A first look at Austria’s new domestic space law
by Michael Listner
|The Space Act elaborates upon four fundamental areas of space activities.|
Austria also served as host for UN space-related conferences including all three UNISPACE conferences, and two of its foreign ministers, Kurt Waldheim and Willibald Pahr, chaired UNISPACE I and II respectively. In 1993, the Secretary-General of the UN moved the Office of Outer Space Affairs, along with COPUOS, to Vienna, giving that city the additional distinction as one of the headquarters for the UN outside of New York and Geneva.
Austria has played a pivotal role in the creation of the current body of international space law including the four major space law treaties. It also played a significant role in the adoption of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (better known as the Moon Treaty of 1979) when it became the fifth country to ratify the accord in 1984, technically making the Moon Treaty binding international law. It is this rich history of involvement in the creation of international space law that provided Austria with substantial skills and experience to draw upon when it crafted the Austrian Space Act.
The Austrian Outer Space Act (Space Act) addresses space activities originated by Austria and its nationals. Any space activities performed by Austria and its nationals are limited by the Austrian State Treaty signed on May 15, 1955, which prohibits Austria from possessing, constructing, or experimenting with any self-propelled or guided missile or torpedoes, or apparatus connected with their discharge or control.3 The Austrian State Treaty does not prohibit Austria from developing satellites or spacecraft. It also does not prohibit Austria from becoming a launching state under the Convention on International Liability for Damage Caused by Space Objects (the Liability Convention) and the Convention on Registration of Objects Launched into Outer Space (the Registration Convention), both of which Austria is a party to.
The Space Act elaborates upon four fundamental areas: definitions of the law’s application and terms, duties of Austrian nationals to obtain permits for and conditions of space activities, the creation of a domestic registry for space objects, and indemnification to the Austrian federal government and penalties for violation of the Space Act’s provisions. This article examines these key areas of the Space Act using a rough translation of the text of the act, which is written in an Austrian dialect of German.
The Space Act begins with §1, which addresses the scope of its application. In particular, §1 requires the Space Act to be applied to space activities that are either performed on or from Austrian national territory, on registered ships or airplanes, or performed by an Austrian citizen or legal entity subject to the jurisdiction of Austria. This section also stipulates that the Space Act is to be applied in accordance with international law, which appears to acknowledge the existing body of international space law.
Terms within the Space Act are defined in §2. For example, §2 defines the terms “space activity” and “operators” as they are used in the context of the law. There is also the term “Weltraumgegenstände,” which appears to defy English translation. However, under the definition of the Space Act, “Weltraumgegenstände” is roughly defined as an object and its components that are placed into outer space. It is noteworthy that the definition of Weltraumgegenstände is similar to the definition of “space object” found in Article I(d) of the Liability Convention and Article I(b) of the Registration Convention, which suggests that the term is referencing a “space object.” For purposes of this discussion, the term “Weltraumgegenstände” will be used in the remainder of this essay.
|Austria’s rich history of involvement with the development of international space law during a time when it was not part of the group of space-faring nation only benefits it in the present as it stands to join the ranks.|
The Space Act creates a duty for persons or legal entities to obtain permits for space activities in §3. Under this section, the Space Act appears to assert its obligation under Article VIII of the Outer Space Treaty to retain jurisdiction of any Weltraumgegenstände or personnel performing space activities. It does this by requiring any citizen or legal entity of Austria to obtain a permit from the Federal Ministries/Federal Minster and therefore the consent of the Austrian government to perform space activities. This is consistent with the practice of other spacefaring nations, such as the United States and the Russian Federation, which have similar obligations under Article VIII of the Outer Space Treaty and require authorizations through designated federal agencies.
The conditions under which permission may be given to commence and continue a space activity are outlined in §4 of the Space Act. Under this section, eight conditions must be met in order for permission to be granted to perform space activities. These include:
As noted above, §4 of the Space Act requires that space activities be carried out in compliance with space debris mitigation requirements outlined in §5. In particular, §5 stipulates that the person or entities carrying out a space activity take precautions to avoid the creation of space debris by following international guidelines for space debris mitigation. This section of the Space Act appears to reference the UN Space Debris Mitigation Guidelines, which were adopted by COPUOS.4 The guidelines are not legally binding, but states are encouraged to take measures to ensure that the guidelines are adopted domestically. Austria has appeared to have taken this step and consented to and adopted the guidelines at least implicitly through §5 of the Space Act.
The requirement of a domestic registry for Weltraumgegenstände is addressed in §9 of the Space Act. Under Article IV(1) of the Registration Convention, Austria is required to provide information regarding Weltraumgegenstände for the international Registry of Objects maintained at the UN. However, Article II(1) requires Austria to create and maintain a domestic registry, which §9 addresses.
The registry is fleshed out in §10 of the Space Act in conformity with Article II(3) of the Registry Convention, which allows a State to determine the contents of its domestic registry and the conditions under which it is maintained. Under §10 a person or legal entity performing a space activity is required to provide the following information to the domestic register:
Under the requirements of §10 there appears to be no definition of “launching state” nor is there any definition in §2. It stands to reason that the Austrian Parliament chose to adopt the definition of “launching state” found within Article I(a) of the Registration Convention and Article I(c) of the Liability Convention. It also appears that the Austrian Parliament in §10 of the Space Act intended for the international designation given to a Weltraumgegenstände under Article IV of the Registry Convention to be included as part of the requirements of the domestic registry of §9.
The Space Act addresses Austria’s liability for damage caused under Article II and Article III of the Liability Convention in §11. Specifically, §11(1) implies that Austria reserves the right to seek indemnification against a person or legal entity who causes damage under Article II or Article III of the Liability Convention during the course of a space activity.5 Additionally, §11(2) of the Space Act appears to specifically address damage caused under Article II of the Liability Convention, whereby Austria would be held strictly liable. The essence of §11(2) seems to base indemnification on the negligence of the person or legal entity performing the space activity and whether that negligence was due to the adherence or lack thereof to the requirements of §§3 and 4 of the Space Act. This suggests that for purposes of indemnification, Austria applies a fault-based standard even though Austria would be held strictly liable for incidents arising under Article II of the Liability Convention.
The final provision of the Space Act that bears consideration is §14. Under this provision, the Space Act establishes penalties imposed by the federal government of Austria for the violation of the Space Act or the regulations created to carry it out. The Space Act appears to take a two-prong approach to do this: When a violation of the Space Act or its subsequent regulations occurs, §14 appears to seek redress through Austria’s judicial branch. However, if the violation is administrative in nature and is not actionable through the courts, §14 stipulates a fine of up to 100,000 Euros. Furthermore, §14 stipulates that violations of §§3 and 7 of the Space Act are punishable by a fine of at least €20,000.
Austria’s rich history of involvement with the development of international space law during a time when it was not part of the group of space-faring nation only benefits it in the present as it stands to join the ranks. The Austrian Outer Space Act is the culmination of the experience Austria has gained after many years of crafting international space law, and the creation of its own domestic space law demonstrates that those lessons did not go unheeded. As Austria seeks to enter the club of spacefaring nations it does so acutely aware of the challenges and responsibilities that comes with it. That within itself will make it a welcome addition to the community.
2 Bruno Philip Besser, Austria’s History in Space, European Space Agency, HSR-34, January 2004.
3 See Union of Soviet Socialist Republics, United Kingdom of Great Britain and Northern Ireland, United States of America, France and Austria, Category VII, May 15, 1955.
4 The principles of the United Nations Space Debris Mitigation Guidelines are: 1) limit debris released during normal space operations; 2) minimize the potential for break-ups of space objects during operational phases; 3) limit the probability of accidental collision in orbit; 4) avoid intentional destruction and other harmful activities; 5) minimize the potential for post-mission break-ups resulting from stored energy (fuels); and 6) limit the long-term presence of spacecraft in the low-earth orbit region after the end of their mission. See UN General Assembly, 50th Session. Committee on the Peaceful Uses of Outer Space Report of the Scientific and Technical Subcommittee on its forty-fourth session, held in Vienna from 12 to 23 February 2007, (A/AC.105/890, Annex IV, para. 3). Official Record. Vienna, Austria, 2007.
5 The first scenario of the Liability Convention envisions a space object that causes damage to the surface of the earth or an aircraft in flight. It applies a strict liability standard where a state is held strictly liable for any damage caused by a space object even in the face of circumstances that are outside a its control. Under this standard, if more than one state is responsible for the launch of the space object in question then that state will be held joint and severally liable for any damage caused. The second scenario of the Liability Convention envisions a scenario where a space object causes damage someplace other than the surface of the earth, i.e. another space object in orbit, outer space or another celestial body. The standard of liability for the second scenario imposes liability only if it can be shown the damage caused was due to the fault of the launching state.