Proceedings of the Workshop - United Nations Office for Outer ...

50 EXPANDING GLOBAL LAUNCH SERVICESCommentary PaperJohn B. GanttAttorney in Private Practice of SpacerelatedLaw16First, I want to congratulate Prof. Peter van Fenema onan excellent and thorough discussion paper for thissession of the workshop. His paper affords a broadoverview of the subject, identifies a number of issuesthat merit further study, and makes severalrecommendations, some of which I find myself insubstantial agreement.IntroductionMy comments are from the current perspective of thecommercial launch market and the commercial launchoperators whose launch activities intersect in somemanner the jurisdiction of the United States of America.For example, this intersection may occur either becausethe operators are U.S. citizens or are conducting theirlaunches from the territory of the United States, or thepayload or major components thereof must be exportedto a foreign launch site from the United States.The United States has developed a considerablebody of laws and regulations implementing, asmunicipal law, its obligations under the 1967 Treaty onthe Peaceful Uses of Outer Space (“the Outer SpaceTreaty”) and the 1972 Liability Convention. In the caseof commercial launches, these consist primarily of theCommercial Space Launch Act of 1984, as amended,(“the CSLA”)17 and the regulations issued pursuant tothe CSLA by the Department of Transportation,Federal Aviation Administration’s Office of theAssociate Administrator for Space Transportation.18 Inaddition, the U.S. State Department maintains a registryfor purposes of compliance with the U.S. obligationsunder the Registration Convention. However, it shouldbe noted that this national registry is not sufficient forthe purposes of filing liens and security interests (i.e.,notification to the world of creditors’ rights) pertainingto commercial spacecraft or their components. This isa major deficiency in present U.S. municipal law aswell as private international law, given the internationalnature of orbiting spacecraft. Thus, to the extent thegood offices of COPUOS can be lent to the effortspresently underway (e.g., by UNIDROIT) to developharmonious practices in this regard among nations, itshould certainly be welcomed.In addition, the United States has recently enactedmajor legislation (and has further proposed changesunder active consideration by the Congress) concerningthe matter of export licenses in the case of U.S.spacecraft, components, and technology. These havesubstantially altered the situation of obtaining exportlicenses with respect to commercial communicationssatellites, and threatens to cause delays with respect tothe contracting for and launch of such satellites.Also, some recent business developments suggestthere may be a need to re-examine global launchforecasts, particularly as they apply to launches offuture (e.g., second generation) low earth orbit (“LEO”)communications satellites. (Subsequent to giving myWorkshop presentation, IRIDIUM has been placed inbankruptcy by some of its bondholders as well asIridium, itself, and has sought the protection of thebankruptcy laws for the purposes of financial reorganization.Additionally, ICO has also recentlyexperienced difficulties of a financial nature.)1916 Partner, Mizrack & Gantt, Counsellors at Law, 601 13thStreet N.W., Suite 500 North, Washington D.C. 20005.Copyright, 1999. This document was prepared from the notesused in making my presentation at the workshop session.Should a reader have any questions regarding this commentary,I can also be reached by telephone (202-628-1717); fax (202-628-1919); or e-mail: johngantt@aol.com orjbgantt@ibm.net.1749 U.S.C. § 11001 etseq.1814 Code of Federal Regulations (“CFR”) Chapter III.19 See, e.g.. Iridium: Bom On A Beach But Lost In Space,Financial Times, August 20, 1999, at 16; Iridium Files forBankruptcy Protection After Its Bondholders Submit Petition,The Wall Street Journal, August 16, 1999, at A4; IridiumDefaults; ICO Struggles, Aviation Week & Space Technology,August 16, 1999, at 27.