A comprehensive first look at Denmark’s domestic space law
by Michael Listner
|Similar to other domestic space laws, the Act is an extension of Denmark’s Space Policy, is constructed to address Danish state space activities, creates a private interest in outer space activities for its citizens, and harmonizes those future private space activities with Denmark’s obligations under international law.|
The Act applies to outer space activities performed by the Danish government, private citizens of Denmark,7 and any installations or vessels performing outer space activities.8 The Act vests the Education and Science Minister (the Minister)9 with primary authority to create authorize and oversee outer space activities and create regulations to administer those activities. The Minister also has jurisdiction over civilian activities that are not space activities as defined by the Act, which occur below outer space.10 Essentially, the Ministry of Education and Science performs a function similar to the FAA’s Office of Commercial Space Transportation in the United States, and the Minister performs a similar function of the Secretary of Transportation under Title 51, Chapter 509 of US law.
The Act lays out the following definitions in Section 4:
The Act’s definition of “space object” is not identical to the definition found in the Registration Convention and the Liability Convention, as the Act’s definition also includes objects that have yet to be launched.12 This definition is more inclusive than the international definition. Section 4 also creates a spatial demarcation in its definition of “outer space” and marks outer space as being located more than 100 kilometers (62 miles) above sea level, but it appears this demarcation is for purposes of the Act and not intended as an international norm. Denmark has weighed in on the issue of the Definition and Delimitation of Outer Space as part of the Working Group on the Legal Subcommittee for COPUOS. Denmark’s position since December 8, 2010, acknowledges the importance of the subject but does not consider it necessary to define outer space and/or delimit airspace and outer space at present.13 Whether the Act’s domestic spatial delimitation of “outer space” will affect Denmark’s position on an international or a European norm for delimitation remains to be seen.
Section 6 of the Act creates the fundamental requirements for private individuals to receive approval for a space activity, which is comparative to the requirements to receive a launch license found in Title 51, Chapter 509 of the US Code and regulations related to launch licenses found in US Code of Federal Regulations 14 CFR §§ 415.51–415.63. Space activities may be performed by Danish citizens only with prior approval of the Minister of Education and Science (the Minister).14 To acquire approval from the Minister, an operator must show:
The operator of the space object must also certify to the Minister the proposed space activity and technology involved complies with Danish export controls;16 the operator is responsible to ensure the information provided to the Minister under Section 6 is accurate.17
Chapter 4 of the Act requires an operator of space object to immediately report any changed circumstances affecting any of the factors for approval in Section 6. In other words, if information provided to the Minster per Section 6 changes during the approval process or after an approval has been granted, the operator must immediately report the change to the Minister.18 The Minister reserves the right to revoke approval for the space activity if the conditions in Section 6 change or have been breached by the operator. Once a space activity’s approval is revoked, the Minister may require the operator to transfer control of the space object and/or transfer the space activity to another operator or terminate the space activity.19
Section 10 of the Act has four specific mandates vis-à-vis registration:20
Section 11 of the Act22 imposes third-party liability on an operator of a space object and requires the operator to compensate persons or property on the ground as well as aircraft in flight that are damaged by a space object owned by a private operator.23 The effect of this mandate appears to create a strict liability regime similar to the strict liability standard created by Article II of the Liability Convention.24 If the space object causes damage not covered by Section 11, paragraph 1, the operator’s liability will be determined by existing Danish law.25 The liability of an operator to a third-party may be reduced or nullified if the damage was the result of gross-negligence of the aggrieved party.26 This is similar in principle to the Liability Convention, where a state may be exonerated from the Article II strict liability standard if the state can prove the damage was caused by the gross negligence of the state or one its citizens.27 The Act also allows the Minister to promulgate rules to limit an operator’s liability.28
|Section 4 also creates a spatial demarcation in its definition of “outer space” and marks outer space as being located more than 100 kilometers (62 miles) above sea level, but it appears this demarcation is for purposes of the Act and not intended as an international norm.|
Section 11 of the Act gives the Minister discretion to seek indemnification for claims against Denmark under the Liability Convention for an operator’s space activities and/or liability under Section 11, paragraphs 1–2 to the extent of Denmark’s obligations for damages under the Liability Convention. The wording of this portion of the Act suggests the Minister would seek indemnification for not only damage caused by a space object under Article II but also for apportioned damage caused under Article III. The Act also grants the Minister discretion to create rules that limit an operator’s responsibility for indemnification to Denmark.29
Consistent with the Act’s approval authority in Section 5 and 6, the Minister is required to demand an operator of space object provide proof of insurance or similar surety to cover its potential liability under Section 11, Paragraph 1. If the operator is insured, the insurer is required to immediately address any claims proffered; if Denmark seeks indemnification of the operator per Section 11, paragraph 2, it must do so to the extent it has recourse.30 Government agencies performing space activities are exempt from the mandatory insurance requirement of Section 13.31 However, liability for government space objects are still subject to Denmark’s obligations under the Liability Convention, including strict liability under Article II and apportioned fault liability under Article III. The Act also grants the Minister discretion to implement requisite insurance/surety amounts consistent with Section 13, paragraph 1.32
When suit is brought against the insurer of a space operator, the insured operator must be summoned to any hearing regarding the action by the insurer per the rules of summoning witnesses under Denmark’s Administration of Justice Act.33 An operator who is summoned by the insurer may request the court to allow it to intervene as a party; the insurer may join the operator as a party with regards to settlement and/or a judgment, which appears to create joint and several liability between the operator and the insurer.34 This suggests under Denmark’s civil court rules, an insured party is not automatically a party to suit defended by an insurer. Rather, the party (in this case the operator) is relegated to the standing of a third-party and must request the court to intervene. The Act allows the insurer to treat the operator as de facto third-party and join the operator not a defendant for the substantive part of the suit, but allows the insurer to join the operator for settlement and judgment.
Section 15 permits the transfer of space objects to another owner or operator with the permission of the Minister.35 The Minister must give prior approval for the transfer of the space object when the transfer is to an owner in another state or to another state; the succeeding state or state under whose jurisdiction the new operator resides must assume liability for the space object per the Liability Convention.36 Section 15, paragraph 2 may not totally abrogate Denmark’s international liability as Denmark would still be considered the launching state after the transfer to another state or to an operator under the jurisdiction of another state. An agreement with the succeeding state may require Denmark be indemnified by the succeeding state for any liability incurred under Article II and Article III of the Liability Convention that might arise from the operation of the transferred space object by the new owner and/or state.
The Act authorizes the Minister to oversee space activities and create and administer regulations to that end to ensure compliance with the Act.37 An owner and operator of a space object must submit forthwith any information requested by the Minister in fulfillment of the duties required by the Act.38 The Minister or a subordinate assigned by the Minster may subpoena any information required from the owner or operator of a space object without the need to obtain a court order.39 The Minister may exempt state owners or operators from the approval requirement of Section 5 and Section 6 as well as the oversight provisions of Section 16.40
The Minister is authorized to create rules for space activities pertaining to the use of languages other than Danish and the use of digital communications, including certain information technology requirements, the use of special digital formats, digital signatures, etc.41 The Minister may create rules to implement fees to cover the Education and Research Ministry’s costs for application processing under Chapter 3, modification and revocation under Chapter 4, the transfer of space objects and space activities under Chapter 7, and space activity oversight per §§ 16 and 17 of the Act.42
|The Folketingets designed and implemented an impressive domestic space law that is reflective of Denmark’s societal norms and appears will effectively address Denmark’s current and future private space activities.|
The Minister may delegate responsibilities of the Education and Science Ministry under the Act to agencies subordinate to the Ministry or to other government agencies.43 The Minister also appears to be allowed to promulgate rules for other state agencies who exercise power delegated to it by Education and Science Ministry.44 The Minister and/or those agencies or individuals who are acting under the authority of the Education and Science Ministry may also grant appeals to decisions regarding the refusal to grant approval for a space activity or for revoking approval for a space activity, as well as a decision not to grant an appeal.45 This suggests the Act does not create an automatic right to appeal but does allow an operator who had its approval denied or revoked not only to petition the Minister’s decision deny or revoke the approval but also the decision not to allow an appeal.
Chapter 9 of the Act imposes penalties for violations by non-state operators.46 The approach of incorporating penalties diverges from the scheme taken by US domestic space law as penalties are not currently part of Title 51, Chapter 509.47 US commercial operators may view the use of penalties as excessive, but their inclusion in the Act reflects the cultural standards of Denmark’s realm and the importance to which they hold the privileges created by the Act. The Act address violations of Sections 5; 8; 9 paragraph 2, point 2.; Section 15, paragraph 1; or Section 16 paragraph 2, and the Act’s non-compliance of insurance/security requirements. Non-compliance of these Sections of the Act is punishable by fine or imprisonment for up to four months, unless a higher punishment is required under Danish law.48 Willful violations of the above-mentioned Sections of the Act may increase the term of imprisonment up to two years, especially in the case where the violates result in injury or death, exposes persons to danger (reckless endangerment), or where the infringements are systematic.49 The Act authorizes the a fine or a four-month prison sentence for violations of registration requirements under Section 10 of the Act.50
The Folketingets designed and implemented an impressive domestic space law that is reflective of Denmark’s societal norms and appears will effectively address Denmark’s current and future private space activities. To what extent its industry responds and whether foreign investment will be welcome remains to be seen. It is tempting to judge the Act based on the domestic space laws of other space-faring countries, but the Act created by the Folketingets is tailored to meet Denmark’s domestic needs and to harmonize with its international obligations and should be viewed through that lens. Accordingly, Denmark’s domestic space law deserves respect for what it is: a noteworthy contribution to the growing jurisprudence of outer space.