ISPLLONDON INSTITUTE OF SPACE POLICY AND LAW
SPACE POLICY AND REGULATION IN THE UK AND EUROPE
Presentation by Professor Sa’id Mosteshar
Keio University Symposium
Tokyo, 6 March 2013

1.

INTRODUCTION
In this presentation I shall give an account of the development of space regulation andpolicy in the United Kingdom, as well as the current European position and someconsiderations for the future. In addition, I will look at the interaction of the European
Union policy with the European Space Agency (ESA).
Although many European countries have been active in space for some years, theirfocus on policy is relatively recent. The United Kingdom falls within that pattern in termsof policy, although UK space laws have been in place since 1986. European laws arealso of fairly recent origin, and some are not yet fully formulated.

2.

SPACE POLICY IN THE UNITED KINGDOM PRIOR TO 2010
The UK Space Agency was created on 1 April 2010, and became a fully executive
agency a year later, on 1 April 2011. Prior to its formation some government
departments and non-departmental public bodies conducted their own space activities,
pursuing specific interests and policies.
There were ten such organisations, including the Department for Business, Innovationand Skills (BIS), the Meteorological Office and the Ministry of Defence (MoD), to the
Department for Children, Schools and Families. The British National Space Centre(BNSC), formed in 1985, coordinated the space activities of these ten entities, but had
no independent budget and did not manage its partners' activities. It played an advisoryrole through its Policy Unit, which communicated to the Government advice emanatingfrom its Space Advisory Council and reviewed by a number of committees.
The BNSC was the point of contact between the UK and ESA, as well as the European
Commission and space agencies of other countries. It channelled the UK's contribution
to ESA, investing in ESA programmes according to the budgets and priorities of thebodies it represented.

3.

THE UK SPACE AGENCY
The UK Space Agency has from 2010 performed the international functions of the
BNSC, and has exercised the powers granted under the Outer Space Act 1986. These
are discussed later, in Section 4.

CHARLES CLORE HOUSE 17 RUSSELL SQUARE LONDON WC1B 5DR ENGLAND+44 (0)207 402 2010 WWW.SPACE-INSTITUTE.ORG
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ASSOCIATED WITH THE INSTITUTE OF ADVANCED LEGAL STUDIESUNIVERSITY OF LONDONA major change brought about by the formation of the UKSA was the centralisation of
the space budget within an independent agency empowered to pursue the national
interest in space, rather than the necessarily narrower interests of each government
department and other bodies. The consequence of this change for policy has been that
the Agency can look at a national policy framework, rather than that of individual
departments.
At the time of UKSA's formation the Space Leadership Council was also appointed, toadvise the Agency on policy and strategy priorities. The SLC comprises senior
representatives from across industry, the research community and government. The
SLC is not an executive body, but is advisory.
The UKSA Steering Board was set up subsequently to advise the Minister and the UKSA
Chief Executive on the strategies to be adopted by the UK Space Agency. It also
advises on the targets to be set for quality of service and financial performance, and the
Agency’s performance, operation and development, including its management of risk.
The Steering Board is not an executive body, but is advisory.
4.

THE REGULATORY FRAMEWORKThe Outer Space Act 1986 (OSA) provides the legal and regulatory framework for space
activities carried out by organisations established in the UK and by UK nationals,1
wherever conducted.2 Jurisdiction under the OSA is, therefore, in personam, rather thanterritorial or subject-matter jurisdiction. The Act has been extended to Crown
Dependencies and British Overseas Territories.3
All space activities4 carried out by individuals or organisations established in the UK or
its Crown Dependencies and Overseas Territories must be licensed5 under the OSA.

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OSA, Sec. 2 provides:(1) This Act applies to United Kingdom nationals, Scottish firms, and bodies incorporated under the law ofany part of the United Kingdom.
(2) For this purpose "United Kingdom national" means an individual who is(a) a British citizen, a British Dependent Territories citizen, a British National (Overseas), or a British
Overseas citizen,(b) a person who under the British Nationality Act 1981 is a British subject, or(c) a British protected person within the meaning of that Act.
OSA, Sec. 1(a).
OSA, Sec. 15(6); Outer Space Act 1986 (Guernsey) Order 1990 S.I. 1990/248, Art. 2; Outer Space Act 1986
(Isle of Man) Order 1990 S.I. 1990/596, Art. 2; Outer Space Act 1986 (Jersey) Order 1990 S.I. 1990/597, Art.
2; Outer Space Act 1986 (Gibraltar) Order 1996 S.I. 1996/1916, Arts. 1, 3, Sch; Outer Space Act 1986
(Cayman Islands) Order 1998 Statutory instruments 1998 2563 Applicants from one of the UK’s Overseas
Territories to which the Act has been extended (Cayman Islands, Gibraltar, Bermuda) will need to apply totheir own Governor’s office for an OSA licence. A list of Crown Dependencies and Overseas Territories:
http://www.fco.gov.uk/en/publications-and-documents/treaties/uk-overseas-territories/list-crowndependencies-overseas
OSA, Sec. 1 provides:
This Act applies to the following activities whether carried on in the United Kingdom or elsewhere(a) launching or procuring the launch of a space object;(b) operating a space object;(c) any activity in outer space.
“Procuring” is not defined. However, examples of licences under the OSA define “Licensed Activity” as“procuring from a launch service provider a service comprising the launch and deployment into … orbit of theSatellite … and operation of the Satellite.”See http://www.bnsc.gov.uk/assets/channels/industry/OSA2008Example.pdf
OSA, Secs. 3(1) and 4. No licence is required by employees or agents, or in case of activities whereby the
UK’s international obligations are discharged by arrangements with another country or otherwise; OSA, Sec.
3(2), (3).
SPACE POLICY AND REGULATION: UK & EU
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6 MARCH 2013

The OSA confers licensing6 and other powers on the Secretary of State for Business,
Innovation and Skills. The Secretary exercises these powers through UKSA. The OSA
seeks to ensure compliance with the UK’s obligations under international treaties andprinciples covering the use of outer space, including liability for damage caused by
space objects, the registration of objects launched into outer space and the principles forremote sensing of the Earth. The OSA also empowers the Secretary of State to ensurethat operators comply with the terms of their licence, that unlicensed activities are
terminated, and that there is appropriate disposal of space objects.7
All persons to whom the OSA applies (UK nationals or those established in the UK)
whether licensed or not, must indemnify the UK Government against any claims fordamage or loss arising out of licensable activities.8 This is a mandatory statutory
obligation, on which no financial limit is set.9
At the time of its enactment, this obligation was consistent with that under US legislation.
The US soon thereafter amended its laws10 to put a limit on this obligation11. The UK isconsidering changes to its indemnity obligations, but has yet to do so. Whether such
limitation would constitute an illegal subsidy under EU competition laws remains
debatable. However, it is worth noting that the European Commission has notchallenged the 2008 French law12 limiting operators' liability. This may indicate that theEuropean Commission would accept limited liability and any implied subsidy.
5.

SPACE POLICY OF THE UNITED KINGDOMThe policy-making structure of the UK Space Agency engages a broad range of spacesector participants in order to permit the development of vigorous policies. Prior to theformation of the Agency there was no single entity and forum for debating or evolving atruly national policy. Instead, the UK exercised its policy choices within the framework of
ESA, which accounted for virtually the entire UK space budget.
The formation of UKSA substantially arose from the Report prepared by the Innovation
and Growth Team in 2009.13 The Report of the IGT, known as the Innovation and
Growth Strategy (IGS), set out a number of Recommendations, among them theformulation of a National Space Policy. Another of the Recommendations of the IGT was
the formation of an independent space agency.
The IGT’s remit included the proposal of a space policy to be pursued by the UK in thefollowing 20 years. A team within the Cabinet Office was assigned the task ofinvestigating and recommending the proposed policy, but its report has been postponed
for further review.14

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OSA, Sec. 3(1).
OSA, Sec. 8
OSA, Sec. 10
OSA, Sec. 10(1) provides:
A person to whom this Act applies shall indemnify Her Majesty's government in the United Kingdom
against any claims brought against the government in respect of damage or loss arising out of activities
carried on by him to which this Act applies. [Emphasis added]
See 49 U.S.C. 70112 and 70113
Insurance is required up to a specified limit, after which the Government will meet the obligation.
Article 15 of the law 2008-518 of 3 June 2008 relative to space operations
Space Innovation and Growth Strategy, see UKSA site http://www.bis.gov.uk/ukspaceagency.
The UKSA Website will post updates on these matters in future.

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Although no national Space Policy has yet been articulated or agreed in the UK, there
are certain driving elements that are inherent in the implementation of the IGS
Recommendations. Broadly, current UK policy seeks to:

6.

1.

Encourage the economic growth of the space sector and its contribution to thenational economy, as well as its share of the international market;

2.

Maintain and advance the expertise and leadership role it plays in particulartechnologies and services; and3.

Increase employment in high technology industries.

POLICY CONSIDERATIONSIn relation to space, a coherent policy needs to encompass many considerations. These
include scientific, technical, economic and social factors. Both civilian and military
security considerations must be taken into account. This is not only because each has
an impact on the other, but also relates to the dual-use of space assets and capabilities,
introducing additional complexity in arriving at a national policy.
Because the major portion of the UK space budget consists of its contribution to ESA,
much of the focus in advancing UK space policy is on ESA projects supported by the
UK.

7.

ROLE OF ESA IN UK SPACE POLICY
UK contributions to ESA accounts for about 80% of the UK space budget. It is, therefore,
not surprising that ESA has a strong influence on the UK space policy. ESA’s Industrial
Policy Committee, which decides the projects to be undertaken by ESA, also has an
impact on ESA policies.
ESA’s direct impact on the UK is also demonstrated by the juste retoure system
operated by ESA, securing expenditure in the UK in proportion to the contribution madeby the UK. At the last ESA Ministerial, in November 2012, the UK increased its
contributions by £60m a year over the next five years, resulting in ESA deciding to baseits satellite communication headquarters at ESA Harwell in the UK.
ESA’s programmes are limited to the extent that Members provide funding for them.
The UK can also influence ESA policy to some extent, in relation to the ESA optional
programmes to which it contributes. ESA has two types of programmes: one type ismandatory, and the other is optional, including such programmes as telecommunication,navigation and Space Situational Awareness (SSA). An example is the Manned Space
Programme, to which the UK does not contribute.

8.

ESA AND THE EUROPEAN UNION
In order to fulfil the EU’s objectives of independence in such areas as global positioning
services, (currently provided by GPS), and monitoring and enforcement of climatechange measures, several programmes have been developed. Among them are GMES
and Galileo, both of which highlight the fact that there is a need for clear European policy
direction in space. In addition, there are other areas in which a European Policy may bedesirable. For example, although the individual Member States have ratified the Outer
Space Treaties, the EU may need to address ratification in its own right.

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SPACE POLICY AND REGULATION: UK & EU
KEIO UNIVERSITY SYMPOSIUM
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At a meeting with ISPL and other space specialists in March 2012, the Space Unit of theEuropean Union sought to identify areas of interest that could benefit from a focus on
European policies, rather than on disparate national policies. One of the areas thatemerged to be of particular interest to the Commission is the promotion of gathering,processing and dissemination of space-derived data.
It must be noted that the implementation and formulation of any EU space policy mustmeet the limitations contained in the Lisbon Treaty15. This constrains the Commission
from harmonization of Member State space policies and activities. Harmonization would
result from an EU Directive requiring Member States to legislate a set of laws, with some
identical provisions, in a particular area. While this constraint on harmonization may
seem to limit EU action, it is worth noting that there is no such bar on coordination, underwhich Member States may work together to implement their laws toward a common
objective.
The significance of this in terms of space policy is that the European Commission canfacilitate and encourage coordination of policies and laws among Member States. The
European Commission can also rely on its competence in industrial policy to create asingle market in space services and systems.
At this time, the space policy of the EU is not certain in the form and direction it will take.
Space policy will emerge from the EU Space Unit, within the Enterprise and Industry
Directorate. What is clear is that it will seek to achieve certain ends, namely to have
independent space capability that is secure and ensures future European security; toadvance science; and to provide reliable climate information to equip Europe to meet thechallenges of climate change.
On 15 November 2012, the ESA Council of Ministers adopted a Draft Political
Declaration to effectively work with the European Commission in evolving a coordinatedapproach to space policy to best serve Europe. In its declaration ESA commits "to play
our role in ensuring the coherence and coordination between the respective processes
on both the ESA and EU sides". This is a step toward the desirable position that
research and development agencies are involved in the formulation of space policy at alllevels.
9.

CONCLUSION
It is imperative that space policies and the legal framework implementing them are
adopted with the recognition that space environment and activities are international innature, and that they take account of policies and laws, as well as activities undertaken,
in other States.
This does not necessarily mean that everyone should have identical policies and laws,
but that they should be coordinated, and should take account of what is occurring
elsewhere.
To facilitate this approach, policy makers and legislators should conduct comparative
studies and research, examine the impact of proposed alternative policies, and formulate
laws that could give effect to particular policies.
It is our collective mission to assist in the creation of a sustainable and coherent set ofpolicies that bring the benefits of space to all.

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Treaty on the Functioning of the EU, TFEU, Article 189.

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