatisfactory in the case of a transfer of ownership of a space object to a state that was not involved in the launch and has not registered the space object, it would also allow for the creation of “registries of convenience” and enable states to evade their responsibility (Cheng, 1998, pp. 20-22; Gerhard, 2009, pp. 112–113; von der Dunk, 2011, pp. 12–13; see also Lyall & Larsen, 2018, pp. 60–62).

The third school of thought generally applies principles of public international law and equates the state responsible for a space activity with the state that is entitled to exercise jurisdiction over the space activity, since this state has the legal competence to control the activity in question and to give effect to its responsibility (Cheng, 1998, pp. 23–26; Gerhard, 2009, pp. 113–114). Generally, under public international law, the two main bases of jurisdiction are territoriality and nationality (Staker, 2014, pp. 483–522; Shaw, 2017, pp. 483-522). The responsibility of states for national activities under Article VI would thus encompass activities conducted from the state’s territory, activities carried out by the state’s nationals, including natural and legal persons, and activities undertaken on or from vessels or aircraft registered in the state’s national registry. This interpretation would be in line with the telos of the Outer Space Treaty to subject every nongovernmental space activity to the responsibility of a state (Cheng, 1998, pp. 23–26; Gerhard, 2009, pp. 113–114). It is moreover in accordance with binding and nonbinding space law instruments that were developed in the framework of UNCOPUOS after the adoption of the Outer Space Treaty. This includes the Moon Agreement, which in Article 14 determines that states bear international responsibility for governmental and nongovernmental national activities on celestial bodies and requires states to “ensure that nongovernmental entities under their jurisdiction shall engage in activities on the Moon only under the authority and continuing supervision of the appropriate State Party” (Article 14, Paragraph 1, Moon Agreement, italics added). This could be interpreted as equating national activities with activities carried out under the jurisdiction of the state concerned, as far as they are conducted by nongovernmental entities (von der Dunk, 2011, p. 10). Moreover, Principle 8 of the Direct Television Broadcasting Principles stipulates that states should bear international responsibility for activities in the field of international direct satellite television broadcasting carried out by them or under their jurisdiction.25 The Principles also link responsibility with jurisdiction and thus support an interpretation of Article VI of the Outer Space Treaty that equates the responsible state with the state having jurisdiction over a space activity.

Jurisdiction describes the legal competence of a state to make, apply, and enforce rules of conduct on persons (Staker, 2014, p. 309). In general international law, pre-eminence is given to territorial jurisdiction (Shaw, 2017, pp. 488–490; Staker, 2014, pp. 318–319). However, in the space law context, personal jurisdiction also plays an important role, since not all states have enacted national space legislation and space activities may be carried out in areas not subject to the territorial jurisdiction of any state, such as the high seas (Marboe et al., 2015, p. 574). This might lead to a situation where no state exercises jurisdiction over a space activity and the activity is not covered by any national regulation, if only territorial jurisdiction is applied. Therefore, personal jurisdiction “is necessary to fulfil the goal of implementing to the fullest extent possible the existing obligations under international law with regard to the conduct of space activities” (Marboe et al., 2015, p. 574).

In practice, states that have implemented Article VI at the national level have taken diverse approaches to the interpretation of the “responsible state” and “national activities” in outer space and have thus made different choices regarding the scope of their national space legislation (for an overview, see Marboe, 2015, pp. 139–204; Marboe et al., 2015, pp. 503–535; Marboe & Hafner, 2011, pp. 57–61). The Austrian Outer Space Act is applicable to space activities carried out on Austrian territory, on board vessels or airplanes registered in Austria, by natural persons with Austrian citizenship, or by legal persons seated in Austria (Article 1, Austrian Outer Space Act). Austria has thus chosen a wide scope for its national space legislation and applies its territorial and personal jurisdiction to fulfill its obligations under Article VI, Outer Space Treaty. The definition of the scope of the Austrian Outer Space Act “follows the general principle of public international law that a State may only be made responsible for such activities over which it can exercise territorial and personal jurisdiction” (Explanatory Report, As to § 1).

The scope is limited to the extent that the Outer Space Act covers the activities of natural persons with Austrian citizenship and legal persons seated in Austria only if they act as operators according to the definition in Article 2, Letter 3, of the Act (Explanatory Report, As to § 1, Paragraph 1, Letter 3).26 If they merely collaborate in a space activity and do not act on their own account, the activity would, according to the Explanatory Report to the Outer Space Act, not fall within the scope of the Act (Explanatory Report, As to § 1, Paragraph 1, Letter 3). Article 2, Letter 3, Outer Space Act defines “operator” as a natural or legal person that carries out or procures space activities. In its comments on the definition of the operator, the Explanatory Report specifies that it is not necessary that the operator carry out or procure space activities in his or her own name or on his or her own account (Explanatory Report, As to § 2, Letter 3). Thus, there seems to be a discrepancy in the definition of the operator that might in practice complicate the implementation of the Outer Space Act. In addition, it is not entirely clear whether only the conduct or also the procurement of space activities is covered by the scope of the law. In this regard, the lack of a definition or clarification concerning the meaning of “procure a space activity” could pose a difficulty in the practical application of the legislation.

Besides this restriction, the personal scope of application of the Outer Space Act is unlimited.27 According to the Explanatory Report to the Outer Space Act, the reason for this unrestricted scope was the wish to avoid control deficits that could prejudice the universal application of international space law (Explanatory Report, As to § 1, Paragraph 1, Letter 3). Moreover, the Act applies not only to nongovernmental but also to governmental activities. The rationale behind this choice was a general desire of the Austrian ministries involved in the drafting process to establish a transparent system and to ensure a flow of information concerning space activities between the different Austrian federal and territorial entities as well as to build up know-how, particularly in the area of authorization and supervision (Marboe, 2012b, p. 32).

The broad interpretation of “national activities” and the “responsible state” in the Austrian law allows Austria to fully implement the comprehensive objective of Article VI of the Outer Space Treaty at the national level. The practical application of the law could be enhanced and transparency increased by providing greater clarity concerning the scope of the legislation with regard to the procurement of space activities, as well as concerning the definition of the operator, in particular when it comes to the question whether an operator must act on his or her own account when carrying out or procuring a space activity in order for the activity to be covered by the scope of the law.

Authorization and Supervision—The “Appropriate State”

The “Appropriate State” to Authorize and Supervise Nongovernmental Space Activities

The extent to which states consider themselves responsible for a space activity also influences whether, and to what extent, they plan to undertake authorization and supervision of that activity (von der Dunk, 2011, pp. 16–17). Analyses in academic discourse regarding the “responsible state” under Article VI, Sentence 1, Outer Space Treaty, are often interlinked with the discussion of the question of which state is the “appropriate state” required to carry out authorization and supervision of nongovernmental space activities under Article VI, Sentence 2. Different proposals have been made to determine the ”appropriate state,” ranging from the launching state of the space object, to the state of which the nongovernmental entity conducting the space activity is a national, and the state in which the activity is carried out, or in which the production of components or instruments for the activity takes place (for a discussion, see for instance Böckstiegel, 1992, pp. 13–14; von der Dunk, 2011, pp. 17–18; Wassenbergh, 1996, pp. 246–247). However, the prevailing opinion argues that Sentence 2 of Article VI has to be read in the context of Sentence 1 and should be understood as a specification of the general responsibility for a subset of national space activities, namely those conducted by private entities. According to this argumentation, Sentence 2 does not create a new legal term, but qualifies the “responsible state” under Sentence 1 as the ”appropriate state” to undertake authorization and supervision (see Gerhard, 2009, pp. 109–110; Marboe & Hafner, 2011, pp. 47–48).28

This interpretation is also in accordance with several UN General Assembly Resolutions that were developed in the framework of UNCOPUOS after the adoption of the Outer Space Treaty. Recommendation 2 of the Resolution on National Space Legislation determines that states, taking into account their obligations as launching states and as responsible states, should ascertain national jurisdiction over space activities carried out from territory under their jurisdiction and ensure authorization and supervision of space activities carried out elsewhere by their citizens and/or legal persons established, registered, or seated in territory under their jurisdiction. The resolution therefore regards the ”appropriate state” as equivalent to the ”responsible state,” which constitutes an interpretation, although not authoritative, of Article VI of the Outer Space Treaty (Marboe et al., 2015, p. 568). In addition, Principle 5 of the Direct Television Broadcasting Principles establishes the right of states to authorize activities in the field of international direct satellite television broadcasting undertaken by persons and entities under their jurisdiction. Furthermore, the UN General Assembly Resolution on the Application of the Concept of the “Launching State” encourages states to consider enacting national laws authorizing and providing for supervision of the space activities by nongovernmental entities under their jurisdiction.29 If, following the argumentation above, the responsible state is the state that exercises jurisdiction over a space activity, the resolutions support an interpretation of Article VI of the Outer Space Treaty that regards the ”responsible state” as the “appropriate state” to authorize and supervise space activities.

The obligation set forth in Article VI of the Outer Space Treaty to authorize and supervise national nongovernmental space activities is mainly implemented via Articles 3 and 13 of the Austrian Outer Space Act. They require authorization and supervision for all space activities that fall under the scope of the Act: space activities carried out on Austrian territory, on board of vessels or airplanes registered in Austria, by natural persons with Austrian citizenship, or by legal persons seated in Austria. Austria thus adopted a broad interpretation and considers itself the ”appropriate state” to perform authorization and supervision for all space activities it qualifies as “national activities” and for which it regards itself as the ”responsible state.” Austria thereby implemented the interpretation of Article VI of the Outer Space Treaty that has been applied at the international level as reflected in the resolutions and principles mentioned above. This broad interpretation enables Austria to authorize and supervise space activities over which it has territorial or personal jurisdiction. This is of particular relevance in cases where no other state is competent, either because the activity is carried out in territory that is not under the jurisdiction of any state, or because other relevant states have not enacted a national space legislation or have adopted a more limited scope for their legislation and a more restrictive interpretation of their responsibilities as ”appropriate state.”

On the other hand, this broad interpretation might lead to situations where several states are competent to authorize and supervise a space activity as a result of concurring jurisdiction over the activity due to overlapping personal and territorial ties. Recommendation 2 of the UN General Assembly Resolution on National Space Legislation determines that in such cases duplicative requirements and unnecessary burdens should be avoided. The Explanatory Report to the Outer Space Act specifies that a potential overlap in the application of the national laws of several countries that could exercise jurisdiction over the same space activity “does not represent a fundamental problem. As the case may be, several authorizations must be obtained” (Explanatory Report, As to § 1, Paragraph 1, Letter 3).30 This approach allows Austria to ensure that authorization and supervision are carried out in accordance with Austrian law, that Austrian interests are safeguarded, and that its responsibilities under international law are met. This is particularly important in cases where the applicable national regulatory frameworks contain different conditions for authorization and modalities for the supervision of space activities, or where the conditions and modalities are very specific to a particular country, such as conditions concerning national security and foreign policy interests. At the same time, the conditions for authorization that can be found in the various national legislations generally contain many common elements, since one of the main purposes of national space laws is to ensure that nongovernmental entities comply with the international obligations of the state in question, in particular those contained in the UN space treaties (Marboe et al., 2015, pp. 518–520). This could lead to duplicative requirements for operators if multiple authorizations must be obtained. Another challenge in the application of the provisions related to the authorization of space activities is the uncertainty mentioned above concerning the scope of the law with regard to the procurement of space activities as well as concerning the definition of the “operator” and the precise meaning of “procure a space activity” in the legislation.

The broad interpretation of the ”appropriate state” in the Austrian space law enables Austria to comprehensively fulfill its obligations to authorize and supervise space activities. This allows it to avoid negative conflicts of competence in cases where no other state is competent—or regards itself as competent—for authorization and supervision, but might also lead to situations where several states are competent to authorize and supervise a space activity. In practice, care should therefore be taken to avoid duplicative and unnecessary requirements for operators, in particular if the authorization requirements in the applicable laws are very similar, while at the same time ensuring that Austrian interests are preserved and Austrian law is fully applied to activities that fall under the scope of the national space legislation. This may make a certain degree of cooperation and coordination with other states that might be competent for authorization and supervision necessary or desirable. If these states also qualify as launching states, this could moreover include arrangements concerning the apportioning of financial obligations with regard to liability, in accordance with Article V of the Liability Convention, as well as agreements on registration according to Article II of the Registration Convention. In addition, the practical implementation of the legislation could be facilitated through a clarification regarding the scope of the law with respect to the procurement of space activities as well as regarding the meaning of the terms “operator” and “procure a space activity” in the Outer Space Act.

Competent Authority and Procedures for Authorization

According to Recommendation 3 of the Resolution on National Space Legislation, the national authority responsible for authorizing space activities as well as the conditions and procedures for granting, modifying, and revoking the authorization should be set out clearly in the national regulatory framework.

The competent authority to authorize national space activities is determined in Article 3 of the Austrian Outer Space Act, which states “Space activities require authorisation by the Minister for Transport, Innovation and Technology.” In addition to the Minister for Transport, Innovation and Technology, the implementation of the Outer Space Act with regard to conditions for authorization that concern the public order, public health, national security, Austria’s obligations under international law, and Austrian foreign policy interests is entrusted to the Minister of the Interior, the Minister for European and International Affairs, and the Minister of Defense and Sports (Article 17, Paragraphs 2 and 3, Austrian Outer Space Act). The Explanatory Report to the Outer Space Act specifies that this “is necessary to involve the authorities competent for those areas and to preserve the respective responsibilities” (Explanatory Report, As to § 17). Moreover, the Minister for Transport, Innovation and Technology has the possibility to appoint additional certified experts for the review of the conditions for authorization and to request an opinion from the Austrian Research Promotion Agency (FFG), which includes the Austrian Aeronautics and Space Agency, and/or from the European Space Agency (Article 5, Paragraphs 1–3, Austrian Outer Space Regulation).31

With regard to the authorization procedure, the Outer Space Act determines that after the operator of the space activity has submitted the necessary documents for the assessment of the conditions for authorization, the Minister for Transport, Innovation and Technology “decides on the request for authorizsation without undue delay and no later than six months after the request has been filed” (Article 4, Paragraph 3, Austrian Outer Space Act). The Act moreover stipulates that the authorization may contain conditions and obligations (Article 4, Paragraph 3, Austrian Outer Space Act). This “functions as a clarification and a signal that conditions and charges have to be expected” (Explanatory Report, As to § 4, Paragraph 3).32 The Outer Space Regulation contains further details of the authorization procedure, including the form in which the documents required for the authorization must be submitted, the fees for the authorization procedure, the protection of trade and business secrets, and the handling of incomplete requests, as well as the dismissal of requests (Articles 4 and 8, Austrian Outer Space Regulation).

The definition of a clear procedure for authorization and the involvement of several ministries as well as of additional experts in the authorization process allows for increased transparency and objectivity in the evaluation of requests for authorization.

Supervision of Authorized Space Activities and Transfer of Ownership

The continuing supervision of space activities is also incumbent on the Minister for Transport, Innovation and Technology. Article 13 of the Outer Space Act states that operators of space activities “are subject to supervision by the Minister for Transport, Innovation and Technology with regard to matters covered by the present Federal Law.” The Resolution on National Space Legislation in its Recommendation 5 suggests that appropriate procedures should ensure the supervision of authorized space activities, including through a system of on-site inspections and reporting requirements. It also recommends that enforcement mechanisms could include administrative measures, such as the suspension or revocation of the authorization, as well as penalties. According to Article 13, Austrian Outer Space Act, “the operator is obliged to grant the organs of the supervisory authority access to all business premises and plants, allow them to inspect relevant documents and provide them with information.” In addition, the operator must notify incidents that delay the authorized space activity or render it impossible or that may require the modification or revocation of the authorization (Article 6, Paragraph 1, Austrian Outer Space Act). The authorization is to be withdrawn or modified if the conditions for authorization are no longer complied with or if additional conditions and obligations that are contained in the authorization are not met (Article 7, Paragraph 1, Austrian Outer Space Act). In the case of withdrawal of the authorization, instructions for the temporary continuation or the safe termination of the activity may be issued. If the operator does not comply with these instructions, the Minister for Transport, Innovation and Technology shall confer control over the space activity to another operator by administrative decision (Article 7, Paragraph 3, Austrian Outer Space Act). According to Article 10 of the Outer Space Act, the operator is also required to submit any modification relevant to the information regarding the registration of a space object, such as the orbital parameters and the function of the space object as well as the operator and the owner of the space object (Article 10, Paragraph 3, Austrian Outer Space Act). The operator must moreover notify the planned or unplanned termination of the activity to the Minister for Transport, Innovation and Technology. In this case, the minister may prescribe measures for the safe termination of the space activity (Article 6, Paragraph 2, Austrian Outer Space Act). This can include the transfer of data for the remote control of the space object and for the determination of its position as well as the de-orbiting of the space object (Explanatory Report, As to § 6). In order to ensure compliance, penalties are provided if there is an infringement of the Outer Space Act or the Outer Space Regulation. A fine of up to 100,000 euros is set forth for an infringement, with a minimum fine of 20,000 euros for the conduct of a space activity without authorization, which is regarded as an especially serious infringement (Article 14, Austrian Outer Space Act; Explanatory Report, As to § 14).

According to Recommendation 8 of the Resolution on National Space Legislation, continuing supervision of nongovernmental space activities should also be ensured in the event of a transfer of ownership of a space object in orbit. The resolution recommends that national regulations may provide for authorization requirements with regard to the transfer of ownership. Article 8 of the Austrian Outer Space Act stipulates that a change of the operator requires the authorization of the Minister for Transport, Innovation and Technology. The authorization of the change of operator is to be undertaken according to the same conditions as the original authorization of the space activity. The Explanatory Report to the Outer Space Act specifies that in cases where the new operator is not covered by the scope of the Outer Space Act, certain charges may be provided for in the authorization process, including the exchange of information with the home state of the new operator as well as the clarification of obligations in the internal relationship (Explanatory Report, As to § 8). This is particularly important with regard to obligations concerning registration and liability. Unlike the obligations of the responsible state for authorization and supervision of a space activity, the obligations of a launching state regarding liability and registration cannot be transferred to another state that is not a launching state of the space object concerned (Schmidt-Tedd & Mick, 2009, pp. 155–156; Schmidt-Tedd, Bohlmann, Malysheva, Stelmakh, & Tennen, 2013, pp. 256–257). This may lead to a situation where the launching state of the transferred space object remains liable for damage caused by the object, even though it cannot supervise the space activity. It is therefore important that the involved states adapt the rights and obligations in their internal relationship to reflect the transfer of ownership of the space object (Gerhard, 2009, pp. 124–125; Marboe et al., 2015, p. 598). To that end, as stated in the Explanatory Report, “also agreements under public international law may be necessary,” which the Austrian government can arrange on the basis of the Austrian space legislation (Explanatory Report, As to § 8).

These provisions thus allow the Austrian government to ensure the continuing supervision of authorized space activities, including in the event of a transfer of ownership of a space object in orbit. In the practical application of these provisions, the capability of the Austrian government to continuously supervise space activities could be even further increased, for instance by establishing a regular reporting requirement for operators, in addition to the existing notification obligations regarding incidents and modifications relevant for authorization and registration. Regular reporting by operators about their space activities could facilitate the fulfillment by the Austrian government of the obligation contained in Article XI of the Outer Space Treaty to inform the UN Secretary-General, the public, and the international scientific community of the nature, conduct, locations, and results of space activities (for a detailed analysis of Article XI, Outer Space Treaty, see Mayence & Reuter, 2009). An additional reporting requirement could also cover, and thus enable the government to follow, recommendations contained in the UN Principles Relating to Remote Sensing of the Earth from Outer Space, in particular regarding the disclosure of information that is capable of averting any phenomenon harmful to the Earth’s environment or that may be useful to states affected, or likely to be affected, by natural disasters.33

Conditions for Authorization—Conformity with the Outer Space Treaty

The establishment of conditions for the authorization of space activities in national regulatory frameworks allows states to assume their international responsibility under Article VI of the Outer Space Treaty to ensure that national space activities are carried out in conformity with the provisions set forth in the Treaty. It also provides a possibility for states to regulate space activities according to their national needs and interests. The Resolution on National Space Legislation in its Recommendation 4 suggests elements for inclusion in the conditions for authorization. It highlights that the conditions for authorization should be consistent with the international obligations of states and may reflect their national security and foreign policy interests. Other aspects that could be considered are the safety of space activities; the minimization of risks to persons, the environment, or property; the avoidance of harmful interference with other space activities; and the experience and qualifications of the applicant. The resolution also recommends that safety and technical standards, particularly regarding the mitigation of space debris, could be included in the conditions for authorization.

In the Austrian Outer Space Act, the responsibility under Article VI of the Outer Space Treaty to ensure that national space activities are conducted in conformity with the Treaty is mainly realized through Article 4, which sets forth the conditions for authorization. The establishment of conditions for authorization “enables Austria to assume its international responsibility” and to ensure that “Austrian space activities comply with international norms” (Explanatory Report, As to § 4, Paragraph 1). The most important provision in this regard is Article 4, Paragraph 1, Letter 3, which contains the condition that space activities must not run counter to Austria’s obligations under international law. This general condition allows the Austrian government to ensure that Austrian space activities are carried out in conformity with the Outer Space Treaty and that international obligations emanating from other areas of law are also taken into consideration (Explanatory Report, As to § 4, Paragraph 1, Letter 3). Thus the provision addresses not only Article VI but also in particular Article III of the Outer Space Treaty, which requires states to conduct space activities in accordance with international law. Article 4, Paragraph 1, Letter 3 also broadly covers the provisions contained in the Outer Space Treaty that are not explicitly addressed in the Austrian Outer Space Act through specific conditions for authorization. These include the principle of exploration and use of outer space for the benefit and in the interests of all countries contained in Article I of the Outer Space Treaty; the principle of non-appropriation according to Article II; the prohibition of the placement of nuclear weapons or weapons of mass destruction in Earth orbit included in Article IV of the Outer Space Treaty; the obligation to assist and return astronauts in case of accident, distress, or emergency landing set forth in Article V; the obligation to inform the UN Secretary-General, the public, and the international scientific community of the nature, conduct, locations, and results of space activities contained in Article XI; and the obligation to give access to stations, installations, and vehicles on celestial bodies to other states on the basis of reciprocity established in Article XII of the Outer Space Treaty.

Further provisions of the Outer Space Treaty as well as other elements of the international regulatory framework of space activities are addressed by particular conditions for authorization in the Austrian Outer Space Act, which are specified in the Outer Space Regulation. These conditions are addressed in more detail in the following.

Space Debris Mitigation: An important condition for authorization is set forth in Article 4, Paragraph 1, Letter 4 of the Outer Space Act, which requires operators of space activities to make appropriate provision for the mitigation of space debris. This condition is further defined in Article 5 of the Outer Space Act, which stipulates that provision for space debris mitigation must be made “in accordance with the state of the art and in due consideration of the internationally recognised guidelines for the mitigation of space debris.”34 This separate article on space debris mitigation was formulated to emphasize the importance of the avoidance of space debris. Article 5 and Article 4, Paragraph 1, Letter 4 must be read and applied in conjunction (Explanatory Report, As to § 5).

The Explanatory Report to the Outer Space Act clarifies that the “internationally recognized guidelines for the mitigation of space debris,” which, according to Article 5, must be taken into consideration by operators when making provision for space debris mitigation, primarily refer to the Space Debris Mitigation Guidelines of the Inter-Agency Space Debris Coordination Committee (Explanatory Report, As to § 5). The mitigation measures proposed by the Inter-Agency Space Debris Coordination Committee (IADC) concern the limitation of debris released during normal operations, the minimization of the potential for in-orbit breakups, the prevention of in-orbit collisions, and post-mission disposal (IADC Space Debris Mitigation Guidelines, IADC-02-01, Revision 1, September 2007). The Space Debris Mitigation Guidelines developed by UNCOPUOS, which are also referred to in the Explanatory Report, were largely based on the IADC Guidelines and contain very similar measures.35 While these guideline instruments are not legally binding at the international level, the requirements contained therein must be implemented by operators at the national level due to their inclusion in the Austrian space legislation as basis for the conditions for authorization regarding space debris mitigation and the assessment of their fulfillment.

As evidence that appropriate provision has been made for the mitigation of space debris, the Austrian Outer Space Regulation requires operators to submit a report on the measures taken according to the state of the art and in consideration of the internationally accepted guidelines, in particular for the avoidance of space debris and mission residue released during normal operations, for the prevention of in-orbit collisions with other space objects, and for the avoidance of in-orbit breakups, as well as for the removal of space objects from Earth orbit at the end of mission, either by controlled re-entry or by moving the space object to a sufficiently high orbit (Article 2, Paragraph 4, Austrian Outer Space Regulation). For nonmaneuverable space objects, an orbit must be chosen that ensures that the post-mission lifetime of such objects does not exceed 25 years (Article 2, Paragraph 4, Letter 1 (c), Austrian Outer Space Regulation). These requirements correspond to the recommendations set forth in the IADC and UNCOPUOS Space Debris Mitigation Guidelines. The Explanatory Report to the Outer Space Act also highlights that the mitigation of space debris represents an ongoing obligation of the operator that continues after authorization has been granted (Explanatory Report, As to § 5).

Termination of the Space Activity: Another condition for authorization related to the mitigation of space debris, in particular to the removal of space objects from orbit at the end of mission, is established in Article 4, Paragraph 1, Letter 8 of the Outer Space Act. It requires operators to make provision for the orderly termination of space activities. The Explanatory Report specifies that following the termination of a space activity, “factual and legal precautions need to be taken in a responsible manner in order to keep outer space as residue-free as possible and to hinder future space activities as little as possible” (Explanatory Report, As to § 4, Paragraph 1, Letter 8). Article 4, Paragraph 1, Letter 8 has an independent meaning in relation to Article 5 and Article 4, Paragraph 1, Letter 4 in so far as it comprises not only technical but also economic and legal precautions (Explanatory Report, As to § 4, Paragraph 1, Letter 8).

Environmental Protection: Article 4, Paragraph 1, Letter 5 of the Outer Space Act sets forth the condition that space activities must not cause harmful contamination of outer space or celestial bodies or adverse changes in the environment. This condition directly addresses the obligations related to environmental protection contained in Article IX of the Outer Space Treaty, which requires state parties to conduct the exploration of outer space and celestial bodies “so as to avoid their harmful contamination and also adverse changes in the environment of the Earth.” Article 4, Paragraph 1, Letter 5 is distinct from Article 5 and Article 4, Paragraph 1, Letter 4 in that it also encompasses other types of environmental contamination, “especially gasiform substances as well as radiation, which do not fall under the term ‘space debris’” (Explanatory Report, As to § 4, Paragraph 1, Letter 5). This condition also addresses some of the elements of the UN Principles Relevant to the Use of Nuclear Power Sources in Outer Space, which establish guidelines and criteria for the safe use of space objects with nuclear power sources on board. This includes that the design and use of such objects “shall also ensure with high reliability that radioactive material does not cause a significant contamination of outer space.”36 As evidence that a space object does not contain dangerous substances that could cause a harmful contamination of outer space or adverse changes in the environment, the Austrian Outer Space Regulation requires the operator to submit “appropriate documents” (Article 2, Paragraph 5, Austrian Outer Space Regulation).

ITU Requirements: Article 4, Paragraph 1, Letter 6 of the Outer Space Act obliges operators to fulfill the requirements of the International Telecommunication Union (ITU) concerning orbital positions and frequency assignments. This condition relates to the specific regime of the ITU, which is outside the Outer Space Treaty but crucial for the conduct of space activities, in particular for the proper functioning of space objects as well as the use of terrestrial frequencies. Article 4, Paragraph 1, Letter 6 is aimed at ensuring that the ITU standards regarding the allocation of frequencies and orbital positions are observed (Explanatory Report, As to § 4, Paragraph 1, Letter 6). As evidence that the frequencies and orbital position for the operation of a space object may be used lawfully, the operator must submit the respective license or the documents required for the frequency coordination with the ITU (Article 2, Paragraph 6, Austrian Outer Space Regulation).

Liability: Article VII of the Outer Space Treaty is addressed through Article 4, Paragraph 1, Letter 7 of the Outer Space Act. Article VII of the Outer Space Treaty establishes international liability of launching states for damage caused by their space objects. Article 4, Paragraph 1, Letter 7 in connection with Article 4, Paragraph 4 of the Outer Space Act stipulates the obligation of operators to take out insurance in order to cover liability for damage caused to persons or property. This is complemented by Article 11 of the Outer Space Act, which establishes a right of recourse of the Austrian government against operators in case Austria has compensated damage in accordance with international law.37

Safety and Security of Space Activities: The obligations of Austria as launching state under Article VII of the Outer Space Treaty and as responsible state under Article VI are also implemented more generally through the conditions set forth in Article 4, Paragraph 1, Letters 1, 2, and 3 of the Outer Space Act. Article 4, Paragraph 1, Letter 1 stipulates that operators must possess the necessary reliability, capability, and expertise to carry out space activities. Article 4, Paragraph 1, Letter 2 provides that space activities must not pose any immediate threat to the public order, to the safety of persons and property, and to public health. Article 4, Paragraph 1, Letter 3 contains the condition that space activities must not run counter to Austrian national security, Austria’s obligations under international law, or Austrian foreign policy interests. Since these provisions aim at ensuring the safety and security of national space activities, the obligations contained therein also contribute to minimizing the risk of damage for which Austria could potentially be held liable as launching state as well as the risk to face claims for compensation as responsible state.

The Austrian Outer Space Regulation contains specifications for the fulfillment of these conditions for authorization. As evidence of the reliability, capability, and expertise to carry out a space activity in accordance with Article 4, Paragraph 1, Letter 1 of the Outer Space Act, the Outer Space Regulation requires the operator to submit a security review certificate, a proof of qualification, and a list of activities previously carried out in the field of space technology or related fields. Moreover, evidence of the financial capacity together with a cost projection and financing plan for the space activity, as well as all contracts in relation to the space activity, must be submitted. In addition, the operator must provide a concept demonstrating the planned task, purpose, and objective of the space activity, as well as a description of the technical details of the space activity, including the envisaged frequency spectrum and orbital position, the energy supply, the intended payload, the communication strategy, and the technologies used at subsystem level, as well as documentation regarding the duration and termination of the space activity (Article 2, Paragraph 1, Austrian Outer Space Regulation). This aims at ensuring that the operator is economically and technically in a position to carry out and to terminate the space activity in order to avoid serious problems and dangers in connection with the space activity that might eventually have to be borne by the general public (Explanatory Report, As to § 4, Paragraph 1, Letter 1). The documents provided as evidence of the reliability, capability, and expertise of the operator are also reviewed in connection with the condition that the space activity must not run counter to national security, Austria’s obligations under international law, or Austrian foreign policy interests according to Article 4, Paragraph 1, Letter 3 of the Outer Space Act (Article 2, Paragraph 3, Austrian Outer Space Regulation). In this regard, the operator is additionally required to submit information about the payload of the space object (Article 2, Paragraph 3, Letter 2, Austrian Outer Space Regulation).

With regard to the condition that the space activity must not pose an immediate threat to the public order, the safety of persons and property, and to public health set forth in Article 4, Paragraph 1, Letter 2, the operator must demonstrate compliance with state-of-the-art knowledge regarding techniques, facilities, and methods of construction and operation whose functional operability has been tested and proven. In addition, the operator must submit the results of the tests carried out to verify the safety and solidity of the space object, as well as the emergency plans developed for the event of a failure of the communication or data connections, the loss of control over the space object, the failure of essential systems for power supply, attitude control, or the control of the trajectory, and for similar exceptional events (Article 2, Paragraph 2, Austrian Outer Space Regulation). The Explanatory Report to the Outer Space Act explains that since space activities are dangerous activities, risks to the safety and security of persons and property as well as to public health should be reduced to a minimum, and, therefore, “compliance with technical standards must be assured” (Explanatory Report, As to § 4, Paragraph 1, Letter 2).

Earth Observation: To fulfill the conditions under Article 4, Paragraph 1, Letter 2 of the Outer Space Act, the operator must moreover provide information regarding the extent to which the space activity involves observation of the Earth and the kind of data thereby collected. In particular, the degree of resolution of images of the Earth as well as the planned transfer of raw or processed data must be specified (Article 2, Paragraph 2, Austrian Outer Space Regulation). Information on the planned use and recipients of collected data must also be submitted by the operator as evidence that the space activity does not run counter to national security, Austria’s obligations under international law, or Austrian foreign policy interests according to Article 4, Paragraph 1, Letter 3 of the Outer Space Act (Article 2, Paragraph 3, Letter 1, Austrian Outer Space Regulation). Requirements regarding space activities that involve the observation of the Earth are also of relevance with respect to the UN Principles Relating to Remote Sensing of the Earth from Outer Space. The principles require, inter alia, that states disclose to concerned states information that is capable of averting phenomena harmful to the Earth’s environment or that may be useful to states affected by natural disasters (Principles X and XI, Remote Sensing Principles). They also stipulate that sensed states shall have access to data and information concerning the territory under their jurisdiction on a nondiscriminatory basis and on reasonable cost terms (Principle XII, Remote Sensing Principles). The obligation of operators to share information regarding Earth observation activities enables the Austrian government to take the appropriate steps for the fulfillment of the Remote Sensing Principles.

The Austrian Outer Space Act and the Outer Space Regulation comprehensively define conditions for authorization of space activities that allow Austria to implement its international obligations, in particular under Article VI of the Outer Space Treaty, and to ensure that its national security and foreign policy interests are safeguarded in the context of national space activities. To give additional guidance to applicants and operators regarding the compliance with the conditions for authorization, several conditions could be further clarified and additional information could be provided.38 This could include specific information on the tests that need to be carried out to verify the safety and solidity of the space object; the technological standards that have to be complied with in order to meet the requirements regarding state-of-the-art techniques and methods of construction and operation; the measures that need to be taken for the mitigation of space debris; the technical, economic, and legal precautions that are necessary for the orderly termination of the space activity; the requirements that must be complied with in order to ensure conformity with national security and Austrian foreign policy interests; the substances that should be avoided to prevent harmful contamination of outer space and the environment and further steps that could be taken to ensure environmental protection;39 as well as the measures and conduct necessary to fulfill other obligations under international law that are not explicitly addressed in the Austrian Outer Space Act through conditions for authorization but that nevertheless need to be complied with in accordance with the general condition in Article 4, Paragraph 1, Letter 3 of the Outer Space Act that space activities must not run counter to Austria’s obligations under international law. This could also increase transparency and consistency in the application of the conditions for authorization and in the assessment of their fulfillment.

Liability

Whereas state responsibility arises from the breach of an international obligation, liability establishes a duty of compensation for the consequences of acts that are not prohibited by international law, in particular the duty to make reparation for any damage caused by these acts (Cheng, 1998, pp. 7–32; Crawford, 2012, pp. 539–561).40 Space activities are not prohibited under international law, but they are regarded as hazardous undertakings that could lead to serious damage. Therefore, during the negotiations of the UN space treaties, states have accepted liability for damage caused by space objects for which they are launching states, independent of a breach of international law (Kerrest, 2005, pp. 91–92). Rules on liability have been set out in Article VII of the Outer Space Treaty and the Liability Convention of 1972. However, states have taken different approaches to the implementation of these international rules, due to distinct interpretations of the definition of the launching state and of the extent of liability. Another important aspect of the national implementation of international rules on liability is the reimbursement of states if they have paid compensation for damage in accordance with international law. Focusing on these two elements, the interpretation and implementation of international rules on liability through the Austrian Outer Space Act and the Outer Space Regulation are analyzed in the following.

The Extent of Liability—The “Launching State”

Article VII of the Outer Space Treaty establishes liability of the launching state for damage caused by its space object to other states or their natural or juridical persons on Earth, in air space or in outer space. Article VII of the Outer Space Treaty has been further elaborated in the Liability Convention of 1972. According to Article II of the Liability Convention, the launching state is absolutely liable for damage caused by its space object on the surface of the Earth or to aircraft in flight. Article III of the Liability Convention determines that in case of damage caused by a space object elsewhere than on the surface of the Earth to the space object of another state, the launching state is liable only when at fault. Through the differentiation between fault liability for damage in outer space and absolute liability for damage on Earth, the Liability Convention creates a comprehensive, victim-oriented liability system granting particular protection to victims of damage on Earth who are not directly taking part in the space activity causing the damage (Cheng, 1997, pp. 286–356; Smith, Kerrest, & Tronchetti, 2013, pp. 113–115 and pp. 124–126). Absolute liability enables the compensation of victims even when the damage is resulting from the hazardous activity itself without any breach of an international obligation or fault on the part of the launching state (Smith et al., 2013, pp. 121–122). The “launching state” is defined as a state that launches or procures the launching of a space object or from whose territory or facility a space object is launched (Article I(c), Liability Convention; Article 1(a), Registration Convention). Establishing four alternative criteria to determine the launching state ensures that at least one launching state can be identified for each space object (Kerrest, 2005, pp. 92–95; Schmidt-Tedd et al., 2013, pp. 245–247). In addition, the liability of the launching state is unlimited in amount and in time (Kerrest, 2005, pp. 92–95; Kerrest & von der Dunk, 2011, pp. 127–128; Smith et al., 2013, pp. 111–113). Neither the Outer Space Treaty nor the Liability Convention contains a cap on liability or a time limitation with regard to the period between the launch of a space object and the occurrence of the event that causes the damage. Once a state has become involved in the launch of a space object as a launching state, it will remain liable for damage caused by that space object “as long as the space object has the capacity of causing damage,” including after it has ceased to function (Kerrest & von der Dunk, 2011, p. 128; see also Kerrest & Smith, 2009, pp. 135–142). This can also include damage caused by fragments of a space object, since the term space object as used in the Liability Convention has largely been interpreted as covering also fragments of the object (Kerrest, 2005, pp. 97–98; Schmidt-Tedd & Mick, 2009, pp. 153–154; Stubbe, Kopal, & Schrogl, 2015, pp. 618–619).41 As regards the compensation that the launching state is liable to pay for the damage, Article XII of the Liability Convention stipulates that such reparation be provided as will restore the victim “to the condition which would have existed if the damage had not occurred.” Compensation could therefore also cover indirect and consecutive damage, as long as the damage is causally linked or proximate to the damage caused by the space object (Kerrest, 2005, pp. 104–105; Smith et al., 2013, pp. 174–175; von der Dunk, 2015, pp. 84–86). This allows for a full and complete compensation of the victim for the losses arising under the Convention (Kerrest & von der Dunk, 2011, pp. 127–128; Smith et al., 2013, p. 174). Furthermore, all launching states of a space object are jointly and severally liable for any damage caused by the object and may conclude agreements to apportion the financial obligation with respect to liability (Article V, Liability Convention). This unique system of liability established in international space law represents an incentive for states to exercise control over activities that may give rise to their international liability and to include liability provisions in their national space legislation. States have a vital interest “to ensure that the technology used is safe and that the operator is competent and reliable” (Marboe, 2015, pp. 137–138).

Nevertheless, some aspects of the definition of the launching state are subject to interpretation and thus render the national implementation of the international rules on liability difficult. One difficulty in this regard is the unclear meaning of “procure a launch,” which leaves room for different interpretations. Based on the ordinary meaning of the term as well as a teleological approach “procure a launch” could be interpreted in the sense of ordering or initiating a launch (Schmidt-Tedd & Mick, 2009, p. 152; Smith et al., 2013, p. 114). Nevertheless, states have chosen diverse ways of interpreting the term at the national level (von der Dunk, 2015, pp. 83–84).42 Another question is whether nongovernmental activities are covered by Article VII of the Outer Space Treaty and the Liability Convention. Also in this regard, states have taken varying approaches in their national space legislation (von der Dunk, 2015, pp. 82–84).43 The text of the Treaty and the Convention speaks only of states that launch or procure the launch of a space object and from whose territory or facility a space object is launched. However, several arguments have been advanced in academic discourse that support a broad interpretation that regards the launch and launch procurement by private entities as well as the use of private launch facilities as included in the scope of the international rules on liability. One argument is that the liability provisions must be interpreted in the context of Article VI of the Outer Space Treaty, which assimilates national space activities carried out by nongovernmental entities with governmental activities and includes private national space activities in the responsibility of states (Kerrest, 2005, pp. 93–94; Kerrest & Smith, 2009, pp. 134–135). Moreover, it has been advanced that a restrictive interpretation that excludes private activities would be contrary to the object and purpose of the Outer Space Treaty and the Liability Convention, if states could avoid being qualified as launching states simply by privatizing their space activities (Kerrest, 2005, pp. 93–94). Another argument is that at least one of the four criteria for the definition of the launching state will always be applicable (Böckstiegel, 1992, p. 15; Cheng, 1997, p. 310). Liability is attributed to a launching state regardless of the involvement of nongovernmental actors; one state or another will therefore bear the liability for space activities carried out by private entities (von der Dunk, 2011, p. 20). If a broad interpretation is adopted, the launch and launch procurement by private entities as well as the use of private facilities may, if damage occurs, give rise to international liability of the state(s) concerned. To ensure that these cases are covered by the national space legislation, private launches, private launch procurement, and the use of private launch facilities should be included in the scope of the legislation, not only if carried out on the territory of the respective state, but also if conducted by its nationals (von der Dunk, 2011, pp. 19–24).

International liability has also been one of the main considerations in the development of the Austrian space legislation. As highlighted in the Explanatory Report to the Austrian Outer Space Act, through the establishment of a national legal basis for the implementation of the international obligations under the UN space treaties “in particular, it shall be prevented that uncontrolled cases of damage and connected liability caused by unauthorised Austrian space objects occur” (Explanatory Report, General Part). The Austrian Outer Space Act and the Outer Space Regulation include comprehensive conditions for authorization regarding the capability of operators as well as the safety of space activities in order to minimize the risk of damage for which Austria could be held liable as a launching state. These conditions, as mentioned above, include that the operator of a space activity must possess the necessary reliability, capability, and expertise to carry out the activity (Article 4, Paragraph 1, Letter 1 of the Austrian Outer Space Act);44 that the space activity does not pose a threat to the public order, to the safety of persons and property, or to public health (Article 4, Paragraph 1, Letter 2, Austrian Outer Space Act);45 that the space activity does not run counter to national security, Austria’s obligations under international law, or Austrian foreign policy interests (Article 4, Paragraph 1, Letter 3, Austrian Outer Space Act);46 that the operator has made provision for the mitigation of space debris and for the orderly termination of the space activity (Article 4, Paragraph 1, Letters 4 and 8, and Article 5, Austrian Outer Space Act);47 and that the space activity does not cause harmful contamination of outer space or adverse changes in the environment (Article 4, Paragraph 1, Letter 5, Austrian Outer Space Act).48 These provisions allow to ensure that the operator is reliable and economically and technically capable of carrying out the space activity. They also allow to minimize safety and health risks from the activity, including the risk of damage caused by a space object after it has ceased to function as well as damage caused by fragments of a space object.

As to the scope of the Austrian space legislation with regard to liability, the Austrian Outer Space Act applies to the launch of space objects as well as to the operation of launch facilities carried out on Austrian territory, on board vessels or airplanes registered in Austria, by natural persons with Austrian citizenship, or by legal persons seated in Austria (Article 1 and Article 2, Letter 1, Austrian Outer Space Act). Therefore, not only the private launch of space objects from Austrian territory, but also launches by national private entities, as well as private launch facilities, are covered by the Austrian space legislation. The procurement of a launch is not explicitly mentioned in the Outer Space Act. However, the Explanatory Report specifies that Austria regards itself as a launching state that procures the launch of a space object whenever the launch requires an authorization under the Outer Space Act (Explanatory Report, As to § 9, Paragraph 2). This has the advantage that a discrepancy between liability and responsibility is avoided, since Austria would be liable as launching state according to Article VII of the Outer Space Treaty if it is also the responsible state under Article VI. Apart from the launch of a space object and the operation of a launch facility, an authorization is required for the operation and control of space objects not only on Austrian territory, but also by an operator who is an Austrian natural or legal person (Article 1, Article 2, Letter 1, and Article 3, Austrian Outer Space Act). According to the Explanatory Report “operation and control” encompass the operative and technical control of a space object, such as its supervision and steering (Explanatory Report, As to § 2, Letter 1). The “operator” is defined in the Austrian Outer Space Act as a natural or legal person who carries out or procures space activities (Article 2, Letter 3, Austrian Outer Space Act).49 This leads to the interpretation that the private operation and control of space objects from Austrian territory as well as by Austrian nationals would also be covered by the scope of the law with regard to liability. However, it remains unclear whether private procurement of space activities also falls within the scope of the law. In addition, as noted above, there seems to be a discrepancy regarding the definition of the operator in that the Explanatory Report to the Outer Space Act on the one hand, in the comments on the definition of the operator, specifies that it is not necessary that the operator carry out or procure space activities in his or her own name or on his or her own account, but on the other hand, in the explanations regarding the scope of application of the Outer Space Act, determines that space activities of Austrian natural or legal persons are only covered if they act as operators, which means that their activities are not covered if they do not act on their own account (see Explanatory Report, As to § 1, Paragraph 1, Letter 3, and As to § 2, Letter 3). A clarification in this regard would be particularly relevant to the question under which circumstances Austria considers itself the launching state of a space object. This, in turn, would be important not only for the question of liability but also for the registration of space objects.

The Austrian space legislation comprehensively covers the possible liability Austria may incur according to the international liability framework, including as a result of nongovernmental activities. Nevertheless, more clarity regarding the measures that need to be taken by operators in order to ensure the safety of space activities as well as increased certainty concerning the scope of the law with regard to liability, in particular the interpretation of “procure a launch,” especially procurement by private entities, as well as the definition of “operator” and of “operation and control” in the space legislation, could facilitate the implementation of the liability-related provisions and enhance the ability of the Austrian government to avoid that Austria’s liability would become engaged. In addition, due to the broad scope of the legislation with respect to liability, the conclusion of agreements according to Article V of the Liability Convention to apportion the financial obligations related to liability among launching states could be expedient. Such agreements not only could increase transparency and legal certainty in the application of the legislation but also would allow for a burden-sharing with regard to liability at the international level.

Right to Recourse and Insurance Obligation

An important issue related to the international liability of the launching state is the reimbursement of the state if it has paid compensation for damage in accordance with international law. In this regard, the UN General Assembly Resolution on National Space Legislation recommends that states “could consider ways of seeking recourse from operators or owners of space objects if their liability for damage under the United Nations treaties on outer space has become engaged” (Recommendation 7, Resolution on National Space Legislation). Therefore, most existing national space legislation establishes a possibility for the government to seek indemnification from a private operator, if it has paid compensation for damage caused by a space object or conduct of that operator (Marboe et al., 2015, pp. 530-534). In addition, according to Article XI of the Liability Convention, the Convention does not prevent victims of damage from pursuing claims in the courts of a launching state. The Convention thus also allows for claims against private operators under national law in national courts (Kerrest & von der Dunk, 2011, pp. 128–130). In order to ensure appropriate coverage for damage claims, the Resolution on National Space Legislation suggests that states could introduce insurance requirements in their national regulatory frameworks (Recommendation 7, Resolution on National Space Legislation). Many states therefore require operators of space activities to take out insurance to guarantee that, if compensation has been paid by the government, the amount is recoverable from the operator (Kerrest & von der Dunk, 2011, pp. 129–130; Marboe, 2015, pp. 137–138; Marboe et al., 2015, pp. 530-534). However, in this regard, a problem could arise from the lack of limitation to the international liability of the launching state, if the national space legislation establishes an unlimited right of recourse of the government against the operator (Kerrest, 2005, p. 100). In this case, it could be difficult for operators to fulfill insurance requirements, since “it is not possible to find insurance for an unlimited amount of damage” (Marboe et al., 2015, p. 596). Many national space laws therefore provide for a limitation to the liability of the operator (Kerrest & von der Dunk, 2011, pp. 129–130; Marboe et al., 2015, pp. 531–534).

The Austrian Outer Space Act in its Article 11 establishes a right of recourse of the Austrian government against operators in case Austria has compensated damage caused by the space activity of the operator in accordance with international law. A requirement for the operator to take out insurance is set forth as a condition for authorization in Article 4, Paragraph 1, Letter 7 of the Outer Space Act. Article 4, Paragraph 4 of the Outer Space Act specifies that the operator is under obligation to take out insurance covering a minimum amount of 60,000,000 euros per insurance claim in order to cover liability for damage caused to persons or property. The purpose of the liability insurance in the Austrian legislation is “to protect the operator from damages claims by those injured but also to financially absorb the potential liability of the Republic of Austria” (Explanatory Report, As to § 4, Paragraph 4).50 Moreover, Article 4, Paragraph 4 of the Outer Space Act determines that run-off liability may not be excluded or limited. This provision aims at ensuring that the insurance coverage also includes damage that occurs after the termination of the insurance contract, if the event causing the damage took place while the insurance agreement was in effect (Explanatory Report, As to § 4, Paragraph 4).

Article 11, Paragraph 2 of the Outer Space Act stipulates that, in case of damage on the surface of the Earth or to an aircraft in flight, the right of recourse of the Austrian government comprises an amount “up to the sum of the insured risk,” but no less than the minimum amount of 60,000,000 euros set out under Article 4. This ceiling represents a limitation of the operator’s liability and can enable the operator to take out an insurance as required by the Outer Space Act. However, this limitation does not apply if the damage is due to the fault of the operator or if the operator has infringed the provisions of the Outer Space Act regarding authorization. In these cases, the obligation of the operator to reimburse the government for compensation paid in accordance with international law is unlimited (Article 11, Paragraph 2, Austrian Outer Space Act). It is therefore “incumbent on the operator to take out also higher insurance” (Explanatory Report, As to § 4, Paragraph 4). If the operator takes out insurance exceeding the amount of 60,000,000 euros per insurance claim, the amount of the insured risk is relevant for the recourse of the government against the operator, so that the government is reimbursed the maximum amount covered by the insurance (Explanatory Report, As to § 11).

According to Article 4, Paragraph 4, Outer Space Act, the Austrian Minister for Transport, Innovation and Technology can determine a lower insurance sum or exempt the operator from the insurance obligation if the space activity is in the public interest, taking into account the risk emanating from the activity as well as the financial capacity of the operator. The Outer Space Act determines that a space activity is in the public interest if it serves science, research, or education (Article 4, Paragraph 4, Austrian Outer Space Act). The reasoning behind this exception is that “space activities that are anyhow mostly financed by public authorities can be exempted from the payment of insurance rates” (Explanatory Report, As to § 4, Paragraph 4). The risk connected to the space activity is evaluated on the basis of expert reports that the operator must submit together with the application for authorization. The criterion for the financial capacity of the operator gives applicants the opportunity to demonstrate that they possess sufficient financial resources to pay for damage in case of liability (Explanatory Report, As to § 4, Paragraph 4). “Thereby it shall be assured that the financial capacity of the operator to pay for the damage is not only existent at the time of authorisation but also at the time of the possible damaging event” (Explanatory Report, As to § 4, Paragraph 4). The responsible minister can thus reduce or waive the insurance requirement if the space activity serves science, research, or education, if the risk emanating from the activity is low, and if the operator has the financial capacity to pay for possible damage. These three criteria have to be weighed against each other, “even if the activity is not purely educational but the risk is low and the operator has a sound financial capacity or provides an appropriate form of security,” the operator can be exempted from the insurance obligation or the required insurance sum can be lowered (Marboe, 2012b, p. 35). Therefore, this provision on the one hand allows for legal certainty, in that it establishes criteria for the decisions of the responsible minister regarding the reduction or waiving of the insurance requirement, and on the other hand, also leaves some room for flexibility in the minister’s decisions to take into account the specificities of the individual situation.

Nevertheless, a difficulty could arise for operators from the fact that while the Outer Space Act permits the exemption of the operator from the insurance obligation, it does not foresee the possibility to also waive the right of recourse of the government against the operator. Another uncertainty concerns how the three criteria for the reduction or waiving of the insurance requirement are weighed against each other and to what degree each criterion must be fulfilled. While the safety criterion will most likely need to be fulfilled to a relatively high degree to comply with other provisions of the Outer Space Act, such as the conditions for authorization regarding the safety of persons and property and public health, or the requirements relating to the mitigation of space debris, this seems less clear with regard to the other two criteria. Regarding the criterion of the public interest in the space activity, which has a prominent position in the text of the provision, the focus on scientific, research, and educational activities can be explained by the fact that, at the time of the drafting of the Outer Space Act, Austrian space activities were mainly dedicated to science, research, and education (Marboe, 2012b, p. 34). However, this limitation could imply that certain activities are excluded from the possibility of an exemption from the insurance obligation or a lowering of the insurance sum. This could, for instance, be the case for space activities undertaken by startups and smaller firms that are not serving scientific or educational purposes but may also not (yet) possess large financial means. These activities might nevertheless be in the public interest for instance because they create new jobs and contribute to the strengthening of the national economy and space industry.

The Austrian space legislation contains comprehensive provisions regarding a right of recourse as well as insurance requirements, which allow for a reimbursement of the Republic of Austria if it has paid compensation for damage in accordance with international law. The legislation also establishes criteria for the possible reduction or waiving of the insurance requirement for space activities that are in the public interest. In this regard, a more inclusive definition of “public interest” in the Outer Space Act, going beyond science, research, and education, could extend the scope of application of the provisions regarding the lowering or waiving of the insurance requirement and could enable the Austrian government to pursue broader policy goals. In addition, more clarity regarding the scope, weight, and modalities for the fulfillment of the criteria for the exemption from the insurance obligation or the reduction of the insurance sum could facilitate not only the application for such exemption or reduction by operators, but also the transparent implementation of the law by the government in fulfilling the obligations of Austria as a launching state.

Registration

Closely related to the qualification of a state as launching state of a space object is alsothe registration of space objects. International space law prescribes the registration of space objects at the national and the international level. Article VIII of the Outer Space Treaty stipulates that the “State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space.” Article VIII thus establishes the general concept of registration by implying the national registration of space objects and links it to jurisdiction and control (Schmidt-Tedd & Mick, 2009, pp. 147–152; von der Dunk, 2015, pp. 94–95). This is further elaborated in the Registration Convention of 1975, which establishes compulsory national and international registration.51

National Registration

With regard to the national registration of space objects, Article II, Paragraph 1 of the Registration Convention requires launching states to establish and maintain a national registry of space objects. It furthermore contains an obligation of states to inform the UN Secretary-General of the establishment of such national registries. In this regard, an online index of notifications by member states and organizations regarding the establishment of national registries is maintained by UNOOSA and provides a publicly available overview of existing national registries.52 In addition, Article II, Paragraph 1 requires states to enter into their national registries space objects for which they qualify as launching states. The qualification as a launching state is therefore an explicit prerequisite for the registration of space objects. The definition of the launching state in the Registration Convention is identical to the definition contained in the Liability Convention and refers to a state that launches or procures the launch of a space object, or from whose territory or facility a space object is launched (Article I(a), Registration Convention). However, as noted above, different interpretations exist concerning the scope of this definition, in particular with regard to the meaning of to “procure a launch” and the activities of private entities. This has led to different approaches by states concerning the registration of space objects for which they regard themselves as launching state (Marboe et al., 2015, pp. 500–502 and pp. 590–593; Schmidt-Tedd et al., 2013, pp. 259–260).

In case there is more than one launching state for a space object, Article II, Paragraph 2 of the Registration Convention prescribes that all sates qualifying as launching states of that space object “shall jointly determine which one of them shall register the object.” The registration of the space object serves to attribute jurisdiction and control to one of the launching states (Schmidt-Tedd et al., 2013, pp. 245–247). Only one of the launching states should register the space object, since jurisdiction and control should only be exercised by one state (Marboe et al., 2015, pp. 591–592; see also Schmidt-Tedd & Mick, 2009, p. 147). If no such agreement is reached among launching states, this can lead to positive or negative conflicts of competence regarding registration, in case a space object is registered by more than one state or if it is not registered by any state (Schmidt-Tedd et al., 2013, pp. 256–257). National regulatory frameworks should therefore clearly determine in which cases a state considers itself the launching state of a space object for the purpose of registration (Marboe, 2015, p. 137). With regard to the question which state is the most appropriate state to register a space object, UN General Assembly Resolution 62/101 on Recommendations on enhancing the practice of States and international intergovernmental organizations in registering space objects, suggests a unification of registration and responsibility by proposing that space objects should be included in the registry of the state that is responsible for their operation under Article VI of the Outer Space Treaty.53 This ensures that the state that bears international responsibility for a space activity also has the right and possibility to exercise jurisdiction and control over the space object involved in the activity (Marboe, 2015, p. 136). Since Article VIII of the Outer Space Treaty reserves the right to retain jurisdiction and control to the state of registry, registration is necessary to enable the state responsible for a space activity to apply its national law to this activity in order to fulfill its international obligations of ensuring that national activities are carried out in conformity with the Outer Space Treaty as well as of authorizing and supervising nongovernmental activities (Marboe et al., 2015, pp. 591–592; see also Schmidt-Tedd & Mick, 2009, p. 159).

Austria has implemented these international obligations through Article 9 of the Outer Space Act. Article 9, Paragraph 1 determines that the maintenance of a national registry is incumbent upon the Minister for Transport, Innovation and Technology. Austria notified the UN Secretary-General in January 2017 of the establishment of a national registry of objects launched into outer space.54 According to Article 9, Paragraph 2 of the Outer Space Act, all space objects for which Austria is considered to be the launching state under the Registration Convention must be entered into this registry. Thus, space objects need to be registered whenever Austria launches or procures the launch of the space object, or if the object is launched from Austrian territory or from an Austrian facility. The Explanatory Report to the Outer Space Act specifies that Austria regards itself as a launching state that procures the launch of a space object whenever the launch requires an authorization under Article 3 of the Outer Space Act (see Explanatory Report, As to §9, Paragraph 2). As mentioned above, authorization is required for all space activities for which Austria regards itself as the responsible state, namely the launch, operation, or control of a space object as well as the operation of a launch facility carried out on Austrian territory, on board vessels or airplanes registered in Austria, or by an operator who is a natural person with Austrian citizenship or a legal person seated in Austria (Article 1, Article 2, Letter 1, and Article 3, Austrian Outer Space Act). However, it is not entirely clear whether the scope of the law with regard to registration covers the procurement of launches by nongovernmental entities, as well as space activities of operators who do not act on their own account. For situations where, aside from Austria, other states also qualify as launching states of a space object, Article 9, Paragraph 3 of the Outer Space Act stipulates that the agreement according to Article II, Paragraph 2 of the Registration Convention is relevant for the registration in Austria.55

The Austrian space legislation therefore allows the Austrian government to fully implement the international obligations regarding the national registration of space objects, to avoid positive or negative conflicts of competence with regard to registration, and to apply its legislation to national space activities in order to fulfill its international obligations as responsible state. Nevertheless, greater clarity concerning the definition of “operator” and the meaning of “procure a launch” could enhance certainty and transparency in the application of the registration-related provisions of the legislation.

International Registration

With regard to registration at the international level, Article III of the Registration Convention requires the UN Secretary-General to maintain an international register of space objects and determines that full and open access should be given to the information in this register. The responsibility for the maintenance of the register has been delegated to UNOOSA, so that the Office administers the register on behalf of the Secretary-General and makes the information publicly available (Schmidt-Tedd et al., 2013, pp. 298–299).56 To this end, the Online Index of Objects Launched into Outer Space was created by UNOOSA in 2001 as a reference tool that facilitates access to registration information.57 Concerning the information that is recorded in this international register, Article IV, Paragraph 1 of the Registration Convention requires the state of registry to furnish “as soon as practicable” launch-related and orbital information concerning space objects carried on its national registry to the UN Secretary-General (Article IV, Paragraph 1, Registration Convention). This includes the name of the launching state or launching states; an appropriate designator or the registration number of the space object; the date and location of launch; the basic orbital parameters, including nodal period, inclination, apogee, and perigee; and the general function of the space object. In addition, according to Article IV, Paragraph 2 of the Registration Convention, the state of registry “may, from time to time, provide the Secretary-General of the United Nations with additional information concerning a space object carried on its registry” (Article IV, Paragraph 2, Registration Convention). Furthermore, the Registration Convention in Article IV, Paragraph 3 establishes an obligation of the state of registry to “notify the Secretary-General of the United Nations, to the greatest extent feasible and as soon as practicable, of space objects concerning which it has previously transmitted information, and which have been, but no longer are, in Earth orbit” (Article IV, Paragraph 3, Registration Convention). This includes the provision of information regarding the de-orbiting, decay, re-entry, recovery, and landing of registered space objects.58 However, the Registration Convention does not contain any further specification regarding the content and nature of the required information or the modalities of submission. In addition, the use of the unspecific formulations “as soon as practicable,” “from time to time” and “to the greatest extent feasible” with regard to the scope and terms of transmission of information has led to different approaches by states in fulfilling these provisions of the Registration Convention (Schmidt-Tedd et al., 2013, pp. 261–297 and pp. 303–304).

In order to enhance and harmonize international registration practices, the Registration Practice Resolution provides specifications on the nature of the information transmitted. This includes the Committee on Space Research (COSPAR) international designator; the Coordinated Universal Time as the time reference for the date of launch; kilometres, minutes, and degrees as the standard units for basic orbital parameters; and any useful information relating to the function of the space object, in addition to the general function requested by the Registration Convention (Recommendation 2(a), Registration Practice Resolution). The resolution also provides a list of additional information that can be furnished to the Secretary-General, including the geostationary orbit location, a change of status in operations, the approximate date of decay or re-entry, and the date and physical conditions of moving a space object to a disposal orbit, as well as a web link to official information on space objects (Recommendation 2(b), Registration Practice Resolution). The “change of status in operations,” as referred to in the resolution, would for instance include the information that a space object is no longer functional, that it is no longer in space, or that it has changed position (Schmidt-Tedd, Hedman, & Hurtz, 2015, pp. 440–441).

In addition, the resolution recommends that, following a change in supervision of a space object in orbit, additional information should be transmitted to the Secretary-General, such as the date of change in supervision and the identification of the new owner or operator, as well as any change of the orbital position or the function of the space object (Recommendation 4, Registration Practice Resolution). This recommendation addresses the situation where, due to a cross-border transfer of operation or ownership of a space object, the state of registry is no longer the responsible state according to Article VI of the Outer Space Treaty. However, since according to Articles I and II of the Registration Convention, the state of registry can only be a launching state, this raises difficulties if the responsible state after the transfer is not a launching state of the space object. Therefore, the state of registry must ensure that it is informed about a cross-border transfer of operation so that it can make an arrangement with the responsible state to clarify legal questions in their internal relation and submit information concerning the change in supervision to the UN Secretary-General, as recommended in the resolution, in order to make the change transparent also at the international level (Schmidt-Tedd et al., 2015, pp. 453–454).

Moreover, the Resolution requests UNOOSA to make available a model registration form to assist states in the submission of registration information (Recommendation 5, Registration Practice Resolution). UNOOSA has therefore developed a registration information submission form that incorporates information provided in conformity with the Registration Convention (Part A), additional information voluntarily provided in accordance with the Registration Practice Resolution (Part B), and information submitted following a change in supervision of a space object as recommended in the Registration Practice Resolution (Part C), as well as additional voluntary information that is not contained in the Registration Convention or the Registration Practice Resolution for use in the UN register, including the space object’s owner or operator, the launch vehicle, and the celestial body the object is orbiting, as well as other information relating to the space object that the state of registry may wish to furnish to the UN (Part D).59

According to Article II of the Registration Convention, the contents of the national registry as well as the conditions under which it is maintained are determined by the state of registry (Article II, Paragraph 3, Registration Convention). Nevertheless, the information transmitted to the UN Secretary-General must be in compliance with international obligations, particularly the Registration Convention (Schmidt-Tedd et al., 2013, pp. 259–261). In this regard, the UN General Assembly Resolution on National Space Legislation recommends that operators or owners of space objects be requested to submit information to the national authority maintaining the national register in order to enable the state of registry to transmit the relevant information to the UN Secretary-General in accordance with applicable international instruments, including the Registration Convention, and in consideration of the Registration Practice Resolution (Recommendation 6, Resolution on National Space Legislation).60

Provisions regarding the information that must be provided by the operator of a space object, entered into the national registry, and transmitted to the UN Secretary-General are contained in Article 10 of the Austrian Outer Space Act. Article 10, Paragraph 1 lists the information that is to be entered into the national registry. It includes not only information that Austria is obliged to submit to the UN Secretary-General according to Article IV of the Registration Convention, but also “additional information necessary and reasonable” for the implementation of the Outer Space Act (Explanatory Report, As to §10, Paragraph 1). Article 10, Paragraph 1, Letters 1 to 5 largely correspond to Article IV, Paragraph 1 of the Registration Convention and refer to the name of the launching state or states; an appropriate designation, the registration number, and the ITU frequency allocation number of the space object; the date and location of launch; the basic orbital parameters, including nodal period, inclination, apogee, and perigee; and the general function of the space object. Article 10, Paragraph 1, Letters 6 and 7 list additional information that is not required by the Registration Convention, namely the manufacturer of the space object as well as the owner and the operator of the space object. Information regarding the space object’s owner and operator is, however, requested in Part D of the registration information submission form developed by UNOOSA. In addition, according to Article 10, Paragraph 1, Letter 8, further information is to be entered into the national registry, which the Minister for Transport, Innovation and Technology may determine by means of a regulation, insofar as this is required by the technological state of the art, by international legal obligations, or by relevant decisions of international organizations (Explanatory Report, As to § 10, Paragraph 1). The Explanatory Report to the Outer Space Act specifies that decisions of international organisations include also those decisions that have the status of recommendations and are not of a binding character, like the Registration Practice Resolution (Explanatory Report, As to § 10, Paragraph 1).

According to Article 10, Paragraph 2 of the Outer Space Act, the operator must submit the registration information contained in Article 10, Paragraph 1 to the Minister for Transport, Innovation and Technology. Moreover, Article 10, Paragraph 3 requires the operator to submit to the minister all modifications relevant to the registration information contained in Article 10, Paragraph 1. Relevant modifications regarding the space object may include the end of its operability, a change of its function, a change of its orbit, or a change of operator (Explanatory Report, As to § 10, Paragraph 3). In addition, according to Article 6 of the Outer Space Act, the operator must also notify the minister of the planned or imminent termination of the space activity as well as of all incidents that render the carrying out of the space activity impossible. These provisions cover information required not only by Article IV of the Registration Convention but also by the Registration Practice Resolution, particularly regarding the change of status in operation.

With regard to the time frame for the submission of the registration information by the operator, Article 10, Paragraph 2 of the Outer Space Act stipulates that the information must be submitted “immediately after the launch” of the space object. The Outer Space Regulation specifies that the information must be provided “immediately after the launch, and at the latest within two weeks” (Article 6, Paragraph 1, Austrian Outer Space Regulation). At the same time, the Explanatory Report to the Outer Space Act determines that the information is to be submitted immediately after the space object has been successfully launched and has reached its orbit, whereby immediately “shall mean in no case longer than one month” (Explanatory Report, As to § 10, Paragraph 2). The notification of incidents regarding the conduct of the space activity as well as of its termination is, according to Article 6 of the Outer Space Act, to be undertaken “immediately,” this is, however, not further defined and no clear time frame is specified (Article 6, Austrian Outer Space Act).

Article 10, Paragraph 4 of the Outer Space Act requires the Minister for Transport, Innovation and Technology to communicate the registration information contained in Article 10, Paragraph 1, Letters 1 to 5 as well as modifications to the registration information referred to in Paragraph 3 to the UN Secretary-General. The information is to be submitted via the Austrian Foreign Ministry (Article 10, Paragraph 4, Austrian Outer Space Act), which undertakes the transmission to the UN through the Permanent Mission of Austria to the UN in Vienna, whereby the registration form developed by UNOOSA is used.61 The information contained in Article 10, Paragraph 1, Letters 1 to 5 that the Minister for Transport Innovation and Technology is obliged to communicate to the UN Secretary-General also includes the ITU frequency allocation number of the space object according to Article 10, Paragraph 1, Letter 2. The ITU frequency allocation number, as specified in the Explanatory Report to the Outer Space Act, assigns a frequency to a space object and “shall allow a clear identification of the space object” (Explanatory Report, As to §10, Paragraph 1). While information regarding the ITU frequency allocation number is neither required by the Registration Convention or the Registration Practice Resolution nor explicitly contained in the UNOOSA registration information submission form, it can be transmitted by the minister under Part D of the registration form, which allows for the submission of additional information relating to a space object that the state of registry wishes to furnish to the UN.62

The Austrian Outer Space Regulation sets forth further information that must be provided by the operator in addition to the information required under the Outer Space Act and also contains specifications regarding the information that must be submitted in accordance with Article 10 of the Outer Space Act. According to Article 6, Paragraph 2 of the Outer Space Regulation, within two weeks after the launch, the operator must provide the COSPAR international designator, the date and Coordinated Universal Time as the time reference for the date of launch, the expected date and Coordinated Universal Time of the re-entry of the space object, and the date and Coordinated Universal Time of moving the space object to a disposal orbit, as well as a web link to official information on the space object. This provision reflects several recommendations contained in the Registration Practice Resolution regarding additional information that may be submitted to the UN Secretary-General. Moreover, the operator must also furnish information about the launch vehicle and the celestial body the space object is orbiting (Article 6, Paragraph 2, Austrian Outer Space Regulation), which corresponds to additional voluntary information requested in Part D of the registration information submission form.

In addition, the Austrian Outer Space Regulation stipulates that, in case of a change of operator, the original operator must provide the date and Coordinated Universal Time of the change of operator and the identification of the new operator; in case of a change of orbital position, the parameters of the original orbital position and the parameters of the new orbital position; and any change of function of the space object (Article 6, Paragraph 2, Austrian Outer Space Regulation). This corresponds to recommendations in the Registration Practice Resolution regarding the submission of information to the UN Secretary-General in the event of a cross-border change in supervision. It enables the Austrian government to be informed about any change of operator and, in case this change entails a cross-border transfer of supervision, to conclude an agreement with the responsible state to clarify internal legal questions as well as to transmit the relevant information to the UN Secretary-General in order to make this change visible at the international level.63

The provisions related to the registration of space objects in the Outer Space Act and the Outer Space Regulation ensure that the Austrian government can furnish the information required under Article IV, Paragraph 1 of the Registration Convention to the UN Secretary-General. They also allow the government to follow to a large extent the recommendations set forth in the Registration Practice Resolution regarding the nature of the transmitted information as well as the content of additional information that may be furnished to the UN Secretary-General, also in the case of a cross-border transfer of supervision. In addition, they enable the government to submit the registration information according to the registration information submission form developed by UNOOSA, including additional voluntary information contained in Part D of the form that goes beyond the Registration Convention and the Registration Practice Resolution. Moreover, they ensure that the government can, if necessary, update the registration information that has been provided to the UN Secretary-General.

Thus, the Austrian national space legislation, if fully applied, enables the Austrian government to comprehensively fulfill the international obligations regarding the registration of space objects at the national and the international level. The practical application of the space legislation and the implementation of international requirements concerning the registration of space objects could be further improved by providing increased certainty and clarity regarding the time frame for the submission of registration information, the modalities for the notification of modifications to this information, and the provision of information with regard to the decay, re-entry, and de-orbiting of space objects, as well as of information contained in the Registration Practice Resolution that is currently not explicitly referred to in the registration-related provisions of the Austrian Outer Space Act and the Outer Space Regulation, such as kilometers, minutes, and degrees as the standard units for basic orbital parameters, the geostationary orbit location, and the physical conditions of moving a space object to a disposal orbit.

Conclusion

The analysis of international obligations and requirements regarding responsibility, authorization, liability, and registration and their implementation by Austria through its national space legislation shows that the Austrian Outer Space Act and the Outer Space Regulation represent an important step toward Austria’s compliance with its international obligations and the national implementation of the requirements set forth under international space law.

With regard to the scope of the legislation, Austria has adopted a broad approach. The material scope, which defines the activities covered, includes the launch, operation, and control of space objects, as well as the operation of launch facilities. The personal and territorial scope, which determines under what circumstances Austria regards itself as the responsible state for national space activities according to Article VI, Sentence 1 of the Outer Space Treaty, covers space activities carried out on Austrian territory, on board vessels or airplanes registered in Austria, or by an operator who is a natural person with Austrian citizenship or a legal person seated in Austria. Thus, not only activities over which Austria exercises territorial jurisdiction but also activities over which it has personal jurisdiction fall within the scope of the legislation, which allows it to avoid control deficits that could prejudice the application of international space law. This broad scope enables Austria to fully implement the comprehensive objective of the Outer Space Treaty at the national level and to responsibly fulfill international obligations, in particular regarding its responsibility for national space activities, the authorization and supervision of private space activities, and its potential liability as launching state, as well as the registration of space objects. The practical application of the law could be enhanced and transparency increased by providing greater clarity concerning the scope of the legislation with regard to the procurement of space activities, as well as concerning the precise meaning of “operation and control” of space objects, and the definition of “operator,” in particular whether the operator of a space activity must act on his or her own account in order for the activity to be covered by the scope of the law.

Regarding the obligation to authorize and supervise nongovernmental national space activities pursuant to Article VI, Sentence 2 of the Outer Space Treaty, Austria has adopted an extensive interpretation and considers itself the appropriate state to perform authorization and supervision of all space activities for which it regards itself as the responsible state (i.e., over which it has territorial or personal jurisdiction). The Austrian Outer Space Act and Outer Space Regulation also define the competent authority responsible for authorizing and supervising space activities as well as the procedures and modalities for granting, modifying, and revoking the authorization, including in cases of a transfer of ownership of a space object in orbit. Moreover, conditions for the authorization of space activities are determined, including the consistency of space activities with Austria’s obligations under international law as well as with national security and foreign policy interests, the minimization of risks to the safety of persons and property and to public health, the mitigation of space debris, the avoidance of a harmful contamination of outer space, and the reliability and capability of the operator, as well as insurance requirements. In addition, provisions for the supervision of authorized space activities are established that include notification requirements for operators regarding modifications and incidents related to the conduct and termination of space activities. Furthermore, penalties for the infringement of the Outer Space Act and the Outer Space Regulation are set forth in order to ensure compliance. These provisions enable Austria to comprehensively implement its obligations under Article VI of the Outer Space Treaty to ensure that national activities are carried out in conformity with the Outer Space Treaty and to authorize and continually supervise nongovernmental space activities, also in the event of a change of operator. The broad scope of the legislation allows Austria to avoid negative conflicts of competence with regard to authorization and supervision, as well as to ensure that Austrian law is fully applied and Austrian interests are safeguarded in the context of national space activities, which is particularly important in cases where no other state is competent, or regards itself as competent, to authorize and supervise a space activity, or where the applicable national laws contain different conditions and modalities for authorization and supervision. To give further guidance to applicants and operators regarding compliance with the conditions for authorization as well as to increase transparency and consistency in the application of these conditions and in the assessment of their fulfillment, several conditions could be further clarified and additional information could be provided. For example, this could include information on the tests that need to be carried out, the requirements and technological standards that have to be complied with, and the measures and precautions that need to be taken in order to fulfill the conditions regarding space object and mission safety, national security and foreign policy interests, space debris mitigation, and environmental protection, as well as regarding the compliance with international law obligations that are not explicitly addressed in the legislation through conditions for authorization. Furthermore, in situations where, due to the broad scope of the legislation, in addition to Austria other states may also be competent to authorize and supervise a space activity as a result of concurring jurisdiction over the activity, the application process could be facilitated for operators as much as possible by avoiding duplicative authorization requirements. This may require a certain degree of cooperation and coordination with other states competent for authorization and supervision. Moreover, the capability of the Austrian government to continuously supervise authorized space activities could be enhanced through an additional regular reporting requirement for operators.

In addition, the Austrian space legislation comprehensively covers the possible liability Austria may incur according to the international liability framework, including as a result of nongovernmental activities. The legislation aims at minimizing the risk of damage for which Austria could potentially be held liable as a launching state through the establishment of conditions for authorization regarding the capability of the operator and the safety of the space activity. It also provides for a right of recourse of the Austrian government against operators in case Austria has compensated damage in accordance with international law, and it sets forth an obligation of operators to take out insurance in order to ensure that, if compensation has been paid, the amount is also recoverable in practice. By setting the possible recourse of the government at an amount up to the sum of the insured risk, but at no less than the minimum amount of insurance defined in the Outer Space Act, the legislation enables the operator to take out insurance and at the same time ensures that the government is reimbursed the maximum amount covered by the insurance. The legislation also establishes the possibility to exempt the operator from the insurance obligation or to reduce the insurance sum, if the space activity is in the public interest (i.e., if it serves science, research, or education), if the risk connected to the activity is low, and if the operator can demonstrate sufficient financial means. In this regard, more clarity concerning the fulfillment of these three criteria could facilitate the practical implementation of the legislation. Moreover, a broader definition of “public interest” could extend the scope of application of the provisions regarding the possible reduction or waiving of the insurance requirement to space activities that are not serving scientific or educational purposes but might nevertheless be in the public interest, which could allow the government to pursue more extensive space policy goals. In addition, in light of the broad scope of the legislation concerning liability, the conclusion of agreements to apportion the financial obligations related to liability among launching states according to Article V of the Liability Convention could be beneficial, not only to enhance transparency and legal certainty in the application of the legislation, but also to allow for burden-sharing at the international level with regard to liability. At the same time, increased clarity concerning the scope of the law with respect to liability, in particular regarding the procurement of launches by private entities, could facilitate the implementation of the liability-related provisions and enhance the ability of the Austrian government to avoid having Austria’s liability engaged.

Finally, the Austrian space legislation also allows the Austrian government to comply with the international obligations regarding the registration of space objects. It provides for the maintenance of a national registry and determines the information that must be submitted by operators to be entered into the national registry and transmitted to the UN for the registration of space objects at the international level. This ensures that the Austrian government can furnish the information required under Article IV, Paragraph 1 of the Registration Convention to the UN Secretary-General. Moreover, the registration-related provisions of the Outer Space Act and the Outer Space Regulation enable the government to largely follow the recommendations contained in the Registration Practice Resolution with regard to the submission of additional information to the UN Secretary-General, including in the case of a cross-border transfer of supervision. They also allow the government to submit the registration information according to the registration form developed by UNOOSA and to update the furnished information if expedient. In addition, the broad scope of the legislation ensures that Austrian law can be applied to space activities for which Austria bears international responsibility and that Austria’s international obligations as a responsible state can be fulfilled. Moreover, the legislation allows that positive or negative conflicts of competence regarding the registration of space objects with other sates qualifying as launching states can be avoided by requiring the government to conclude agreements according to Article II of the Registration Convention to determine which state should undertake the registration. The application of the space legislation and the implementation of international requirements concerning the registration of space objects could be further improved by providing increased certainty and clarity regarding the precise scope of the law with respect to registration, the time frame for the submission of registration information, the modalities for the notification of modifications to this information, and the provision of information with regard to the decay, re-entry, and de-orbiting of space objects, as well as of information contained in the Registration Practice Resolution that is currently not referred to in the registration-related provisions of the Austrian Outer Space Act and the Outer Space Regulation.

Thus, the Austrian Outer Space Act and the Outer Space Regulation represent comprehensive national space legislation that, if fully applied, allows the Austrian government to comply with Austria’s international obligations in the areas of responsibility, authorization, liability, and registration. The analysis above demonstrates that in order to further enhance the implementation of international requirements and to facilitate the application of the Austrian space legislation, several additional steps could be taken to clarify some of the provisions of the Outer Space Act and the Outer Space Regulation, as well as to provide additional guidance and to increase certainty and transparency regarding their scope and practical implementation. Moreover, the analysis shows that international coordination and cooperation need to form an important part of the national implementation of Austria’s obligations under international law through the application of the Austrian space legislation, in order to ensure that Austrian interests are safeguarded and Austrian law is fully applied in the context of space activities that fall under the scope of the legislation, to avoid unnecessary burdens for operators, and to allow for transparency and legal certainty in the application of the legislation, as well as to prevent positive and negative conflicts of competence and to enable burden-sharing at the international level with regard to the implementation of international space law.

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Notes

  • 1. Austrian Federal Law on the Authorisation of Space Activities and the Establishment of a National Space Registry—Austrian Outer Space Act (Bundesgesetz über die Genehmigung von Weltraumaktivitäten und die Einrichtung eines Weltraumregisters—Weltraumgesetz) entered into force on December 28, 2011 (Bundesgesetzblatt I No 132/2011 of December 27, 2011).

  • 2. Regulation of the Federal Minister for Transport, Innovation and Technology in Implementation of the Federal Law on the Authorization of Space Activities and the Establishment of a National Space Registry—Austrian Outer Space Regulation (Verordnung der Bundesministerin/des Bundesministers für Verkehr, Innovation und Technologie zur Durchführung des Bundesgesetzes über die Genehmigung von Weltraumaktivitäten und die Einrichtung eines Weltraumregisters—Weltraumverordnung) entered into force on February 27, 2015 (Bundesgesetzblatt II No 36/2015 of February 26, 2015).

  • 3. The two nanosatellites BRITE-Austria/TUGSAT-1 and UniBRITE were launched in February 2013 and are part of the BRITE (BRIght Target Explorer) Constellation, together with two Polish satellites and one Canadian satellite. The scientific goal of the interdisciplinary and interuniversity research project is the measurement of the variability of the brightness of massive luminous stars. TUGSAT-1 was built by the Graz University of Technology and financed by the Austrian Ministry for Transport, Innovation and Technology (BMVIT) through the Austrian Space Applications Programme (ASAP), which is implemented by the Austrian Aeronautics and Space Agency (ALR) of the Austrian Research Promotion Agency (FFG). UniBRITE was ordered from the University of Toronto by the Department of Astronomy at the University of Vienna in 2005. The Ministry only became aware of this satellite in 2009. See Explanatory Report to the Austrian Outer Space Act, General Part; Marboe (2012b, pp. 27–29). A detailed description of the two satellites and their scientific mission can be found in Levtchev (2011).

  • 4. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature January 27, 1967, entered into force October 10, 1967, 610 UNTS 205, hereafter Outer Space Treaty.

  • 5. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature April 22, 1968, entered into force December 3, 1968, 672 UNTS 119, hereafter Rescue Agreement.

  • 6. Convention on International Liability for Damage Caused by Space Objects, opened for signature March 29, 1972, entered into force September 1, 1972, 961 UNTS 187, hereafter Liability Convention.

  • 7. Convention on Registration of Objects Launched into Outer Space, opened for signature January 14, 1975, entered into force September 15, 1976, 1023 UNTS 15, hereafter Registration Convention.

  • 8. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature December 18, 1979, entered into force July 11, 1984, 1363 UNTS 3, hereafter Moon Agreement.

  • 9. See UN General Assembly Resolution 1472 (XIV) of December 12, 1959: International cooperation in the peaceful uses of outer space.

  • 10. Austrian space industry is active in niche areas in the upstream and downstream sector. Examples include thermal and mechanical subsystems for satellites and launchers, electronics for control and signal processing, subsystems for testing and operating satellites, mechanical and electrical ground-support equipment, and satellite-based communication for fixed and mobile applications. Austrian Federal Ministry for Transport, Innovation and Technology. (2017). Austrian Technology in Space—An Overview of Austrian Space Industry and Research.

  • 11. Article 6 of the Rescue Agreement, Article XXII of the Liability Convention, and Article VII of the Registration Convention provide the possibility for international intergovernmental organizations to declare acceptance of the rights and obligations contained in these treaties. ESA has made these declarations. See UN Committee on the Peaceful Uses of Outer Space, Status of International Agreements relating to activities in outer space as of January 1, 2018, Legal Subcommittee Fifty-seventh session , A/AC.105/C.2/2018/CRP.3, April 9, 2018.

  • 12. Via Article III of the Outer Space Treaty, international law also applies to human activities in outer space. Besides treaties, this also includes other sources of public international law, in particular customary international law and general principles of law. See Article 38, Statute of the International Court of Justice, opened for signature June 26, 1945, entered into force October 24, 1945, USTS 993.

  • 13. States have chosen a variety of different forms for their national regulatory frameworks. They may consist of a single act that regulates only certain aspects of space activities, such as launches; they may comprise a series of national legal instruments, each addressing a particular area of space activities; or they may consist of a comprehensive unified act that regulates all important aspects of space activities and may be accompanied by a lower-ranking implementation regulation. For an overview, see Sánchez Aranzamendi, Riemann, & Schrogl (2015, pp. 384–385).

  • 14. Another example is the “Sofia Guidelines for a Model Law on National Space Legislation” elaborated by the International Law Association (ILA) and adopted in 2012. See Resolution No. 6/2012, “Space Law” adopted at the 75th Conference of the International Law Association held in Sofia, Bulgaria, August 26 to 30, 2012. See also the German “Project 2001” and “Project 2001 Plus” which have resulted in the development of building blocks used as a basis for national space legislation. See Böckstiegel (2002) and Hobe, Schmidt-Tedd, & Schrogl (2006).

  • 15. UN Committee on the Peaceful Uses of Outer Space, Report of the Working Group on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space on the work conducted under its multiyear workplan, Legal Subcommittee, Fifty-first session, A/AC.105/C.2/101, April 3, 2012; UN General Assembly Resolution 68/74 of December 11, 2013: Recommendations on national legislation relevant to the peaceful exploration and use of outer space, hereafter Resolution on National Space Legislation.

  • 16. Note that this compromise was negotiated during the drafting of UN General Assembly Resolution 1962 (XVIII) of December 13, 1963: Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. Principle 5 of the Declaration was, with minor changes, transferred to Article VI of the Outer Space Treaty. See Gerhard (2009, pp. 105–106) and von der Dunk (2011, pp. 4–8).

  • 17. Generally, states are not directly responsible for the conduct of individuals or entities acting in a private capacity. State responsibility is limited to acts of organs of government or others who exercise governmental authority or act under the direction, instruction, or control of the state. The conduct of private entities gives rise to state responsibility only if the state fails to live up to its due diligence duty to prevent violations of the rights of other states committed by private entities under its jurisdiction. See Cassese (2005, pp. 245–251), Cheng (1998), Crawford & Olleson (2014, pp. 453–460), Kolb (2017, pp. 62–66, pp. 74–101), and Shaw (2017, pp. 589–639). See also International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Report of the International Law Commission on the work of its Fifty-third Session, April 23–June 1 and July 2–August 10, 2001, General Assembly, Official Records, Fifty-sixth Session, Supplement No.10 (A/56/10), Paragraph 77, 2001, Chapter II, Attribution of Conduct to a State.

  • 18. Note that, according to Article III of the Outer Space Treaty, states are under the obligation to conduct their space activities in accordance with public international law.

  • 19. The definition and delimitation of outer space remain a debated issue at the Legal Subcommittee of UNCOPUOS. See Diederiks-Verschoor & Kopal (2008, pp. 15–20) and Lyall & Larsen (2018, pp. 135–162). See also documents of the Working Group on the Definition and Delimitation of Outer Space of the Legal Subcommittee.

  • 20. Note, however, that not all national space laws define “space activity,” some instead enumerate concrete activities that require authorization under the respective legislation. Of the national laws that contain a definition of space activities,” some determine the scope of the activities that require authorization broader or narrower than that of the space activities defined in the legislation. For an overview, see Marboe (2015, pp. 139–204); Marboe, Aoki, & Brisibe (2015, pp. 506–509); Marboe & Hafner (2011, pp. 51–57).

  • 21. Note that the Explanatory Report makes reference to the explanations regarding “operation and control” in Gerhard (2009, p. 109), where in particular telemetry, tracking, and command of a satellite are given as examples.

  • 22. Article 3, Paragraph 1, Letter 5 of the Regulation of the Federal Minister for Transport, Innovation and Technology and the Federal Minister of Defense and Sports on the Regulation of Air Traffic—Austrian Aviation Rules (Verordnung der Bundesministerin/des Bundesministers für Verkehr, Innovation und Technologie sowie der Bundesministerin/des Bundesministers für Landesverteidigung und Sport über die Regelung des Luftverkehrs 2014—Luftverkehrsregeln 2014), entered into force on December 11, 2014 (Bundesgesetzblatt II No. 297/2014 of November 28, 2014).

  • 23. Mainly on the basis of Article IX of the Outer Space Treaty, which refers to activities planned by a state’s nationals. For details, see Marchisio (2009).

  • 24. It also fails to take account of the fact that two different terms were used in Article VI and Article IX. See Gerhard (2009, p. 112) and von der Dunk (2015, p. 53).

  • 25. UN General Assembly Resolution 37/92 of 10 December 1982: Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (italics added), hereafter Direct Television Broadcasting Principles.

  • 26. Note that the Explanatory Report refers to this limitation in the scope of the Outer Space Act only with regard to Austrian citizens. However, the German version of the Act states in its Article 1 that the Act is applicable to space activities carried out on Austrian territory, on board vessels or airplanes registered in Austria, or by an operator who is an Austrian citizen or a legal person seated in Austria. The Act therefore seems to apply the limitation not only to natural persons with Austrian citizenship but also to legal persons seated in Austria.

  • 27. Note that some states limit the personal scope of application of their space legislation so that it applies to space activities of nationals outside the state’s territory only if, for example, the activity is carried out in areas that are not subject to the sovereignty of any state or if it is provided for under an international agreement. See Marboe et al. (2015, p. 512).

  • 28. Based on this line of argumentation, the view has been advanced that while there might be several states responsible for a space activity according to Sentence 1, one of them is to be singled out as the “appropriate state” obliged to authorize and supervise the activity under Sentence 2. See von der Dunk (1998, pp. 20–21). At the same time, it has been argued that it does not seem possible to determine one state as being a priori the most appropriate state to undertake authorization and supervision and that states that are responsible for a space activity might not want to leave the authorization and supervision of that activity to another state without prior agreement determining how authorization and supervision should be carried out. See Cheng (1998, pp. 26–28).

  • 29. UN General Assembly Resolution 59/115 of December 10, 2004: Application of the concept of the “launching State” (italics added).

  • 30. In practice, this situation arose with regard to the third Austrian satellite PEGASUS, which was launched in June 2017 and was operated by the University of Applied Sciences Wiener Neustadt in Austria. The satellite formed part of the international QB50 project, which was coordinated by the Belgian von Karman Institute for Fluid Dynamics. See https://cubesat.fhwn.ac.at/pegasus/. Austria and Belgium both considered the satellite mission as falling within the scope of their respective national space legislation. Therefore, the two countries agreed to both carry out an authorization process for the small satellite activity in accordance with their national law. In order to avoid complications during the mission, the countries concluded an agreement regarding the supervision and control of the activity before the launch of the satellite.

  • 31. Note that the costs for the review by experts must be borne by the operator (see Article 7, Austrian Outer Space Regulation).

  • 32. The Explanatory Report also specifies that the General Administrative Procedure Act of 1991 is applicable to the authorization procedure, which includes the possibility to issue conditions and charges as well as the time limit of 6 months for the decision. The specific mention of the time limit and possible conditions and charges in the Outer Space Act serves clarification and transparency, especially for potential non-Austrian applicants.

  • 33. Principles X and XI of UN General Assembly Resolution 41/65 of December 3, 1986: Principles Relating to Remote Sensing of the Earth from Outer Space, hereafter Remote Sensing Principles. For a detailed analysis of the Remote Sensing Principles, see Gabrynowicz, Harris, Mantl, Reynders, Smith, & Soucek (2015).

  • 34. The second sentence of Article 5 states “Especially measures limiting debris released during normal operations have to be taken”. This particular focus on the limitation of debris released during normal operations can be explained from the drafting history of this provision. There was concern among the project leaders of the two first Austrian satellites BRITE-Austria/TUGSAT-1 and UniBRITE that they would not be able to fulfill international space debris mitigation guidelines since the satellites were not equipped with a propulsion system and could therefore not conduct collision avoidance maneuvers, nor could they be removed from orbit at the end of mission. At the same time, an orbit at an altitude of 800 km was chosen for the satellites, which does not allow them to re-enter the Earth’s atmosphere within 25 years after the end of mission (see TU Graz, “Weltraum-Premiere für Österreich: Der rot-weiß-rote Satellit TUGSAT-1 startete ins All,” February 25, 2013, http://www.tugsat.tugraz.at/PRinfo/texte/pressetext-der-tu-graz-zum-start-des-tugsat-1 and http://www.tugsat.tugraz.at/). Therefore, a second sentence was added to Article 5 to emphasize that especially debris released during normal operations should be limited (Marboe, 2012b, pp. 35–36). Note also that the German version of the Outer Space Act speaks of Missionsrückstände in the second sentence of Article 5. This might be somewhat misleading in that the technical German translation of space debris is the very similar word Raumfahrtrückstände. However, the legislation generally uses the word Weltraummüll for “space debris”. The use of both Weltraummüll and Missionsrückstände in the Act, the Regulation, and the Explanatory Report, as well as the different translations of these terms in the English versions of the three documents, might lead to confusion.

  • 35. UN Committee on the Peaceful Uses of Outer Space, Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, Report of the Committee on the Peaceful Uses of Outer Space, Fiftieth Session, June 6–15, 2007, General Assembly, Official Records, Sixty-second Session, Supplement No. 20 (A/62/20), Annex, 2007. For a detailed analysis, see Stubbe, Kopal, & Schrogl (2015).

  • 36. Principle 3, UN General Assembly Resolution 47/68 of December 14, 1992: Principles Relevant to the Use of Nuclear Power Sources in Outer Space.

  • 37. The question of liability is dealt with in detail in the section “Liability”. <<Production: Please provide internal link to section “Liability”>>

  • 38. For this purpose, a publicly available application form or information document could be issued by the responsible ministry.

  • 39. Other steps to prevent harmful contamination of outer space and the environment could, for instance, include planetary protection measures to avoid biological contamination in space exploration. See for instance the Committee on Space Research (COSPAR) Planetary Protection Policy.

  • 40. Note, however, that a wrongful act may also involve the causation of damage and may require reparation in the form of restitution or compensation. See Articles 34–36, International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Report of the International Law Commission on the work of its Fifty-third Session, April 23 to June 1 and July 2 to August 10, 2001, General Assembly, Official Records, Fifty-sixth Session, Supplement No.10 (A/56/10), Paragraph 77, 2001.

  • 41. The term “space object” includes component parts of a space object as well as its launch vehicle and parts thereof. See Article I(d) of the Liability Convention; Article 1(b) of the Registration Convention.

  • 42. Interpretations include, for instance, to license a launch as well as to finance a launch.

  • 43. In particular, most states have not explicitly included private launch procurement and launches from private facilities in their national space legislation.

  • 44. As evidence, the operator is required to submit, inter alia, a proof of his or her qualifications and financial capacity as well as a concept, financing plan, and the technical details of the space activity (Article 2, Paragraph 1, Austrian Outer Space Regulation).

  • 45. In this regard, the operator must demonstrate compliance with state-of-the-art techniques and methods of construction and operation and must submit the results of the tests conducted to verify the safety of the space object (Article 2, Paragraph 2, Austrian Outer Space Regulation).

  • 46. As evidence, the operator must submit information on the payload of the space object (Article 2, Paragraph 3, Austrian Outer Space Regulation).

  • 47. As proof, the operator must submit a report on the measures adopted for the mitigation of space debris according to the state of the art and in consideration of the internationally accepted guidelines, in particular for the avoidance of space debris released during normal operations, for the prevention of in-orbit breakups and collisions, and for the removal of the space object from Earth orbit at the end of mission (Article 2, Paragraph 4, Austrian Outer Space Regulation).

  • 48. As evidence that the space object does not contain dangerous substances or substances harmful to health, which could cause harmful contamination of outer space or adverse changes in the environment, appropriate documents must be submitted by the operator (Article 2, Paragraph 5, Austrian Outer Space Regulation).

  • 49. Note that in the English translation of the Outer Space Act the operator is defined as “a natural or juridical person that carries out or undertakes to carry out space activities”. However, in the German version of the Act, the term durchführen lassenis used, which could verbally be translated as “to have [something] carried out”. Durchführen lassen is also the wording used in the official German translation of the term “procure” in the Liability Convention. The translation of durchführen lassen as “procure” is therefore chosen here.

  • 50. Note that, regarding the liability of the operator under Austrian law, the General Civil Code as well as pertinent provisions of other federal laws are applicable. In addition, the principles on liability for hazardous activities developed by jurisprudence have to be taken into account.

  • 51. Note that UN General Assembly Resolution 1721 B (XVI) of December 20, 1961 on International cooperation in the peaceful uses of outer space calls upon states that launch space objects to furnish information to UNCOPUOS for the registration of launchings. It serves as basis for the registration of space objects by states that have not ratified the Registration Convention.

  • 52. UN Office for Outer Space Affairs, Index of Notifications by Member States and Organizations on the Establishment of National Registries of Objects Launched into Outer Space.

  • 53. Recommendation 3, UN General Assembly Resolution 62/101 of December 17, 2007: Recommendations on enhancing the practice of States and international intergovernmental organizations in registering space objects, hereafter Registration Practice Resolution; see also Kerrest & Smith, 2009, pp. 137–138; Schmidt-Tedd, Hedman, & Hurtz, 2015, pp. 447–450).

  • 54. UN Committee on the Peaceful Uses of Outer Space, Information furnished in conformity with the Convention on Registration of Objects Launched into Outer Space, Note verbale dated January 30, 2017 from the Permanent Mission of Austria to the United Nations (Vienna) addressed to the Secretary-General, ST/SG/SER.E/INF/37, February 22, 2017. The note also contains references to the relevant parts of the Austrian space legislation as well as a link to the website of the Austrian Ministry for Transport, Innovation and Technology, where information regarding the space objects registered in the Austrian national registry is made available for public use.

  • 55. In practice, Austria concluded such an agreement with Belgium regarding the registration of the third Austrian satellite PEGASUS, which formed part of the EU-funded QB50 project coordinated by the Belgian von Karman Institute for Fluid Dynamics.

  • 56. The Register consists of two series of registration information documents: series A/AC.105/INF/for registration on the basis of UN General Assembly Resolution 1721 B (XVI) of December 20, 1961, and series ST/SG/SER.E/for registration on the basis of the Registration Convention. They are made publicly available in all official languages of the UN. See UN Office for Outer Space Affairs, United Nations Register of Objects Launched into Outer Space

  • 57. UN Office for Outer Space Affairs, Online Index of Objects Launched into Outer Space.

  • 58. See the Registration Information Submission Form, which in Part A (Information provided in conformity with the Registration Convention) requires the date of de-orbiting, decay, and re-entry of a space object (optionally also hours, minutes, and seconds UTC), and specifies in Section B of the Annex (Definition of terms) that, besides the date of the space object’s decay, re-entry, and de-orbit, this may also include the date of recovery or landing. UN Office for Outer Space Affairs, Registration Information Submission Form (as of January 1, 2010). .

  • 59. UN Office for Outer Space Affairs, Registration Information Submission Form (as of January 1, 2010). See also Schmidt-Tedd et al. (2013, pp. 302–303) and Schmidt-Tedd et al. (2015, pp. 457–459).

  • 60. The registration of space objects with the Secretary-General can only be undertaken by the government of a state of registry via its permanent missions to the United Nations. See [http://www.unoosa.org/oosa/spaceobjectregister/resources/index.html].

  • 61. UN Committee on the Peaceful Uses of Outer Space, Information furnished in conformity with the Convention on Registration of Objects Launched into Outer Space, Note verbale dated May 13, 2013 from the Permanent Mission of Austria to the United Nations (Vienna) addressed to the Secretary-General, ST/SG/SER.E/676, May 17, 2013; UN Committee on the Peaceful Uses of Outer Space, Information furnished in conformity with the Convention on Registration of Objects Launched into Outer Space, Note verbale dated September 13, 2017 from the Permanent Mission of Austria to the United Nations (Vienna) addressed to the Secretary-General, ST/SG/SER.E/817, September 14, 2017.

  • 62. The ITU frequency allocation number has, it seems, not been transmitted to the UN with regard to the space objects that have so far been registered by Austria. See UN Committee on the Peaceful Uses of Outer Space, Information furnished in conformity with the Convention on Registration of Objects Launched into Outer Space, Note verbale dated May 13, 2013 from the Permanent Mission of Austria to the United Nations (Vienna) addressed to the Secretary-General, ST/SG/SER.E/676, May 17, 2013; UN Committee on the Peaceful Uses of Outer Space, Information furnished in conformity with the Convention on Registration of Objects Launched into Outer Space, Note verbale dated September 13, 2017 from the Permanent Mission of Austria to the United Nations (Vienna) addressed to the Secretary-General, ST/SG/SER.E/817, September 14, 2017.

  • 63. See Explanatory Report, As to §9, Paragraph 2, which states that, since the UN space treaties do not regulate a change of operator, the principle “once a launching State, always a launching State” applies, and registration cannot be withdrawn. However, the Report also specifies that an additional entry into the UN registry is possible and that the respective states can conclude agreements to clarify pertinent legal questions.