Abstract
Active debris removal (ADR), which is broadly defined as an on-orbit service consisting in of removing space debris into a graveyard orbit or to an Earth return trajectory, is considered as a Space Operation under the French Space Operations Act of 3 June 2008 (“Loi n° 2008 -518 du 3 juin 2008 relatives aux opérations Spatiales” published in the French official gazette (JORF) on the 4th of June 2008.) (herein FSOA) which came into force on 10 December 2010.
As a preliminary remark, this legislation has been subject to a thorough analysis by Bernard Schmidt-Tedd and Isabelle Arnold (DLR) in a paper published under the ageis of ESPI, “The French Act relating to Space activities. From international law idealism to national industrial pragmatism” (ESPI Perspectives N° 11, August 2008. Available for free downloading from the ESPI website www.espi.or.at.).
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Notes
- 1.
An authorisation is the basic title awarded for each single operation (launch or commanding a space object) while a license may cover common terms and conditions applied to several operations carried out by the same operator and/or using the same space system.
The licence regime is introduced in FSOA’s Article 4, paragraph 3 as follows: “Licenses certifying for a determined time period that a space operator satisfies moral, financial and professional guarantees may be granted by the administrative authority competent for issuing authorizations. These licenses may also attest the compliance of the systems and procedures referred to in the first paragraph with the technical regulations set forth. Lastly, these licenses may be equivalent to authorizations for certain operations”.
- 2.
Council of State report, from its Reports and Studies Section named “For a legal policy for Space activities”, an appraisal study adopted by the General Assembly of the Council of State on 6 April 2006, published by La Documentation Française, 29–31 Quai Voltaire, www.ladocumentationfrancaise.fr, ISBN 2-11-0062005-3, see on the concept of Space Operator § 2.1.1.3.1, page 72 and 73.
- 3.
Ibid. footnote n° 4, Article 1.2° and 1.3° of the first draft legislation its Annexe 4, page 139.
- 4.
In French “contrat d’entreprise” or “contrat de louage de service” or “contrat de louage d’ouvrage d’ouvrage” as defined in the French Civil Code in article 1710 on “louage d’ouvrage” (contract for works) and specified on article 1779 et seq. “louage d’ouvrage et d’industrie” (contracts for works and services), including “louage de service” referred to in Art. 1779. 1° (service provision contract), “voituriers” (contracts of carriage by land and water) referred to in Art. 1779. 2° and “marchés et devis” (contracts for works and estimates) referred to in Art. 1779. 3°.
- 5.
Ibid foot note n°4, page 72. Alain Bénabet, “Contrat d’entreprise”, J.-Cl. Contrats-distribution, fasc. 425, n°5.
- 6.
Between Article 1240 on “fault liability” (old numbering, before 2016: Art. 1982) corresponding to FSOA’s article 13.2°, and Art. 1242 on “liability for the actions of things” (old numbering, before 2016: Art. 1984) corresponding to FSOA’s article 13.1°.
- 7.
Article 3 (Authorization for transferring command of Space objects or “Autorisation des transferts d’objets spatiaux”).
-
The transfer to a third party of the commanding of a Space object which has been authorized pursuant to the terms of the present act is subject to prior authorization from the administrative authority.
-
Pursuant to the provisions of paragraph 3 of Article 2, any French operator intending to take the control of a Space object whose launching or control has not been authorized under the present act shall obtain to this end a prior authorization from the administrative authority.
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- 8.
The legal regime of “negotiorum gestio”, is derived from “Roman law”, and was codified under the French Code Civil. It can be defined as a willful interference, by an intervener (or manager or in French “gérant”), in the management of business or private affairs of others made in the interest of the latter (the beneficiary or business master, or in French “maître de l’affaire”) and without the beneficiary’s knowledge or without opposition from him or her, obliging such beneficiary to honor (or accept) the commitments made by the intervener and to cover the latter’s costs, expenses or disbursements, provided that the management was useful.
This “negotiorum gestio” situation may arise when somebody, without express contract or mandate, ensure protection of property and human safety of others, for instance on firefighting, victim’s aid or any rescue but also to prevent ordinary material damage as fixing water leaks, or initiating conservative repairs or protection shields against hazards.
- 9.
The French Administrative Law, provides a similar framework than negotiorum gestio on behalf of “occasional or volunteer contributors to a public service’s mission”. Such public service’s initiatives, also consists in property’s protection, human safety of others, but also of general interest services provisions, such as public works in organizing public celebration, sports, cultural or educational events, academic lectures… as services usually under the responsibility of civil servants or public officers.
Indeed, according to the well-established Council of State case-law such volunteer contributors to a public service’s mission, may be compensated for accident damage that may happen to them while accomplishing their general interest mission. They may also be reimbursed of their mission expenses. In addition, these private contributors may engage directly the State liability for damage caused to third parties during their voluntary mission of general interest.
- 10.
Potential application of “negotiorum gestio” theory to ADR’s operation within a new dedicated international framework has been envisaged by Doctor Guoyu Wang in a well-founded paper named “Legal Challenges to On-orbit Servicing and a China’s perspective” presented on September 2017 during the International Astronautical Congress (IAC) held in Adelaide, Australia.
Dr. Guoyu Wang, Beijing Institute of technology(BIT), China. Co-author Mr. JIE YUAN, China. “Legal Challenges to On-orbit Servicing and a China’s perspective”, IAF/IISL/IAC 2018, Adelaide, Australia, on 25–29 September, n°IAC-17, E7,6-E3.5,4, x41849….
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Clerc, P. (2019). French Law Approach Around the Topic “Legal Implications/Aspects of Active Debris Removal (ADR”). In: Froehlich, A. (eds) Space Security and Legal Aspects of Active Debris Removal. Studies in Space Policy, vol 16. Springer, Cham. https://doi.org/10.1007/978-3-319-90338-5_11
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