4 The requirement to obtain a permit and the obligations of the operator
The space law currently in force(1)Cited in fn. 4 above. laconically provides that launching of objects into outer space is prohibited without a permit, and that the competent authorities may attach conditions to this permit. The law itself does not specify which requirements or criteria must be met to acquire the permit. Generally, this is within the authorities' room for discretion when deciding to grant or reject an application for permit.
The proposed legal text also requires that operators must obtain a permit to be allowed to carry out space activities, but it is considerably more specific with regard to the requirements to be met.(2)Article 4 of the proposed legal text. Both the law in force and the proposed legal text implement the requirements of Article VI of the Outer Space Treaty, which provides that the 'appropriate State' must authorize (and continuously supervise) national non-governmental space activities. Conducting space activities covered by the law without a permit may result in criminal liability.(3)Norwegian Criminal Law, Section 167. However, by contrast with the space law in force, the proposed legal text contains provisions detailing out the requirements and conditions, which must be met by the person seeking the authorization. Although the responsible authority will retain a significant degree of discretion under the new law (including the right to reject an application, which meets the necessary requirements), it must comply with principles of good administration and, as the case may be, EEA law prohibition of discrimination and internal market rules.
To obtain a permit, the operator must meet certain requirements and accept conditions, which the competent authority deems necessary to attach to the permit. The goal of such requirements and conditions is to prevent accidents and damage arising from lack of safety precautions, and minimize the risks associated with inherently ultra-hazardous space activities. It is outside the ambition of this article to provide a detailed overview of the proposed legal text and the committee's position, but the requirements may be summed up as follows:
Firstly, the operator itself - i.e. the person or entity involved with space activities - must meet certain requirements relating to its competence and resources to conduct space activities in a reasonable and safe manner. Article 5 of the proposed legal text entitled 'Conditions for licence' envisages that the responsible ministry: "may grant a licence to conduct space activities if the operator meets the following requirements: (a) The operator has the necessary expertise to operate space activities in a responsible manner, has necessary financial resources to conduct space activities, and the activity is insured in accordance with [A.P. this law - discussed in section 5 below]."(4)Author’s translation.
As space activities vary greatly in terms of their characteristics, the hazards they represent, and the competences, which are required, the requirements will be construed differently depending on the peculiarities of the space activity in question.
Secondly, the proposed legal text places requirements on the manner in which the space activity is conducted. Article 5 (b) provides that "the space activity is carried out in a responsible manner, without unnecessary or disproportionate consequences to the environment on earth or in outer space." The obligations of the operator with regard to responsible and safe space activities and the prevention of space debris are set out in detail in chapter 4 of the proposed legal text. The operator must document that these requirements are met when applying for the permit. One of the very pressing global concerns with regard to the launch of space objects is space debris. It is, therefore, crucial that the space law contributes to the minimization of space debris, if zero debris is not yet technologically possible. With regard to space debris prevention, the committee proposed a best practices approach in light of international guidelines and standards.(5)Right into orbit (fn. 13 above). The proposed legal text seeks a flexible approach allowing applicable requirements to evolve in line with technological developments.
Thirdly, the draft space law requires that provisions of other relevant legislative acts are also met by the operator.(6)Article 5(c) of proposed legal text. Importantly, the operator must comply with rules on export control,(7)Act relating to Control of the Export of Strategic Goods, Services, Technology, etc (eksportkontrolloven) # 93 adopted on 18 December 1987. as well as with the International Telecommunications Union (ITU) rules on allocation of frequencies. With regard to the latter, a frequency is indispensable for communications with the satellite or another space object, and must be obtained by the operator through the Norwegian or foreign communications authority which grants frequencies in line with ITU rules.(8)In Norway, this is the Norwegian Communications Authority (Nkom).
Last but not the least, the space activity may not run counter to Norway's security or foreign policy interests.(9)Article 5(d) of the proposed legal text.
It should be noted that Article 6 of the proposed legal text provides that the competent ministry can also impose conditions on the permit that go beyond the requirements of the law. This approach is generally in line with general Norwegian public law on licences and permits and is subject to principles of good administration and prohibition on the authorities to abuse power.
The draft only envisages one - general - type of permit, which includes all types of space activities regulated by the law. The committee deemed it feasible to detail out the types of permits (licenses) in the governmental regulations, rather than include a law provision with different types of licenses, as is done by some countries.(10)Some States have enacted laws specifying different types of licences and, correspondingly, different requirements applicable to such licences.