The French Act Relating to Space Activities was promulgated on June 3, 2008 as a way to preserve France’s best interests in the space activities market.
The Development of the French Space Program
In the aftermath of the Second World War, France considered it necessary to develop a space program. At the time, in the 1950s and 1960s, the so called space program only concerned the development of French rockets with the study of V2 rockets developed by the Nazi regime.
It was thanks to General Charles De Gaulle, who returned to power in 1958, that France acquired ballistic missiles for the nuclear strike force. It was following this impetus that the National Center for Space Studies (CNES) was created in 1962 and that the first French satellite was launched independently in 1965.
Since then, France has continued to cultivate its space program in almost all areas. This concerns launchers with the Ariane rocket, the observation of the Earth for civilian purposes, satellites, military activities in space, but also and above all space exploration. France has also continued to increase its collaborations with the other space powers on the planet and actively participates in the activities and funding of the European Space Agency (ESA).
Having become an essential space power, France has the third largest budget in the world, with 2.4 billion euros allocated to its space program in 2019.
France necessarily had to comply with the requirements of international law on space law, which was mainly developed during the 1960s and 1970s under the aegis of the United Nations.
International Law on Space Activities
Currently, several countries have established their own national laws concerning the regulation of space activities. However, these laws necessarily had to follow the principles established by international law. Space law is framed by five major treaties:
- The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, also called the Outer Space Treaty, of 1967;
- The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, also called the Rescue Agreement, of 1968;
- The Convention on International Liability for Damage Caused by Space Objects, also called the Liability Convention, of 1972;
- The Convention on Registration of Objects Launched into Outer Space, also called the Registration Convention, of 1975;
- The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, also called the Moon Agreement, of 1979.
France signed all these treaties and they all entered into force a few years later, with the exception of the Moon Agreement which the country simply signed. These treaties regularly ratified and entered into force impose their binding force.
The core of international space law is gathered around five treaties which established general principles that are endowed with a certain grandeur and are seeking to promote the interests of humanity. For instance the first article of the Outer Space Treaty states that: “the exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development and shall be the province of all mankind“.
Subsequently, the law governing space activities was developed mainly through bilateral agreements between countries and through agreements between establishments and space agencies.
France had fallen behind. When other countries had already adapted and modernised their national laws – the United States with the Commercial Space Launch Act of 1984 and Russia with a federal law on space activities of 1993 – France still relied on the international treaties of the 1970s. Even Belgium, although a minor player in the space sector, had drafted a new law.
The modernity of these texts is based on the fact that they promote the booming private sector while establishing a control of the compliance of private actors with international law through a system of authorisations.
As a leading space power, France had to adapt to the new rules of the space market and adopt a new law. This is also what the Senate report underlined during parliamentary discussions on the bill. Indeed France did not have a satisfactory legal framework despite its various space activities. However, more and more non-state actors are entering the space market, which was previously reserved for states and state organizations only. It was therefore necessary to adapt the French legal regime to ensure legal certainty and its competitiveness.
The French Act Relating To Space Activities
The bill relating to space operations was presented to the Senate for the first time on April 25, 2007. It was a text drawn up by the Minister for Higher Education and Research, at the request of the President of the Republic.
As a reminder, this law was not intended to define the new French objectives of the conquest of space, but to clarify the rules of the State’s liability.
In France, a distinction is made between “space uses“, which are services provided from space such as telecommunications, location or satellite observation, and “space operations” which concern the methods and devices used to go into space, stay there and then come back to Earth. The 2008 French act only deals with the legal framework of space operations.
In his report of January 15, 2008, Henri Revol, who was in charge of the law, expressed himself on what he called a spatial paradox.
First, he underlined that the space operations law was only governed by a few international treaties (cited above) which still bear the scars of the Cold War. A major flaw that these texts have in common is that they place on States a very heavy responsibility in the event of damage. Hence the Outer Space Treaty of 1967 states in its article 6 that: “State 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“. But above all, it states in its article 7 that: “Each States 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 States party from whose territory or facility an object is launched, is internationally liable for damage to another States party to the Treaty“.
To put it simply, States are financially responsible for all damage suffered by third parties, or States parties to the Treaty, during a space operation, even if it was conducted by a private company and that no fault was made during the launch phase.
But the conditions for engaging the responsibility of a State went even further. Indeed the international treaties had provided that in the event of damage, the responsibility could be divided between several States. Its due to the distinction made between the launching State, the territory in which there were space installations, the State of the nationality of the company which carried out the launch and the State of the nationality of the company which wanted to place its object in space.
An example will make it easier to distinguish. Let’s imagine that an Egyptian company wants to place a satellite into orbit. It may conclude a contract with Russia to launch the satellite using Soyuz rockets. And Russia will be able to carry out the launch from its launch base in Kourou, Guyana, therefore from French territory. In this example, in the event of a damage and according to international treaties, Egypt, Russia and France could therefore be considered responsible.
Likewise, due to competition in the space market, several countries and companies may offer low-cost launches. And since the French space sector is very dynamic, France could be considered responsible for damage if, for example, a French company has decided to launch an object into space from China. And this, even if the launch did not take place from French territory or aboard a French rocket.
Therefore it created a kind of legal insecurity for France, since it could be considered responsible even if it was not directly involved in the activity that led to the damage.
Consequently it appeared more than necessary to pass a new law to improve the liability system.
After a first reading in the Senate, and after having been studied by the National Assembly, the bill was finally submitted on April 10, 2008 to the Senate for a second reading. Once the French act was definitively adopted by the Senate on May 22, 2008, the law relating to space operations was promulgated on June 3rd, 2008.
One of the objectives of this law was to ensure a balance between legal certainty and competitiveness: to protect the French state while giving it the means to remain a strong space leader.
To achieve this objective, the law followed what other States did, such as the United States, and established an authorization system for all space operations likely to engage the responsibility of the French state.
Classically, the first article of the French act defines the terms that will be used by it, such as damage, space operator, space operation, launch phase or even third party to a space operation.
The second article establishes the three categories who will be concerned by the request for an authorization, issued by the administrative authority. Thus, the following must request an authorization before any launch: any operator (regardless of his nationality) who launches from or returns an object to French territory; any French operator carrying out a launch from a foreign territory and any French person, or legal entity having its registered office in France, who wants to launch an object into space.
Then, article 4 defines the conditions for issuing authorizations. The administrative authority must verify the moral, financial and professional guarantees of the applicant. A decree came to specify these conditions.
The French act also provides for the obligations of the license holder. He must therefore be covered by an insurance that can compensate for the extent of the damage (article 6).
Even after the authorization has been issued, verification checks on obligations can be carried out. It is article 7 of the law which designates the agents authorized to carry out this kind of control as well as what they can do during this control. Similarly, the administrative authority has the ability to give instructions or impose measures if they are necessary to ensure the safety of people and goods but also to ensure the protection of public health and the environnement (article 8).
Lastly, with regard to the authorization system, these can be withdrawn or suspended in the event of a breach of obligations or if the operation risks compromising the interests of national defense (article 9).
Furthermore liability towards third parties is explained in articles 13 and 14 of the French act. This is where the most significant change from international treaties takes place. Now it is the operator who is solely responsible for damage caused to third parties as a result of the space operations he conducts. The State is therefore no longer responsible in the event of damage caused by an operator.
On top of that, for all damage caused to the ground and in airspace, there is no need to prove a fault on behalf of the operator, which clearly facilitates the work of the victim in the search for a responsible but above all improves the victim’s chances of being compensated. The victim will only have to provide proof of an operator’s fault when the damage has occurred elsewhere than on the ground and in the airspace.
In addition, if the State has compensated a victim of a damage, it may turn against the operator at the origin of the damage to request reimbursement of the compensation.
Finally, the French Act relating to space activities also established an inter-ministerial commission for data of spatial origin which aims to ensure that the activities of national operators of space data do not infringe the fundamental interests of the country, in particular on national defense, political external and international commitments France.
In summary, the French act of June 3rd, 2008 established an authorization system for any operator wishing to proceed to a launch. It also established better legal certainty for the French State by shifting all of the liability for damage to the operator. The law penalises any breach of obligations by withdrawing or suspending the authorization as well as by a fine of 200,000 euros.