The European Space Agency’s Contribution to National Space Law

Abstract

The European Space Agency (ESA) represents a mechanism of international cooperation among its Member States and acts as a partner in international space cooperation on a global scale. Carrying out space programmes and operating satellites in outer space, the ESA is a rare example of an intergovernmental organisation that is, from a functional perspective, both a spacecraft developer and  an operator, having accumulated unrivalled technical expertise over four decades and having fostered competitiveness through investment in the space industry across its Member States. This chapter explains the way in which the ESA and its Member States interface, de iure and de facto, in law making. Capitalising on the example of Finland and its novel domestic space law (2018), the chapter highlights and explains the process of interaction between an intergovernmental mechanism and a national administration, showing why and how international mechanisms can become facilitators of national law making for the benefit of legislative and executive branches and non-governmental norm-addressees alike.

The views expressed are made exclusively in personal capacity.

1 Introduction

This chapter examines the ways and limits of cooperation¹ between an international intergovernmental organization (‘IGO’)—the European Space Agency (‘ESA’)—and its Member States for the purposes of establishing and implementing national space law. It also discusses whether such interaction could be labelled a sui generis ‘consultancy service’. Two predominant ways, or mechanisms, of cooperation are identified in this respect:

• (i) ESA providing an intergovernmental mechanism for its Member States, enabling the latter to cooperate and exchange information on international and national space law;²

• (ii) ESA acting as a service provider delivering ‘general counselling services’ to all Member States and specific ‘consultancy services’³ upon a Member State’s individual request.⁴

The discussion develops along four steps: First, the international legal framework relating to space activities is summarised, as a backdrop for the following analysis. Second, the intergovernmental mechanism of ESA is explained and contextualised. Third, the procedure of legal and technical advice towards ESA Member States, its legal basis and its limit are explored. Fourth, the resulting legal effects are sketched out and conclusions are drawn.

2 Space Law As a Branch of International Law

2.1 The Foundation of International Space Law

The human quest to explore the unknown has sparked the fascination of many for centuries. The first space missions launched end of the 1950s drove the need for legal principles governing the activities of states in outer space.⁵ These principles were first drafted in the form of United Nations (‘UN’) General Assembly Resolutions,⁶ before being codified in the Outer Space Treaty (‘OST’), which entered into force in October 1967 and sets out rights and obligations of states relating to the exploration and use of outer space.⁷ In the following years, four consecutive treaties complemented and further developed the OST. They establish more specific rights and obligations in relation to the rescue of astronauts and return of space objects;⁸ the liability for damages caused by space objects;⁹ the registration of space objects;¹⁰ and the activities of states on the Moon and other celestial bodies¹¹ (collectively referred to as ‘the UN space treaties’). While the extent of their acceptance varies,¹² the UN space treaties nonetheless form the ‘cornerstones’ of international space law, laying down the foundational principles for the governance and regulation of space activities.

Recognising that the peaceful exploration and use of outer space requires continuous intergovernmental dialogue, the UN space treaties call for international cooperation.¹³ Accordingly, states have established mechanisms to provide for coordination and exchange, including the further development of space law itself. The primary forum to deliberate on matters relating to the peaceful exploration and use of outer space is the UN Committee on the Peaceful Uses of Outer Space (‘COPUOS’).¹⁴ COPUOS is the only UN committee entirely dedicated to matters relating to outer space. Beyond COPUOS, other institutions facilitate coordination and cooperation in relation to space activities, among those various IGOs¹⁵ including ESA. In the space law sphere, IGOs can not only declare acceptance of the rights and obligations provided for in the UN space treaties¹⁶ but may take on a role in the development and application of space law itself. This latter possibility is central to ESA’s contribution to national space law.

2.2 National Space Law

The legal principles provided for in the UN space treaties are implemented and further developed through national law.¹⁷ While the OST does not oblige states to enact national space law,¹⁸ many states have opted for the creation of national space law as the most effective way of implementing such principles.¹⁹ Adherence to international law requires ‘concrete measures’²⁰ to understand and, where necessary, influence the carrying out of space activities. Consequently, states have an interest, if not a constitutional necessity, to set up a domestic regulatory framework that governs space activities of their nationals.²¹

A central element of national space law is the authorisation and supervision of non-governmental space activities. The duty of states to authorise and supervise is inherently linked to their international responsibility and liability for such activities, and a corollary to the freedom of exploration and use of outer space. States parties must ensure that national space activities, including those by non-governmental actors, are carried out in compliance with international law.²²

In addition to their bridging role between the international and domestic spheres, national space laws can also ‘incorporate’ norms of non-legally binding character to become binding for the norm-addressees. Thus, they also take on a bridging role between law and ‘soft law’.

The importance of national space law in the overall governance of space activities is growing commensurate to the increasing commercialisation of space activities and the diversification of space actors. States have an interest to ensure that non-governmental space actors are organised in a responsible manner and that adequate technical and financial safeguards are put in place to ensure that sufficient resources exist throughout a space activity’s lifecycle. This requires them to make informed decisions. In addition, individual state behaviour cannot be isolated from the international context. If each state were to consider exclusively own interests and not the impacts of its legal and policy actions on others, the global governance of space activities would run the risk of becoming increasingly fragmented.²³ The domestic regulation of space activities is therefore not only a consequence of a state’s obligations and interests, but it can provide fresh impetus to promote cooperation, norm coherence and the rule of law.²⁴

2.3 A Paradigm-Change in Space Law-Making

While the UN space treaties remained, for decades, the predominant source of space law, two more recent—and interconnected—developments are diversifying the picture of space governance in the twenty-first century:

• 1. First, the increase in space actors and activities, notably of non-governmental (‘private’) nature,²⁵ is leading to more States adopting national space laws.²⁶ States, vested with sovereign power to regulate the conduct of natural and legal persons within their jurisdictions, have the obligation—and interest—to exercise an appropriate level of control over non-governmental space activities.²⁷

• 2. Second, space law is increasingly complemented by non-legally binding instruments, including, inter alia, UN resolutions, guidelines, codes of conduct, industry best practices and technical standards.²⁸ The character of such ‘soft law’ instruments is heterogeneous and their recognition and implementation to guide the behaviour of modern-day space actors remains voluntary.²⁹ National space laws are an avenue to transform non-legally binding instruments into legal obligations at national level.³⁰

As other fields of law, space law continues to develop and transform along with the activities it regulates, and the competence to control, or to ‘regulate’, entails the competency to be able to control. Hence, states must possess ‘appropriate means’ to efficiently—and suitably—manage the behaviour of non-governmental actors within their jurisdiction. This opens an avenue for IGOs such as ESA to support the process of establishing and implementing national space law. IGOs provide a forum for the coordination of national approaches, thus supporting that space activities are regulated with a certain degree of unity and coherence. Their assistance can be an important factor in establishing and implementing national space law, owed to the fact that the authorisation and supervision of national space activities are not only a legal undertaking but require detailed technical and practical knowledge.³¹

3 The European Space Agency

3.1 Object and Purpose

ESA is an IGO established by the Convention on the Establishment of a European Space Agency (‘ESA Convention’). Signed in May 1975, the ESA Convention did not enter into force until 30 October 1980.³² ESA features the characteristics commonly accepted as constituent elements of international organisations:³³ It is founded by an international treaty, governed by international law and possesses its own international legal personality; the latter expressly established in the ESA Convention.³⁴ As of 2021, it has 22 Member States.³⁵ Its institutional structure, with a Director General as the executive organ and a Council as the plenary organ, underlines this focus. The institutional set-up, however, must not belie the Agency’s regional and global significance in the space domain. With an annual budget of approximately 6 billion Euro in 2020,³⁶ major regional and international cooperation partners, renowned technical competence and a long history of scientific achievements, ESA is a key player in spaceflight.

ESA’s raison d’être is contoured in one sentence: ‘The purpose of the Agency shall be to provide for and to promote, for exclusively peaceful purposes, cooperation among European States in space research and technology and their space applications (…)’.³⁷A particular feature is ESA’s role as a ‘space agency’ for those of its members states which do not have their own national space agency. Alongside, ESA was from the outset perceived necessary to bundle individual states’ resources to realise common inter-State goals, considering that ‘the magnitude of the human, technical and financial resources required for activities in the space field is such that these resources lie beyond the means of any single European country’.³⁸

The ESA Convention grants the Agency international legal personality, which empowers it, inter alia, to enter into agreements with other subjects of international law, both states³⁹ and other IGOs.⁴⁰ ESA also possesses contracting capacity, which enables it to enter into private legal relationships, predominately with the space industry of its Member States, to carry out its mission and ‘improve the worldwide competitiveness of European industry’.⁴¹ ESA can furthermore acquire property and be a party to legal proceedings, within the limits of its immunities.⁴² Finally, ESA’s legal personality enabled it to declare acceptance of some of the UN space treaties and thus carry rights and obligations provided for in the latter. This interplay between treaty law and institutional law has not only led to the creation of specific ESA secondary law⁴³ but is also important for ESA’s role in advising its Member States.

3.2 Competences

The question of an IGO’s legal personality is to be distinguished from its competences, i.e. powers.⁴⁴ An IGO’s powers are not ‘any uniform set of activities’ but instead ‘an individual set of powers (…) rarely carved in stone but (…) open to different constructions’.⁴⁵ Still, there is a good deal of ‘carving’ to be found in ESA’s ‘foundation stone’, the ESA Convention. It starts with a detailed account of the Agency’s purpose, which inter alia includes: the elaboration and implementation of a long-term European space policy; the recommendation of space objectives to Member States; the concerting of policies of Member States; the elaboration and implementation of activities and programmes in the space field; the coordination of the European space programme and national space programmes; and finally the elaboration and implementation of an appropriate and coherent industrial policy.⁴⁶

A strong relation with the European space industry is at the heart of ESAs existence, regulated by a toolset of industrial policy rules and regulations and implemented through procurement contracts. Through this system, ESA supports and develops the worldwide competitiveness of European space industry. The straightforward distribution of ESA’s competences among its organs, and the clear mechanisms⁴⁷ for its daily operations, make it unnecessary in practice to resort to theories of implied powers or other means of interpretation.

3.3 Leeway and Limit of ESA’s Competences

ESA carries out its mandate through the constant creation of norms of heterogeneous character. Some of those are legal norms; others have political or administrative character. In a simplified approach, three categories of legal instruments can be distinguished along the sphere within which they usually take and develop effect: (i) internal legal acts; (ii) legal acts with effect towards Member States; (iii) legal acts with effect towards third parties. A different angle can be taken based on the legal foundation of the instrument, i.e. whether it is explicitly foreseen in ESA’s primary law or introduced by secondary or tertiary legal layers. However, those are merely attempts of characterisation and categorisation, to describe what is immanent to any IGO: legal norm-making as an epiphenomenon of an organisation’s existence and operation.

The nature of legal norms created in and through an IGO’s system depends on the latter’s founding treaty. More specifically, it follows from (i) the purpose and objective of the organisation; (ii) the type and extent of transferred competences; (iii) the system-inherent institutional processes; and (iv) the legal relation between the organisation and its Member States. What do these forms of institutional norm-making mean for the IGO’s relationship with its Member States? Can ESA take decisions to bind its Member States, and if so, how far can those decisions reach into the respective domestic legal order of a Member State? Wouters and De Man argue that it is ‘undisputed that international organizations can take decisions that are binding upon their member states and that they can even exercise sovereign powers’,⁴⁸ yet they equally diagnose that the ideal of an organisation ‘creating law through predictable mechanisms in a way consistent with the goals of the member states (…) no longer hold[s] true’.⁴⁹ In this regard, it is important to distinguish law making with Member States (i.e. with the participation of Member States through the institutional mechanism) from law making for Member States. Many of ESA’s legal instruments require decisions of the Council as the organisation’s plenary organ; this can be considered law making with Member States’ participation, and such participation is necessary although Member States are neither addressed or bound by the resulting instrument, nor a party to it.

The situation is inversed when it comes to ESA Programme Declarations which are international agreements⁵⁰ between certain or all ESA Member States and with legally binding effect upon them, whereas ESA is no party to them.

Both types, however, derive from the same primary legal source, the ESA Convention, and they are generated through the same legal system. The conditions and effects of norm-making within an organisation’s institutional system are thus, evidently, of great variety. Their range is characterised by the extent to which an organisation is both a coordination medium for its members or a legal entity distinct from its members. An example of the latter will be discussed in the following section.

3.4 ESA As an Actor in Space Governance

While IGOs cannot be parties to the UN space treaties in absence of a specific provision allowing them to do so, they may—provided the fulfilment of certain conditions⁵¹—unilaterally declare their acceptance of the rights and obligations provided for therein, except for the OST.⁵² ESA, through decisions of its Council,⁵³ has declared acceptance of the Rescue and Return Agreement; the Liability Convention and the Registration Convention. The conditions for declaring acceptance of the Moon Agreement were, and still are, not fulfilled⁵⁴ for ESA.

ESA also holds a permanent observer status in COPUOS. Owed to the gradual standstill of global treaty-making in the space domain after the 1980s, alternative forms of normative development play a particularly important role in space law altogether, alongside the national regulation of space activities. The relative influence of ESA in those processes—including cooperation, coordination and information sharing—is based on two factors: first, its technical competence and experience as a space actor; second, its ‘cooperative DNA’, i.e. the inherent capacity to coordinate, or offer platforms to coordinate, the positions of multiple States.

In this respect, ESA acts as an ‘intergovernmental mechanism’ for its Member States, allowing them to cooperate and exchange information on international and national space law.⁵⁵ The possibility for ESA Member States to discuss, inform, coordinate and exchange views promotes the development of space law and elevates coherence at international level. Additionally, ESA supports its Member States to coordinate positions and prepare sessions of COPUOS. Together with the more specific ‘consultancy’ role of ESA discussed here, this type of multilateral coordination can help to prevent fragmentation in space law and facilitate finding convergence in its implementation.

It is common that IGOs provide general assistance to their Member States, even if that assistance may touch upon the latter’s internal regulatory sphere. Such assistance is usually not tailored for the purposes of one specific Member State but provided at a more general level to all Member States. In space law, this is evidently the case with the UN. Through a series of well-developed tools of cooperation,⁵⁶ the UN aids governments for their drafting of national space law. Other institutions such as the International Law Association (‘ILA’) complement these efforts, offering their own instruments and analyses.⁵⁷

4 The Availability of ESA’s Assistance to Its Member States

With 50 years of being at the forefront of spaceflight, ESA pools a vast amount of theoretical knowledge and practical experience. Both can be of interest for its Member States even outside the Agency’s own activities and programmes, triggering the question whether any of the Member States could individually profit from capabilities resulting from, and residing within, ESA’s intergovernmental mechanism. It is not only a question of ownership of, and rights in, assets of the Agency;⁵⁸ it is in the same way a question of mandate.

4.1 The General Availability of ESA’s Resources to Its Member States

The ESA Convention refers to the possibility for Member States to benefit from ESA’s experience and knowledge several times, most prominently in Article IX (‘Use of facilities, assistance to Member States and supply of products’). Accordingly, ESA ‘shall make its facilities available, at the cost of the State concerned, to any Member State that asks to use them for its own programmes’ provided however ‘that their use for its own activities and programmes is not thereby prejudiced’.⁵⁹ Furthermore, ‘[i]f, outside the activities and programmes (…) but within the purpose of the Agency, one or more Member States wish to engage in a project, the Council may decide by a two-thirds majority of all Member States to make available the assistance of the Agency. The resulting cost to the Agency shall be met by the Member State or States concerned’.⁶⁰

These provisions refer, primarily, to the carrying-out of (national) space projects or programmes, for example a satellite mission. The term ‘facilities’, in this context, would for example refer to the Agency’s test centres, complex technical facilities which most states do not possess or could otherwise get hold of. However, more than deciphering the practical meaning in each case, it is important to determine the underlying rationale anchored in the ESA Convention. A teleological interpretation of Article IX allows for the conclusion that the Agency is mandated to support an individual Member State for the purpose of assisting in national (space) activities, under some general conditions:

• (i) the assistance must be carried out in accordance with the purpose of the Agency as defined in Article II of the ESA Convention;

• (ii) the assistance must not prejudice the Agency’s own activities and programmes (for example by unduly consuming or deviating workforce);

• (iii) the Member State concerned must cover the associated cost (which come on top of, and must be distinguished from, the state’s contributions to ESA’s programmes and activities); and

• (iv) the Council determines the associated practical arrangements.

The permissibility of assistance, and its limits, correspond to the wider frame of intergovernmental cooperation set up by the ESA Convention. For several of its Member States, ESA is more than ‘just’ an intergovernmental mechanism collaterally supplementing national space capabilities. It is rather conceived as a central element therein, or even a substitute for a national space agency. At the same time, resource efficiency is a topos found across the ESA Convention, from the preamble (‘desiring … to increase the efficiency of the total of European space efforts by making better use of the resources at present devoted to space’⁶¹) to the operative part (‘… the Member States and the Agency shall endeavour to make the best use of their existing facilities and available services as a first priority, and to rationalise them’.)⁶² However, all these differ from the case examined here: ESA’s direct contribution to a domestic regulatory process.⁶³

4.2 Advice and Assistance Upon Request: When ESA Becomes a ‘Consultant’ for National Law-Making and Implementation

ESA’s contribution to national space law making and implementation can be structured along its nature, form, mandate and legal relationship.

• 1. The nature of the interaction between ESA and a Member State. In ESA’s practice, the terms ‘advice’ and ‘assistance’⁶⁴—although not defined in the Agency’s legal framework—describe two levels of ‘relationship intensity’: whereas ‘advice’ is predominantly used to refer to the sharing, in a generic way, of information, knowledge and experience, ‘assistance’ refers to the more concrete taking-over and carrying-out of a task, or assignment. Moreover, the terms ‘legal’ and ‘technical’ specify the content of the relation. Both the distinction between ‘advice’ and ‘assistance’ and between ‘legal’ and ‘technical’—being typically combined in the forms of ‘legal advice’ and ‘technical assistance’—justify the observation that the support by ESA to national law making and implementation can be considered a sui generis activity; that observation is sustained, as will be discussed in the following, by its peculiar legal implications.

• 2. The form of the interaction. Any relation of a certain complexity, even if between an IGO and one of its Member States, is habitually regulated by means of an agreement. Whereas mere legal advice, for example in the form a bilateral meeting or an organised workshop, will hardly necessitate the conclusion of an agreement, certainly not in written form, the provision of expertise to review the technical specifications of a satellite calls for an agreed definition of that relationship and its consequences.⁶⁵ When it comes to helping a Member State, on the latter’s request, to scrutinise a space mission to be licensed, this not only requires resources, but usually also the exchange of information of sensitive nature. In such cases, technical assistance agreements between ESA and the requesting Member State are the instrument of choice. The conclusion of such agreements usually lies within the competence of the Director General.⁶⁶ However, the legal relation between ESA and the government of one of its Member States will always be one of a public nature, not private or contractual. Even if covered by a technical assistance agreement and based on (full) cost reimbursement, this relation cannot be assessed on the grounds of a merely contractual relation between a service provider and a client.

  But where is the line to be drawn between benefiting, en passant, from the expertise of the Executive, and having to reimburse an agreed service provided by the latter? There is no simplistic legal answer. A certain minimum of ‘implied services’ will always be part of the ‘package deal’ between an organisation and its members; in other terms: membership in an IGO entails profiting from that very mechanism. The ESA Convention indirectly confirms this when it calls on both Member States and the Executive to ‘facilitate the exchange of scientific and technical information’.⁶⁷ However, what lies typically outside of that nucleus will have to be compensated so as to not introduce an unbalanced advantage for one Member State to the detriment of the others. Again, the ESA Convention helps in defining these boundaries. Its articles on ‘facilities and services’ (Article VI) and ‘Use of facilities, assistance to Member States and supply of products’ (Article IX) allow identifying as of when the relationship intensity level requires the fulfilment of two conditions: an agreement from the collective (i.e. a Council decision) and the monetary compensation of an individual advantage drawn from the mechanism financed by the collective (i.e. cost reimbursement).

• 3. The mandate. ESA’s advice and assistance for national space law making started with the gradual rise of space law making in Europe. With this trend unfolding during the last decade (2010–2020), most of ESA’s activities in this respect date to this period. In two subsequent Council meetings held at ministerial level in 2016 and 2019, the ministers of Member States responsible for space matters collectively acknowledged the Agency’s activities in this respect by appreciating ‘the continued role of ESA in supporting Member States, at their request, in the establishment and implementation of national space legislation through technical and legal advice’.⁶⁸ This is not to be construed as granting an enlarged competence, but rather as the (political) acknowledgement of the Agency’s role in applying the ESA Convention.

• 4. The legal relationship. When it comes to ESA advising a national legislator for establishing or applying domestic law, and even more so if such relation is formalised by means of an agreement, to what extent can one speak of a ‘Member State relation’ still? Is it not rather a relationship between a government and an external expert, or consultant, who is tasked—and paid—for carrying out a specific assignment, under specific conditions? In that case, the external expert would merely ‘happen to be’ an IGO, and the relation would not differ from the private contractual relation with any other ‘expert’ hired for delivering a work or service, be it a natural or legal person.

  This comparison is based on a simplification. The IGO-Member State relation cannot be ignored; it will still produce some effect, not least because it provides for the very basis of the ‘contractual’ relation entered into through a technical assistance agreement. Without the mandate established in the founding treaty, and the Member State quality defined through the status of State Party to that treaty, the relationship of assistance in the described form could not happen.⁶⁹ Further to that, the assisting party—ESA—remains in any case an IGO, with all consequences, in particular with the privileges and immunities it enjoys in the relation to its Member States.⁷⁰ Precisely this relation is taken up by Article 40.3 of the Agency’s Financial Regulations which clarifies, for making available the Agency’s expertise, facilities, services or products, the following: ‘These activities shall be considered official activities of the Agency in the sense of Article VII.2 of Annex I to the Convention. They shall be covered by the privileges and immunities applicable to official activities of the Agency (…)’.

5 Relationship, Scope and Limit of International ‘Consultancy’ for National Space Law

With regard to its role as a service provider, ESA’s engagement to assist Member States in the development and application of national space law may take on two degrees of relationship intensity:

• (a) ESA is providing general counselling services to its Member States in relation to legal, technical or practical questions on space activities. This generic advice is part of the ‘membership package’, i.e. it comes as an epiphenomenon the very relation between the IGO and its Member States, and the latter are not obliged to reimburse related cost;⁷¹and

• (b) ESA is providing specific ‘consultancy services’ upon request by one of its Member States, during either (a) the drafting phase, i.e. making of the national space law, or (b) the implementation phase, i.e. making of administrative decisions in application of the law. For this specific advice, ESA and the requesting—and at the same time recipient—Member States usually agree on separate terms and conditions, especially regarding financial and managerial aspects of the service to be delivered, in line with ESA’s legal framework.

The latter case (b) is arguably a rather unique arrangement in which ESA offers its own competencies, as a de facto ‘consultant’, for the benefit of a requesting Member State. Such a service may be requested, and provided, before the national space law is in place, of after its enactment; in the latter case, the assistance will not be asked by the legislator but by the executive organ, who needs to apply the law to a specific case. The point in time of the service delivery has implications on the factual circumstances of the case underlining the special nature of the service.

5.1 Setting Up a National Space Law Framework: The Drafting Phase

In the drafting phase, in addition to safeguarding legislative techniques, a legislator must ensure that it has a sufficiently good level of knowledge and information relating to the subject matter of the legislation. For this purpose, it may seek external expert opinion to the extent prescribed and limited by constitutional and administrative legal requirements. The regulation of spaceflight is no commonplace subject matter, especially not for those states which have not been exposed to this field before. The national legislator will therefore have to study and understand the nature and character of space activities before attempting to define the regulatory conditions; to the extent, this process needs external expertise—and it often will do so—, such expertise will have to be acquired from appropriate, trustful sources.

Those states which look back on a significant spaceflight history, and which possess both a national (space) infrastructure and an established (space) community, are usually able to identify and access such sources ‘in-house’, that is: at their own domestic level.⁷² Others, in the absence of national sources, may turn to the next-closest reliable source; at this stage, an intergovernmental mechanism such as ESA may be the source of choice, especially because the Member State can profit from the ‘package deal’ in satisfying its needs.⁷³ Moreover, a public intergovernmental entity will typically bring the additional benefit of relative impartiality, opposite to industry which, despite being a central player to also listen to carefully, will have to defend its specific private interests.⁷⁴

5.2 Application of the National Framework to Concrete Cases: The Implementation Phase

In the implementation phase, the motivation for seeking assistance is still the same: profiting from external expertise. However, the context and the circumstances in which the assistance is requested is an entirely different one: the application of the existing law, and, more specifically, the authority’s decision-making process. The assistance could in this phase include more detailed assessment on the characteristics and circumstances of the specific mission, both from legal and technical perspectives.

Opposite to the legislative process of law making, the process of executive decision making directly affects the individual rights and interests of citizens. Considering that the OST obliges States Parties to authorise ‘the activities of non-governmental entities in outer space’, this authorisation process is a core element of any national space law. It serves the purpose to ensure that the prerequisites set by the national space law are in place; only upon official validation may a license for carrying out a space activity be granted. The license decision directly affects the rights of an individual license applicant, who may be granted the authorisation to undertake a space activity, or not. Either way—‘go’ or ‘no-go’—the decision will produce consequences at multiple levels; for the licensee, the taxpayer or third parties which may be affected by the activity going forward or being stopped. If an IGO’s expertise is to play a role in this process, the limits and effects of providing such expertise will have to be made clear.

5.3 Consequences of the ‘Relationship Intensity’: Internal Constitutional Boundaries and the ‘Terms of Service’

There is a limit to be drawn by defining exactly how far expert advice can reach into a national regulatory process. ESA’s competences and its relationship with Member States, both established by the ESA Convention, do not foresee the Agency to exercise any sort of decision authority in that regard.⁷⁵ The obligation to authorise and supervise national space activities set out in Article VI of the OST is the legal duty of states. Subject to their national legal frameworks, states exercise a ‘freedom of authorisation’ by having the right to refuse to grant a license or stipulating conditions to it (an authorisation is not a fait accompli). The expert opinion by ESA will always be of neutral, technical nature and cannot constitute a recommendation, a certification or any other expression of judgmental character. The same must be confirmed from the state’s perspective: Through voluntary cooperation and informal exchange, states remain in control of drafting and implementation and responsible for the product: a national regulatory framework and the authorisation decisions made in its application.⁷⁶

But what about the ‘terms of service’ governing the relationship between ESA and the Member State when ESA acts as a ‘consultant’? That relationship is one between a national authority and a party that happens to be a subject of public international law. In parallel, the membership relationship between the state and the IGO continues to exist, while a separate written agreement relating specifically to the assistance provided may be concluded, especially in cases when the specific circumstances require more complex, more detailed and longer service provision. Despite its content being de facto that of ‘consultancy service provision’, this instrument will ultimately be characterised as an international agreement between ESA and, usually, the ministry responsible for space affairs on the Member State’s side, possibly triggering questions on its specific legal nature within the state’s constitutional and administrative hierarchy, and its interpretation.

6 Concluding Remarks: The Effects of ESA’s Advice and Assistance to Member States

This contribution presented and discussed two ways of cooperation between ESA and its Member States relating to national space law: ESA as an ‘intergovernmental mechanism’ and ESA as a ‘service provider’; that distinction is a structural aid and a practical finding, likewise. The remarkable, often subtle diversity in the relationship between an IGO and its Member States—as exemplified here in the case of legal and technical assistance for law making and decision-making—is based on different legal pretexts and produces different legal consequences.

As shown, the regulation of space activities is an unusual field that requires specific technical expertise. Therefore, national regulators may require external help. With reliable expertise being scarce, a state seeking for help to regulate space activities must mitigate risks by choosing reliable partners and entering into solid contractual relationships. ESA, an intergovernmental mechanism ‘solidified’ over decades through the successful management of space programmes for its Member States, can offer both legal and technical assistance in a rather unique way. However, in doing so, ESA must respect the limits of its own legal framework provided for by the ESA Convention. It cannot act in the same way as a consultancy company contracted under private law. Neither can it take on tasks that would not be covered by its mandate nor can it accept contractual terms that would shift typical ‘consultancy risks’ from the client, the Member State, to the organisation.

An important foundation for the interaction between ESA and its Member States in the context of national space law is that the regulation of national space activities lies exclusively within State competence. Whatever level that interaction takes, even at its most intense level, it does not shift that competence, and duty, from the state to ESA. ESA’s role as a ‘consultant’ can support the process of national law making, or even the formulation of an individual governmental license decision, but it remains an input, an element of advice. Augmenting regulative ‘competency’ through external expertise does not mean that the corollary of the regulator’s competence, i.e. its responsibility, would be outsourced.

Organising external expertise to help domestic regulation is part of a cross-disciplinary exercise. Compliance with international space law obligations requires technical competencies, which might be more efficiently drawn through forms of consultancy, especially if the state is merely enabling private actors to carry out space activities. Arguably, it may therefore be more resource efficient to receive the required knowledge from external sources, provided, of course, that the knowledge comes from a trusted source: after all, it forms the basis of authorities’ actions. In the case of ESA, the membership relation will guarantee a certain minimum level of trust and reliance. ESA can convey to its Member States not only its technical expertise gained during the years of developing and operating spacecraft, but also its expert opinion on the regulation of space activities itself, including facilitating networking among various regulators.⁷⁷

What may look, at the end, as a straightforward exercise of knowledge transfer and advise-giving, will produce practical and legal consequences that may go far beyond that bilateral relationship. The assistance provided by ESA not only directly helps Member States to make and implement national space law, but it ultimately sustains the very role and purpose of public international law by inducing something that can be labelled a consistency effect. The more Member States cooperate through and with the ESA mechanism, the more likely will it be that international legal principles are implemented nationally in a similar manner. This entails that the central international obligations are understood and complied with based on the same understanding; that details of domestic regulation are discussed in a regular exchange; and that lessons learned by states, individually and collectively, are fed back to promote global space governance. ESA’s assistance to its Member States in making and implementing national space law is therefore, ultimately, a contribution to the role, rule and further development of international law.