3 Scope of the proposed space law
An important part of the work on the new law was to determine the structure and scope of the law, as well as to elaborate on the relevant definitions to be applied in the law. The proposed legal text is considerably longer than the Norwegian space law currently in force, because it has a broader reach, both in substantive and geographic terms.(1)The proposed legal text contains eight chapters with 38 paragraphs in total. The law is proposed to regulate space activities.(2)Article 1 of the proposed legal the Norwegian text is available in Right into Orbit (fn. 13), p. 136. Importantly, the proposed legal text also defines space activities: these are activities related to launch, operation and return of space objects, and activities "substantially related to" launch, operation and return. Thus, the proposed legal text is generally aimed at tackling all activities related to a satellite's or other space object's lifetime, from launch to the ending of the operation. A generally formulated definition is, in the committee's view, necessary, because it may be difficult to draw a precise borderline and regulations need to adjust to current realities in the very dynamic space sector.(3)In any case, the proposed legal text does not seek to include into the notion of ‘space activities’ issues such as the regulation or recognition of property rights to natural resources in outer space, human spaceflight, downloading of data from satellites, remote sensing and other activities not related to the launch, operation and return of space objects. Thus, as with some other issues regulated by the law, it is important to leave some room for discretion to the competent authorities.
The committee decided not to propose a definition of 'outer space' or delimitation of 'outer space' in the national law. While the Outer Space Treaty indirectly defines outer space as 'including the Moon and other celestial bodies' (and the void between them), the international law is silent on the issue of the borderline between air and outer space. Most States have chosen to adopt a functional approach to the delimitation of air and outer space.(4)Denmark has enacted a 100-km limit in their national space laws. A recent launch by Sir Richard Branson and his team (Virgin Galactic) illustrated that also an altitude of 86 km could be sufficiently high, at least for ‘space tourists’. See also Peter Lødrup, Luftrett og romrett [air law and space law], Tidsskrift for rettsvitenskap, 1961, s. 561. Indeed, it seems unnecessary to adopt a legal provision determining where outer space starts for the purposes of national law, before more progress is made on this definition at the international level.
The focus of this work was on the need to establish a system of permits to which certain conditions and obligations are attached, to be supplemented by the internal safety routines of companies and their supervision and enforcement by the state. The proposed legal text requires the operator to obtain a permit for space activities conducted from "the Norwegian territory, from Norwegian vessels and aircrafts and by Norwegian nationals abroad".(5)Article 2 of the proposed legal text, Right into Orbit (fn. 13), p. 136. Thus, the proposed text does not just focus on space object launches from Andøya, but also regulates Norwegian companies and individuals engaged in space activities abroad.(6)Telenor’s satellites; also Norsat etc. This includes, importantly, space activities conducted from another State's territory and is primarily intended to meet the requirements of Article VI of the Outer Space Treaty. The proposed legal text also includes space activities from Norwegian vessels and aircrafts, thereby ensuring that Norway regulates all national activities outside its territory. It is also important to include vessels and aircrafts in order to reflect the provisions on launching a State's 'facility' in conformity with Article VII of the Outer Space Treaty and the Liability Convention. The proposed legal text also envisages that, within the limits of international law, the responsible ministry may extend the application of this Act to foreign vessels or facilities outside of Norwegian territory.(7)See Pozdnakova (fn. 32) for the discussion of this issue.
The proposed legal text includes a definition of a 'space object', which largely corresponds to treaty definitions: any object or part of an object used in space activities.(8)Article 3 of the proposed legal text. Activities involving a space object are regulated in a number of the proposed legal text's provisions. With regard to the requirements on transferring a space object to another operator abroad, this requires consent by the competent ministry and may also require the conclusion of an agreement with the relevant State.(9)Article 8 of the proposed legal text. Chapter 3 of the proposal envisages registration of an object launched into outer space in line with the requirements of the Registration Convention. Importantly, the damage caused by a space object is subject to liability provisions of the proposed law, as discussed further in section 5.
A central notion used throughout the legal text is 'operator': it is a subject of rights and obligations in the law and is defined as "anyone who carries out space activities".(10)Art. 3 of the proposed legal text. The 'operator' may be the permit-holder under the law, but regardless of whether or not the permit-holder, anyone who actually conducts space activities must comply with the requirements and obligations set out in the law.(11)Comments to the proposed legal text, Right into orbit (fn. 13), p. 136. By contrast to a 'space object', which is defined (or, rather, described) in the international space law, the notion of 'operator' is not laid down in the treaties. Danish and Finnish space laws also use corresponding notions in relation to "operator", which appear to be generally used in practice. The notion of the 'operator' does raise a number of important concerns and ambiguities which deserve further attention.
It should be noted that the proposed draft does not expressly envisage exceptions from permit requirements for some sectors or types of operators directly in the proposed law (for example, for the Military & Defence sector or for the Education and Research sector). If exceptions are deemed necessary, the committee proposed that they can be laid down in regulations as deemed adequate.