6th Keio University Space law symposium
Tokyo January 2015

Domestic space legislation
The French law on space operations

Armel Kerrest
Institute of Law of International Spaces and Telecommunications
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Introduction
The aims and purposes of domestic legislation• Implement the obligations of authorisation and control ofarticle VI• Share the burden of the risk when private companies areinvolved and may create obligations to a launching State2

Introduction 2
Drafting a domestic legislation
The extend of the purposes
Organising the national space agency
Authorising and controlling space activities

The necessity to take into consideration the specificities ofevery State

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Introduction 3
Part 1The licensing/authorisation process
Part 2Liability issues

4Part 1

The authorisation process5Part 1 /1
The extend of the obligation to have alicence
Article VI OST: Responsibility for national activities
Article VII and liability Convention : Liability of theLaunching State

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Part 1 /2
Article VI
Activities of “nationals” in outer space .

Article VII
State which launches
State which procures the launchState whose territory is used
State whose facilities are uses (whether on its
territory or elsewhere )7Part 1 /3
Definition of “nationals”.
French solution

Any person who has French nationality and any juridical entity
whose head office is registered in France
US extension of the definition(1) “citizen of the United States” means—(A) an individual who is a citizen of the United States;(B) an entity organized or existing under the laws of the United States or aState; or(C) an entity organized or existing under the laws of a foreign country if thecontrolling interest (as defined by the Secretary of Transportation) is held by anindividual or entity described in subclause (A) or (B) of this clause.

8Part 1 /4
The procedure in the French Law
Authorisation and licence .
Authorisation given to every operation
Licence as a qualification of the operator

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Part 1 /5
Who is going to control ?
The minister
The important role of CNES as an adviser
What kind of control ?
AdministrativeFinancial
Technical10

Part 1 /6
“Continuous supervision” (OST VI)
Control of the implementation of the obligations ofthe authorisation
The authorisation may be withdrawn or suspended(article 9) (decree article 15)

In case of false declaration
If the activity would jeopardise the national security orobligations according to international law
If the conditions of the authorisation do not exist any more.

11Part 1 /7
Transfer of control of the space object (article 3)(decree art. 13 and 14)

Authorisation required in case of transfer of control of aspace object authorised under the law
Authorisation required in case of transfer of a space object
which has not been authorised under the law (a foreign
space craft) to a French citizen.

12Part 2

Liability issues13

Part 2
Domestic law and liability for damage
caused by space activities
One major aim of a domestic legislation is to prevent a
potential launching State to bear all the burden of the riskof space activities as it is in the Liability Convention.
Some States including France and the US use also this law
to support their activities in Outer Space, especially thelaunching .

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Part 2/1
General remarks on the liability fordamage caused by a space object / spaceactivities.

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Part 2/1
What will happen in case of accident?
No exclusivity of the liability convention
Possibility to use domestic judge and domesticlaw (forum shopping )16

Part 2/1/2
Advantages and disadvantages of anaction under the liability convention+An unlimited liability either in time or in amountA State which can pay (capacity to pay large amount of indemnificationand time of the occurrence )Absolute liability in case of damage on earth
Join and several liability (possibility to choose the "best Launching State")

A State to State procedure with the risk of political issues
The victim has little or no control on the action
The State of nationality may refuse to support or weakly support its
national.

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Part 2/1/3
Advantages and disadvantages of anaction before a domestic judge+• The victim will be the direct and only beneficiary• The amount of the compensation may be more important (adomestic judge may be more generous )• No or little influence of politics• The liability convention does not apply• Risk to have a limited liability• Risk to ask compensation to an insolvent operator• Difficulty to get exequatur of the domestic judgement
18Part 2/1/4
Conclusion on this introductory issue :The liability convention and the liability of thelaunching State will certainly not be the best way forthe victim to obtain satisfaction . He/she would havebetter using an action before a domestic judge. Theliability convention stays much like a safety net to be
used if the usual action against the operator may fail.

19Part 2/2
Domestic space law and liability
The example of the French Law

Sharing the burden of the risk
Supporting national activities
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Part 2/2/1•Sharing the burden of the risk
Sharing the burden of the risk Sharing the burdenof the risk between the launching State and a
private person for which the State is
responsible/liable
Sharing the burden of the risk between Launching
States may be considered when authorising alaunch including other launching States or incase of transfer of ownership.
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Part 2/2/2•Sharing the burden of the risk
The obligation of insurance or financial capacity.
Canalisation on the operator of the activity (the boltmaker issue)

Validation of waivers of liability among
companies taking part to the activity

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Part 2/2/3
Reimbursement of the cost ofindemnification
If a launching State has to pay because of a private
activity it usually asks for reimbursement fromthe operator.

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Part 2/2/4
Supporting national activities
By limiting by a ceiling the amount of thereimbursement to the Launching State
By giving the State’s guarantee over aceiling.

24Part 2/2/5
Supporting national activities
By giving the State’s guarantee over aceiling. (USA and France )This ceiling will apply to every procedure
chosen by the victim.

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Part 2/2/6
US Commercial space launch act• Obligation of insurance or financial capacities• Establishment of a Maximum Probable Loss (MPL)• The State will pay the amount over the ceiling

French Law on space operations• Obligation of insurance or financial capacities• Establishment of a ceiling to 60 M€• The State will pay the amount over the ceiling
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Part 2/2/7
Important practical consequences ofthese provisions .
•The ceiling and guarantee applies not only when
the liability convention is used by the victim.
•But also if the victim decides to act before adomestic judge (even a foreign judge)

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Part 2/2/8
Limitations in the US Commercial
space launch act• Exclusion in case of gross negligence or wilfulmisconduct• Ceiling of the guarantee 1,5 Billion $ (1988)• Limited Duration of the guarantee• Necessity of a decision of the US Congress

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Part 2/2/9
Limitations in the French Law• Not applicable in case of wilful misconduct• Distinction between two phases
The launch phase : guarantee for damage on earth and damage inorbit

The in-orbit phase : guarantee only for damage on earth

29Part 2/2/10
Liability after the operation phase in theFrench Law. (Space debris)During the discussions in the French parliament the situation of theoperator was improved for liability caused by space debris.
After the time of the authorisation, the French government takes overthe liability of the operator
Article 13
Except in the event of deliberate fault, the liability set out in 1 and 2
above shall cease when all obligations set by the authorisation or licence havebeen met, or at the latest one year after the date when these obligations shouldhave been met. The Government replaces the operator in the event of any
damage caused after this date.
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Conclusion
A space legislation must be in accordance of thepolicy of a State.
The problems are not always the same.
States having launching capacities must not only
protect the taxpayer money but also support their space
activities.
The establishment of an efficient ceilingmechanism to the risk of damage to third parties seems aquite efficient way to do it without limiting the rights andinterest of potential victims.
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Armel.Kerrest@univ-brest.fr

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