Space law is often thought to be a discipline for dreamers and lawyers whose heads are full of stars and comets and who are sometimes far from reality. This may have been true in the beginning of the space era but, with the advances of space technology and the development of commercial space activities, lawyers are very rapidly being faced with more and more practical issues. In the past, lawyers could follow these developments and study space law as a complement to their daily activities. This is not true anymore: young lawyers have to be trained adequately in order to be able to adapt to the growing needs of space activities, and to foresee the legal challenges of the future. The European Centre for Space Law has developed a specific training programme on space law, which has become far more successful than its founders could have expected.
As happens with many human activities, space activities have provoked the gradual emergence of a body of legal rules designed to govern the relations of those involved in these activities. At the beginning of the space age, space law was essentially part of public international law since only individual states were performing space activities and, at that time, the activities were exploratory in nature.
The main legal principles of space law were elaborated within the framework of the United Nations, and more specifically its Committee on the Peaceful Uses of Outer Space (UNCOPUOS). The committee adopted a series of fundamental treaties that still constitute the core of space law:
In recent years, with the profound changes that have occurred in the international environment and the entry of new members (mostly developing countries) into the COPUOS, the Committee's adoption of texts has slowed and the legal nature of the texts that have been adopted has changed considerably. No treaties have been adopted after those mentioned above, but a series of principles was agreed upon and embodied in United Nations Resolutions, with therefore less legal constraint. The following have been adopted:
The traditional view of space law as part of public international law has also changed because of the weakened role of the United Nations as well as because of pressure from the new type of operator entering the space arena, one with different views on how to use space. At the beginning of the 1980s, there was a strong move toward the commercialisation of space activities, especially those being performed by private operators. Telecommunications already had a commercial component but state involvement was also very strong. The greatest change occurred in the field of launch services where private operators wanted to take part in the launch of space objects. The lawyers' creativity was then welcomed: rules governing the activities of private firms in this field had to be drafted, incorporating all the basic principles of space law while also paying particular attention to liability and insurance issues.
A range of activities that are more or less closely related to space operations and space business has also emerged. Those activities include drafting industrial contracts, processing of remote-sensing data, performance of telecommunications services, and financing. Because of the specificity of space activities from the administrative, financial, legal and practical points of view, the traditional fields of law governing those areas have faced new difficulties and a new environment. Once again, lawyers have had to adapt the rules to the changing needs of space activities. Such adaptations, together with creative thinking, will be needed even more in the future as the field of telecommunications evolves, the International Space Station allows humans to live in space for longer periods, and aerospace planes start carrying passengers through space as well as air space.
In the mid-1980s, there was a growing need for European reflection on space law issues in order to stimulate thinking and gather ideas, and to contribute to the building of a European capability to deal with these issues, in particular in view of the ever-increasing cooperation on large projects such as the International Space Station. A number of lawyers and professors active in the field, led by G. Lafferranderie, ESA's Legal Advisor, decided to set up the European Centre for Space Law (ECSL). It was founded in 1989. ECSL is operated under the auspices of and with the support of ESA, and aims mainly at promoting the knowledge of and interest in space law in Europe, coordinating European efforts in the field, stimulating exchange among interested parties, and playing a leading role in research that contributes to the development of regulations or norms at the European level. ECSL currently has 170 members and a mailing list of about 1500 people, which constitutes the core of the space law community in Europe and around the world.
The Centre's activities have developed exponentially. Although interest in space law already existed in Europe, the creation of ECSL has led to an unprecedented development of activities and thinking in this field. The Centre has gradually helped its members to gather nationally around National Points of Contact (NPOCs), intermediaries between ECSL and its members. Together with the NPOCs, ECSL has organised a number of workshops and conferences on space law topics and has published proceedings of most of these events. NPOCs are also very active, often with the support of ECSL, in organising their own events and stimulating interest in their own countries. ECSL also maintains, together with ESA Legal Affairs, a database called ESALEX which contains ESA legal documents as well as bibliographic references and legal documents relating to space law from other sources.
The Centre has undertaken two research projects, both on its own and with the help of experts. The first study dealt with legal protection of remote-sensing data and led to an ESA proposal to the European Commission to amend parts of a directive on databases in order to take into account specific needs related to remote-sensing activities. The second project, which is currently in its final phase, addresses intellectual property rights relating to space activities. The World Intellectual Property Organisation (WIPO) has shown strong interest in this study and efforts will be made to achieve, with WIPO, harmonisation of laws in this field on the basis of the ECSL study and suggestions.
Since many of the ECSL members are practitioners, either from law firms, national space agencies or industry, ECSL has set up a Practitioners' Forum, designed to meet the members' specific needs. The Practitioners' Forum is a yearly conference, attended by those active in the practice of space business and space law. Presentations on recent developments in the field are given, and participants are able to exchange views, in an informal way, on legal problems they encounter in their practice. ECSL also regularly publishes a newsletter, ECSL News, informing its members of past, current and future activities and focusing, in almost every issue, on a specific space-law problem. Many articles on ECSL activities are also published in other space law journals, thanks to the active cooperation between ECSL and editors of space law publications in Europe and around the world.
ECSL's major success, however, is undoubtedly in the field of teaching. The community of space law teachers and professors that ECSL has assembled is exceptional in Europe, as well as around the world (see coloured box). Also, because the Centre is a repository for information, students have been very interested in it. Their motivation has often been determined or stimulated by their contacts with the Centre. ECSL has published a booklet entitled Space Law Teaching in Europe, which provides information on the universities in Europe where space law is taught either as a free-standing course or as part of a more general course, and on professors giving such courses. A yearly Moot Court Competition is also organised in cooperation with the International Institute of Space Law, where teams of students from European universities defend a case before the International Court of Justice. The Moot Court experience is very enriching for students and professors; it allows them to move from abstract course work to the exercise of solving and defending a practical case and addressing the International Court of Justice.
The Centre's major effort in the field of teaching is geared to the ECSL Summer Course on Space Law and Policy. This course is designed to be an introduction to legal and political issues arising out of space exploration and space applications. It is organised with the support of the European Communities' Erasmus Programme, a host university and ECSL. It has also received the support of several other sponsors: the British National Space Council, Arianespace, Matra Marconi Space, Spot Image, the Centre National d'Etudes Spatiales, Gras-Savoye, SENER, CASA, INTA, the Canadian Space Agency and Martinus Nijhoff Publishers. The two-week course has been held for the past three years, at a different university each year: in Messina, Italy in 1992, Toulouse, France in 1993 and Granada, Spain in 1994. The 1995 Summer Course will take place in Aberdeen, Scotland. About 35 professors will be involved and about 50 students - from 25 universities in Austria, Belgium, Canada, Finland, France, Germany, Italy, Netherlands, Portugal, Spain, and the United Kingdom - are expected to attend.
In those three years, ECSL has gained much experience, thanks to the quality of the teaching staff assembled for the course. The course is constantly being updated to take into account the most recent developments in space activities and the related legal issues.
ECSL has published two volumes of materials to be used by students as support material for the course. It will also publish the proceedings of the Summer Course held in Granada last summer, which will become a complement to the basic materials.
Course content
Before the course begins, the students are given a demonstration of how to use the ESALEX database and the IRS databases relating to law. They are encouraged to use the systems throughout the session.
The course itself is composed of two parts. In the first part, the basic principles of space law and the main treaties are introduced. The students acquire a solid knowledge of the core of space law, which contains the rules governing the use of the space environment. The institutional organisation of space activities is presented, with particular emphasis on ESA. A full day is devoted to ESA with presentations on the history of European space endeavours, a description of ESA and its industrial policy and relations with other organisations such as the EC, Eutelsat and Eumetsat.
In the second part of the course, students become familiar with issues encountered in space applications (e.g. satellite telecommunications, remote sensing and launch services). Specific lectures on liability, insurance, and intellectual property are given. Guest lecturers, who are usually practitioners, often speak to the students. They give the students an idea of the questions they are dealing with in their daily practice. Their presentations are very important as they demonstrate what the theory may be and what the practice is. They also help students to understand the practical side of what they are learning in the course.
To teach the students to manage a practical case, group work was introduced this year. The students were given a practical and somewhat futuristic case dealing with a mission to the Moon, in which many surprises were encountered creating a legal nightmare. Students were split into groups, each group representing a state or an organisation, and constituting a delegation that would participate in an international conference convened to agree on a settlement of all legal issues arising from the mission to the Moon. Under the direction of tutors and with the help of the professors, the students prepared their arguments and exchanged correspondence among delegations in preparation for the conference. The conference itself lasted two days, at the end of which concessions and compromises led to a reasonable settlement of the disputes. The minutes of the conference were taken and a final act was agreed upon and signed by the heads of the delegations.
Many benefits are gained from such role playing, and the exercise has proven to be a tremendous success. Students are very often not prepared enough by universities to face practical problems. The teaching in Europe is mostly theoretical and practical cases are often dealt with on an individual basis. Such an international conference proved to meet the needs of students, who need to put their theoretical knowledge at stake and enjoy the reality of the exchange of legal arguments in somewhat official surroundings. Thanks to the exceptional chairmanship of Professor Pocar, who is an expert on space law, a UNCOPUOS delegate, and an outstanding teacher, students learned not only about the principles they were arguing about, but about all procedural aspects of such a conference, including formulation of addresses to the Chair and other delegations, protocol, and drafting of legal texts and arguments. Such an exercise was rendered more interesting by the interplay between the various nationalities, legal backgrounds and educations that were involved.
A bright future for the Summer Course
The success of the ECSL Summer Course on Space Law and Policy goes far beyond the expectations of those who launched the idea. A solid programme has now been developed and the new group-work method has undoubtedly passed the 'qualification test'. Still, many improvements have yet to be made, but the foundations are strong and the viability of the course and the interest in it have been recognised by all those active in the field in Europe. A number of practitioners have expressed interest in attending the course and some have even attended sessions. However, it is not designed to provide space law education to practitioners and advanced students, although there is a need for it which is not always met in Europe. Eventually, the idea of setting up a specific session offering advanced courses, in parallel with the basic course, will be considered, but the consolidation of the achievements made in the latter are at present the priority.
The success of such a course is certainly a subject for reflection on the role of ESA in the field of space law. Through its daily activities, ECSL promotes ESA in Europe and around the world, and the success of the Centre's achievements undoubtedly help to consolidate the reputation of the Agency in academic and legal circles. The Summer Course plays an even more important role for ESA: it trains lawyers to be able to deal with the challenges of future space programmes. In the development and implementation of any kind of activity, legal issues that may arise from these activities should not be overlooked. In addition, when deciding upon major space programmes, ESA will have to pay increasing attention in the future to their legal framework and consequences because, not only space-law issues will be at stake, but also issues that will relate to other fields of law such as air law. For instance, besides the legal framework to be established for the Space Station, the resolution of issues relating to future air navigation systems will require important legal work and specific expertise.
With ESA's support, ECSL is making all efforts, especially in the framework of its Summer Course, to develop a training and education tailored to meet those specific needs, and to ensure that the space community will continue to benefit, in the future, from the contribution of young talented lawyers, able to support technological development and think for the future.
For more information on ECSL, its activities and the ECSL Summer Course on Space Law and Policy, contact:
ECSL Secretariat
ESA Headquarters
8-10 rue Mario-Nikis
75738 Paris Cedex
France
Tel: (33) 1.42.73.76.05
Fax: (33) 1.42.73.75.60
ESA Bulletin Nr. 81.