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4 th Luxembourg Workshop on Space and Satellite Communication Law 4 th /5 th June 2015

Cross-Boarder Transfer of Operation (Ownership) of Satellites Solutions in line with the Space Treaties Dr. Bernhard Schmidt-Tedd. 4 th Luxembourg Workshop on Space and Satellite Communication Law 4 th /5 th June 2015. “ Transfer of Ownership ” / Transfer of Operation.

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4 th Luxembourg Workshop on Space and Satellite Communication Law 4 th /5 th June 2015

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  1. Cross-Boarder Transfer of Operation (Ownership) of Satellites Solutions in line with the Space TreatiesDr. Bernhard Schmidt-Tedd 4th Luxembourg Workshop on Space and Satellite Communication Law 4th/5th June 2015

  2. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 “Transfer of Ownership” / Transfer of Operation The term “transfer of ownership”, although often used in the discussion of a transfer of operation from one private operator to another private operator, is inappropriate from an international law perspective. Although the term ‘ownership’ is mentioned in Art. VIII OST, it refers to a private law concept, which is not relevant in the context of the international responsibility of States with regard to space objects, public or private, according to Art. VI OST. Art. VI OST only clarifies that ownership, as established on ground under national jurisdiction, remains unaffected in outer space. Therefore, it is suggested to use the term “cross-boarder transfer of operation” The additional element “cross-boarder” illustrates, that the problems usually addressed in this context only arise where the “transferor” and the “transferee” are of a different nationality. Otherwise, from the international law perspective, nothing changes as the same State remains addressee of the rights and obligations under the Space Treaties. • … • …

  3. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Particularities in Space Law • Space activities are by virtue of Art. VI OST subject to national authorization and continuing supervision; • The use of orbital positions and frequencies requires a State license; • Space assets are regularly subject to export control regulations; • The enforcement of an international interest may affect national security; • Space assets regularly provide essential public services such as weather forecast and broadcasting. Distinguish: space assets (commercial perspective) and space object (defined legal term)

  4. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 What challenges for the cross-border transfer of operation ? • Art. VI, VII and VIII OST address different rights and obligations of States with regard to space activities and objects, which are interrelated in particular: Every article operates with a different criterion: • Art. VI OST: “national activity” and “appropriate State” / international responsibility • Ar. VII OST: “launching State / space object” / liability • Art. VIII OST: “State of registry” / jurisdiction and control • … • …

  5. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Key elements of Art. VI – VIII OST • States bear international responsibility for the national activities of its non-governmental entities (Art. VI Outer Space Treaty); • Space activities of non governmental entities are subject to the authorization and continuing supervision of the appropriate State (Art. VI Outer Space Treaty); • A launching State is internationally liable for damages caused by a space object (Art. VII Outer Space Treaty); • The State of registry exercises jurisdiction and control over a space object (Art. VIII Outer Space Treaty). Each State Party is responsible for all its nationals. Space activities are always attributed to a responsible State. No private activities detached from State responsibility.

  6. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Art. VI Outer Space Treaty – International Responsibility States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization. “international responsibility for national activities [...] carried on by [...] non-governmental entities“

  7. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Art. VII Outer Space Treaty – Liability „internationally liable“ Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies. „launches“ „procures the launching“ „from whose territory“ „from whose [...] facility“

  8. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Art. VIII Outer Space Treaty – Registration / Jurisdiction & Control / Ownership A 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 or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return. „registry“ „shall retain jurisdiction and control“

  9. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Definitions • “Appropriate State” (Art. VI sentence 2 OST): the appropriate State is the State responsible for the activity according to Art. VI sentence 1 OST, thus usually the State of nationality of the operator; • “Launching State” (Art. VII OST): the State(s) which launche(s) or procure(s) the launching and the State from whose territory or facility the space object is launched; • “State of registry” (Art. VIII OST): the State on whose national register (to use the wording of REG) is carried. It means a launching State on whose national registry the space object is carried. Reminder: While there can be more than one launching State, there is only one State of registry and usually only one appropriate State. A launching State will always be a launching State and a non-launching State cannot become a launching State, while the appropriate State might change merely by the actions of privates. • … • …

  10. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Jurisdiction and control related to Space Objects In space law registration is the pre-condition for the comprehensive legal position ‘jurisdiction and control’. This position regulates a quasi-sovereignty related to an object in outer space, which means in a sovereign-free area. Registration is an official act and communicated via diplomatic channel to the UN. The term space object has a specific meaning under space law (including component parts as well as its launch vehicle and parts thereof).

  11. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Inter-relationship between Art. VI, VII and VIII OST Art. VI OST “responsibility“ “national activity“ Responsibilityfor national activitiesmightaffect Non-launching States Registration allocatesjurisdictionandcontrolto a launching State Art. VII OST “launchingState“ “liability“ Art. VIII OST “State of registry“ “jurisdiction and control“ Criterion ‘launching State’ is a pre-condition for jurisdiction & control

  12. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Issues in relation to Transfer of Operation: Jurisdiction & Control (Art. VIII OST) • “Jurisdiction”: right to legislate and enforce laws and rules in relation to persons and objects • “Control”: “The ‘control’ competence is more than a technical capability. It is the right of the State of registry ‘to adopt technical rules to achieve the space object mission’ and, if necessary, ‘to direct, to stop, modify and correct the elements of the space object and its mission’.”1 Thus, as Lafferranderie rightly elaborated, “jurisdiction and control” have to be seen as one block; “jurisdiction and control” dealing with different aspects of the legal regulation of space activites and the enforcement of that regulation 1Schmidt-Tedd/Mick, Article VI, in: Hobe/ Schmidt-Tedd/Schrogl (ed.), CoCoSL Vol. I, p. 157, mn. 51 • … • …

  13. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Registration in Space Law: ‘Space Object‘ covers all Items of a specific Launch (components / launch vehicle) Definition Art. 1 b) REG: The term „space object“ includes component parts of a space object as well as its launch vehicle and parts thereof; • Accordingly, the launching State which registered the space object is responsible to exercise jurisdiction and control over all objects launched into outer space by the launch of this space object. • The responsibility of the State of registry to exercise jurisdiction and control • is not limited to objects which are of particular interest for the State of registry, • nor is it limited to functional objects. • Responsibilities to exercise jurisdiction and control are only allocated among States, in case of separate registrations by the launching States concerned, • e.g. separate registration of upper stage (by the State behind the launch service provider) and payload (by the State behind the payload customer).

  14. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 RegPract Resolution (UNGA Resolution 62/101) 2007 The Registration Practice Resolution “[…] • [...] recommends, in order to achieve the most complete registration of a space object, that: [...] • In cases of joint launches of space objects, each space object should be registered separately […]“ Note: In the light of the object and purpose of registration this recommendation shall not apply to each and every break-up part. See the telos of Art. VIII OST / REG: attribution of jurisdiction and control. Registration under Art. VIII OST / REG is not a space traffic management or a Space Situational Awareness tool.

  15. (First) Registration Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Satellite 1 Satellite 2 The registration by a (first registering) launching State covers all objects launched into outer space, such as the upper stage, the fairing, break-up parts, and the payload (satellites).

  16. Registration of attached Payloads / component parts Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 . . Attached to Payload Attached to Fairing Registration of attached payloads ─ All objects attached to the payload are covered by the first registration, as long as they are not registered separately.

  17. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Registration of Upper Stage & Payload (own/foreign) Satellite 1Payload oftheLaunch Service Provider Satellite 2 Payload Customer Launch Service Provider The payload of the launch service provider is covered by the registration of the upper stage (and vice versa). Accordingly, there could be only one registration in relation to both objects. The launch service provider may, however, register separately.

  18. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Registration of Upper Stage & foreign Payloads Satellite 1Payload Customer 1 Satellite 2 Payload-Customer 2 Launch Service Provider In case of a joint launch by a launch service provider of two payloads, procured by two payload customers, there should be, accordingly, three registrations. The State behind the launch service provider (launched) and States behind the payload customers (procured) are launching States.

  19. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Issues in relation to Transfer of Operation: Jurisdiction & Control (Art. VIII OST) / Operational Control Starting Point Satellite Operator A (Op1) SatelliteOperator B (Op2) State X State Y SatelliteOperator A wishestosell a satellitetoSatellite Operator B.

  20. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Issues in relation to Transfer of Operation: Jurisdiction & Control (Art. VIII OST) / Operational Control Op1 Op2 Result State X State Y Civillawsalecontract(s) effectivelyexercisingrights of the State of registry appropriate State (Art. VI) OST) original launching State State of registry Guarantor (Art. VII/VIII OST) bilateralagreement jurisdictionandcontrol

  21. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Jurisdiction & Control as a comprehensive legal positionand delegated rights and obligations Jurisdictionandcontrolascribedto(launching) State X accordingtotheregistration in conformitywith OST / REG • Main parts of the comprehensive legal position ‘jurisdiction and control’ delegated to State Y under a bilateral agreement with State X • Derived rights to apply its laws and regulations to Op2 and to enforce them upon Op2 • Actual control of Op2, the right to stop, direct and modify etc.

  22. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Cross boarder Transfer of Operation: Jurisdiction & Control (Art. VIII OST) / Operational Control • Cross-border transfer of operation to a non-launching State: • thelaunching State which registered the space object= State of registryresponsible to exercise jurisdiction and control (Art. VIII OST) differs from • homeState of the transferee operator = State which bears international responsibilityfor the activities of its non-governmental entities (Art. VI OST). • Registration is confined to launching States (Art. II REG): • the State of registrymaintains responsibility for the exercise of jurisdiction and control for the entire time that the object is in orbit; • the State of registry may assign resulting rights and duties to the State responsible for the transferee operatorthrough a contractual agreement.

  23. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Transfer of Operation / Involvement of the States Responsible: National Law - The French Space Operation Act (SOA) • The cross-border transfer of operation should not be executed without the involvement of the responsible States (Art. VI and VIII OST). Both, the home State of the transferor operator and the home State of the transferee operator shall be involved in the transfer. • The French Space Operation Act (SOA) of 3 June 2008 (Loi No. 2008-518 du 3 juin 2008 relative aux operationsspatiales) faces this situation by demanding • an authorization for the transfer of control of the space object having been authorized under the French Space Operation Act to a third party and • for the invers case, where a French operator intends to control a space object for which the launch or control has not been authorized under the French Act (Art. 3 of this Act).

  24. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Model Contract Clause on the Transfer of Operation:Jurisdiction & Control / Operational Control State X, launching State and State of Registry for the space object as defined in Annex A agrees to the transfer of operation from the present operator Op1 to the new operator Op2 under the jurisdiction of State Y. State Y recognizes the ‘jurisdiction and control’ of State X as State of Registry and agrees hereby to accept and execute the rights and obligations resulting of this position with regard to the space activities and operations of Op2 related to the space object as defined in Annex A on behalf of State X. State Y further agreesto keep State X harmless for any claims resulting of the before mentioned activities of Op2 and to indemnify State X for any claim resulting of the responsibility as launching State. A further transfer of operation to a legal entity not under the jurisdiction of State Y is only permitted with prior consent of State X.

  25. Dr. Bernhard Schmidt-Tedd Luxembourg June 2015 Literature Gerhard, Article VI, in: Hobe/Schmidt-Tedd/Schrogl (ed.), CoCoSL Vol. I, pp. 106ff. Kerrest/Smith, Article VII, in: Hobe/Schmidt-Tedd/Schrogl (ed.), CoCoSL Vol. I, pp. 126ff. Schmidt-Tedd/Mick, Article VI, in: Hobe/ Schmidt-Tedd/Schrogl (ed.), CoCoSL Vol. I, pp. 146ff. Schmidt-Tedd/Hedman/Hurtz, Registration Practice Resolution, in:Hobe/Schmidt-Tedd/ Schrogl (ed.), CoCoSL Vol. III, pp. 471ff. Hobe / Schmidt-Tedd / Schrogl Cologne Commentary on Space Law, Volume III Carl Heymanns Verlag, Cologne 2015

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