1 Introduction
This article will present the ongoing work on the reform of the Norwegian space law, as well as some central legal issues discussed by the expert committee appointed to prepare a draft space law.(1)This article is based on the presentation by the author at the European Interparliamentary Space Conference (EISC) 2021, 10th May 2021. The author was a member of the expert committee appointed by the Ministry of Trade and tasked to prepare a proposed legal text. The Chair of the committee was law professor Trine-Lise Wilhelmsen (Scandinavian Institute of Maritime Law). Other members were: Terje Wahl/Bo Andersen (Norwegian space agency), Hege Susann Aalstad (Civil Aviation Authority), Frode Målen (Norwegian Communications Authority). The secretary of the committee was Simon Torp. The committee was advised by Prof. Steven Freeland (University of Western Sydney) on some of the issues. The committee worked on the law proposal for one year, in 2019, and in early 2020 the proposed text and the explanatory report called Right into Orbit (cited in fn. 13) was delivered to the Ministry. The Norwegian law which is currently in force is one of the oldest - arguably, the oldest(2)Frans G. von der Dunk, Atle Nicolaisen, «Vikings first in National Space Law: Other Europeans to Follow», (2001) Space, Cyber, and Telecommunications Law Program Faculty Publications. 39, available at: Digital Commons@University of Nebraska-Lincoln. - piece of space legislation in the world. The law entitled "Law on launching of objects from Norwegian territory etc. into outer space"(3)Law # 38 adopted on 13th June 1969, in force as of 13th June 1969. In Norwegian: Lov om oppskyting av gjenstander fra norsk territorium m.m. ut i verdensrommet. was adopted in 1969, shortly after Norway ratified the Outer Space Treaty.(4)Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other celestial bodies, 610 UNTS 205. Norway signed the Treaty on 10th October 1967, ratified on 6th June 1969.
The Norwegian space sector has grown and evolved considerably over recent decades.(5)See Norwegian Space Strategy [Høytflyvende satellitter – jordnære formål: En strategi for norsk romvirksomhet], Meld. St. 10 (2019 –2020), available in Norwegian at regjeringen.no. At the present time, a very significant expansion in Norwegian space activities is planned for the Andøya Space Centre, which will start launching small satellites into polar and sun-synchronous orbits.(6)www.andoyaspace.no. This important sectoral development should be seen within the broader perspective of Norway's membership of the UN Committee on the Peaceful Uses of Outer Space (COPUOS)(7)Established by UNGA Res. 1348 (XIII), ‘Question of the Peaceful Use of Outer Space’, 13 December 1948. Norway has been a member since 2017., as well as Norway's participation in the European Space Agency projects and the EU space programs. The Norwegian Space Strategy(8)Cited in fn. 6 above. (hereinafter the Strategy) underlines the significance of the space sector for both Norway, its cooperation partners and for various sectors, including maritime transport and offshore, which benefit from space-based services. The Strategy also highlights the relevance and importance of the legal framework for safe and sustainable space activities both in Norway and also globally.
Due to the active participation of commercial actors in today's space sector, appropriate laws and regulations at national level are indispensable for ensuring the responsible conduct of such actors in conformity with States' international obligations and national concerns. Although different countries have chosen somewhat different solutions to their domestic space legislation, (9)A. Froehlich, V. Seffinga (eds.), National Space Legislation, Studies in Space Policy 15, Springer International Publishing AG 2018, https://doi.org/10.1007/978-3-319-70431-9_3 their experiences - especially those of Denmark, Finland, France and some others - have been very useful in the committee's work.(10)The committee also consulted UN Recommendations on National Space legislation as well as the Sofia guidelines for a Model Law on National Space Legislation, adopted by the International Law Association (ILA) Resolution 6/2012, available at www.unoosa.org.
Norwegian space law reform aims at meeting the requirements of the contemporary space sector, which is dynamic, international and increasingly dominated by commercial actors and inter-State cooperation. The space law currently in force contains only three articles, which prohibit launching of objects into outer space without permission from competent authorities. The law applies to launches from Norway's territory, including Svalbard, Jan Mayen and Norwegian dependencies, both from Norwegian vessels and aircrafts, as well as from areas beyond national sovereignty, if launching is undertaken by a Norwegian citizen or person domiciled in Norway. The law envisages that the authorities may attach certain conditions for launches and lay down provisions on control of launching activities included in the law. All in all, the current law does not meet the requirements of the international space law and is no longer adequate for the needs of today's space sector.
The work on the new law commenced in 2019, with a view to providing a contemporary and up-to-date legislative solution for the space sector. It should be pointed out that this article discusses the proposed legal text and the work of the expert committee as handed over to the responsible ministry. At the time of writing, it is not known whether the responsible ministry or the Parliament will follow the proposal or will choose to adjust the proposed draft. In this work, the committee also proposed alternative solutions to some of the issues, where deemed feasible. Ultimately, the legislator will have to choose the best solution by weighing economic, political, strategic or other interests. The final law text may obviously be different from the proposed legal text.
The committee considered several objectives when working out the proposal for a new law. To begin with, the law has to ensure compliance with the international obligations of Norway to authorize and supervise private space activities, and to ensure that space activities under Norwegian jurisdiction or control are safe and sustainable. The international space law leaves it to the States to detail out these obligations, while at the same time it is silent or unclear (or even outdated) on some essential questions. One of the significant issues is what activities should be encompassed by the new law, and what kind of provisions, obligations and requirements the new space law should include. It is also necessary to consider objectives, which may sometimes conflict with each other. For example, the law needs to be industry-friendly and encourage commercial space activities with a strong international dimension, meaning that it is important to ensure legal certainty for actors, many of whom come from foreign jurisdictions, and not to raise excessively high regulatory barriers. At the same time, it is crucial to determine the adequate level of safety, the acceptable level of risk and sufficiently stringent requirements for granting the permit, such as financial capacity of the operator, liability and insurance. In addition, the technologically dynamic character of the space sector means that the conditions and modus operandi of space actors may change relatively quickly, requiring the law to be adaptable and flexible enough to adjust to new challenges. Although the envisaged space law is generally aimed at commercial space activities, state security aspects are also inevitably relevant for both for law-makers and for the competent space authorities, due to the dual-use character of the space sector and the critical importance space infrastructure has for the society.
Norway also has to tackle the novel challenges related to launching satellites into orbit from within Norway's territory. This is also a very significant expansion of Norwegian space activities in the legal context, with significant implications for international responsibility and liability, and clearly requires a legislative action. Among the EU/EEA States, Norway will be the only country to launch small satellites into orbit from a launch site located in Europe.(11)In the EU/EEA mainland territory. The nearest European launch site is located in Plesetsk, Russia. See Thomas G. Roberts, ‘Spaceports of the World’ < https://aerospace.csis.org/data/spaceports-of-the-world/> accessed 14 July 2021. Norway will become an important launch site services provider for European and overseas partners, including private actors, and needs legislation which meets the interests of international space market.
It should be kept in mind that the proposed legal text is written in the Norwegian legal tradition, which is a part of the Nordic legal tradition. This means among other things that the law itself is a more general, framework law, which sets out the main provisions and requirements. The committee deemed such an approach to be both adequate and necessary to ensure that the law is future oriented, adaptable and flexible enough to adjust to new knowledge, new technological capabilities, and future international legal developments. The need for legal clarity also determined the choice of what obligations should be included in the text law, and in what detail, and what can be addressed instead through governmental regulations.
Of course, the actual 'living' space law is shaped not only by the space act to be enacted by the Parliament, but also - importantly - by governmental regulations, conditions in the individual licences, principles of good administration, and self-regulation and contracts. The relevant legal considerations are clarified and expanded upon in the explanatory report 'Right into orbit',(12)Rett i bane: Utredning fra utvalg oppnevnt av Nærings- og fiskeridepartementet til å foreslå ny lov om aktivitet i verdensrommet, available at regjeringen.no. which is one of traveaux preparatoire for the forthcoming space law and will be relevant for the interpretation of this law.
The further discussion is as follows. First, the international legal framework is briefly presented in section 2. The scope of the proposed space law and central definitions are discussed in section 3. The requirements and conditions attached to the permit for space activities are examined in section 4. Last but not the least, section 5 contains an overview of the proposal concerning operator's liability and the duty to obtain insurance. Section 6 concludes.
The proposed legal text also contains chapters on supervision, enforcement, investigation, and transition provisions, which are not discussed in this article.