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

54 EXPANDING GLOBAL LAUNCH SERVICESrespect to all other commercial satellites, e.g., remotesensingsatellites, remained entirely with the StateDepartment.However, as a result of the allegations made during1997 and 1998 of improper transfers of technology byHughes and Loral to the Chinese in connection with theattempted launches of certain of their respectivesatellites in China, and the subsequent investigation andreport by a special committee of the House ofRepresentatives (the Cox Committee Report),legislation was enacted in the Fall of 1998 transferringexport license jurisdiction with respect to commercialcommunications satellites back to the State Department,effective March 15, 1999. In addition, the legislationmandated increased controls with respect to suchexports, but specifically exempted from these increasedcontrols exports to member countries of NATO andtheir nationals and to non-NATO “major allies” of theUnited States (e.g., Japan, Australia, Israel) and theirnationals. The State Department was directed toproduce amendments to the ITARs implementing thislegislation. However, in doing so, the Departmentcreated a national security exception to the NATO andnon-NATO major allies specific statutory exception.This further exception, in turn, caused considerablecontroversy among the NATO allies as to its meaningand purpose and has yet to be satisfactorily resolved.In addition, considerable controversy resulted from theinclusion of a specific paragraph imposing StateDepartment licensing authority over exports oftechnical data and associated services to foreigninsurers and their brokers. This should have come as nosurprise given the fact that the export of such data andservices (i.e., technical assistance) with respect to anysatellite has always remained under the jurisdiction ofthe State Department (with the limited “form, fit andfunction” exception).2525 While as a general matter only a limited amount of spacecrafttechnical data (e.g., spacecraft mass, center of gravity) needs tobe transferred to the launch vehicle operator, the insurers beingasked to insure the risks of satellite failure need considerablymore information and data as to the satellite in order to properlyassess the risks in deciding whether to write the insurance and,if so, under what terms and conditions including premiumamount.Several bills currently awaiting final action in thisCongress contains provisions addressing this matterincluding, specifically, the issue of the StateDepartment’s exception to the statutory NATOexception. These proposed provisions, however, tend tosupport the State Department’s position. All of this haslead to considerable uncertainty as to U.S. export policyregarding commercial communications satellites,including exports for foreign launches of U.S.-builtsatellites or components. In essence, the “nationalsecurity” exception introduced by the StateDepartment’s implementing regulation recognizesexpressly, that which is implicit in the role ofgovernment, and, in the case of the United States, therole of the President; namely the duty to protect thenational security of the state and its people. Thedifficulty arises however when trying to determine whatconsiderations are encompassed by the phrase “nationalsecurity” and whether these include considerations oftrade and protection of the U.S. economy.26Conclusions andRecommendationsPossible involvement of internationalintergovernmental organizations (“IGOs”)in space activitiesI would note only that the major IGOs, aside from theUnited Nations, involved in space activities, e.g., theITU, ICAO and INTELSAT, were in existence beforethe entry into force of the 1967 Outer Space Treaty.26 For example, as part of the notification and certificationwhich the State Department is required by the AECA to give toCongress before it grants a license for the export of MunitionsList “defense articles or defense services” (i.e., technology,technical data, or technical assistance and services therefor)having a value of $50 million or more, is that the Department isprepared to license the export of the subject matter “havingtaken into account political, military, economic, human rights,and arms control considerations.” See, e.g., Notificationaddressed to the Speaker of the House of Representativesconcerning “the export of one Telstar commercialcommunications satellites to French Guiana for launch intoouter space”, 64 Federal Register 44571 (August 16, 1999).(Emphasis added).