Keywords

1 Introduction

This chapter studies export control in space activities. In view of the present state of the exploration and use of outer space,Footnote 1 “space activities” are often defined as (i) the launch of space objects through outer space, (ii) the operation of space objects in outer space, and (iii) the reentry of space objects to Earth from outer space.Footnote 2 Prior to “space activities” in this sense, transnational transfer of goods (e.g., satellites) and technologies for space activities are carried out, for only a small number of countries have rockets (space launch vehicles) and launch sites for satellites as well as the capabilities to manufacture spacecraft.Footnote 3

Thus, international and national export control laws and regulations are studied according to the following order: (i) transnational transfer of space-related goods and technologies except that of rockets (on the earth), (ii) launch and reentry of space objects (between the earth and outer space), and (iii) on-orbit operations of space objects (in outer space). As Chap. 13 of this book deals with the export control regulations concerning missiles, which are almost identical to those relating to space launch vehicles, the concrete export control rules found in the MTCR will not be referred to in this chapter. Neither will be the transfer of the satellite-based data, as it is irrelevant from the export control point of view.

“Space object”Footnote 4 is the standard term used in the United Nations (UN) treaties on outer space, and means rockets, satellites and other probes as well as their parts and components. While this chapter uses “space object” as a general term, “spacecraft”, “satellites”, “payloads”, etc. are also used as appropriate, for individual international frameworks and national laws use these terms.

2 International Frameworks for the Transfer of Space Objects

2.1 Export Control Systems of the Space Launch Vehicles and Related Items

2.1.1 Missile Technology Control Regime

There are no legally-binding instruments to regulate the transnational transfer of space launch vehicles (SLVs). Due to the technological similarity between SLVs and ballistic missiles, international transfer of the SLVs is subject to the legally non-binding export control framework of like-minded countries, or Missile Technology Control Regime (MTCR ) established in 1987. Parts and component parts of SLVs as well as relevant technologies thereof which are outside the control by MTCR are regulated by the Wassenaar Arrangement . (The detailed exploration of the MTCR is found in Chap. 13 of this book.)

2.1.2 Wassenaar Arrangement

The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (WA ) was established in 1996 to prevent destabilizing accumulations of conventional weapons through enhancing transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies.Footnote 5 Different from the MTCR, in case of the WA, it is the sole responsibility and national discretion of an each State to decide transfer or deny transfer of any listed items of the WA.Footnote 6 Such difference can be explained by the fact that the WA is not aiming at the non-proliferation of Weapons of Mass Destruction (WMD ), and any State is entitled to obtain state-of-the-art dual-use items and arms to defend itself pursuant to Art. 51 of the UN Charter.Footnote 7

Controlled goods, equipment, software and technologies in relation to space activities are specified in the List of Dual-Use Goods and Technologies comprising Category 1 to Category 9 items,Footnote 8 the Sensitive List and the Very Sensitive List, and also in the Munitions List.Footnote 9 Liquid, solid and hybrid rocket propulsion systems above a certain specifications specified especially in Category 9 (Aerospace and Propulsion),Footnote 10 in the Sensitive ListFootnote 11 and the Very Sensitive ListFootnote 12 as well as in the Munitions ListFootnote 13 are subject to the export control through national laws.

2.2 Export Control Systems of the Satellites and Related Items: WA

There are no international rules and frameworks except the WA relating to space objects other than SLVs. International transfer of satellites, other space probes and relevant technologies thereof are regulated by the WA either as “spacecraft”Footnote 14 (Categories 7 and 9), “spacecraft bus”Footnote 15 (category 9), “spacecraft payload”Footnote 16 (Category 9), or as items concerning “space-qualified”Footnote 17 found in Categories 3, 6, and 7 in the List of Dual-Use Goods and Technologies as well as in the Munitions List.

More concretely, specified in the List of the Dual-Use Goods and Technologies are space-qualified items such as solid-state detectors beyond a certain specifications,Footnote 18 space-qualified monospectral/multispectral imaging remote sensing sensors above a certain specificationsFootnote 19 in Category 6 (Sensors and “Lasers”),Footnote 20 items on Global Navigation Satellite Systems (GNSS) in Category 7 (Navigation and Avionics),Footnote 21 and items specially designed to control actively the dynamic response or distortion of “spacecraft” structures, etc. in Category 9 (Aerospace and Propulsion).Footnote 22 In the Munitions List, the following items are examples under the regulation: spacecraft and its components specially designed for military use such as electronic countermeasure and electronic counter-countermeasure equipment,Footnote 23 electronic systems or equipment, designed either for surveillance and monitoring of the electro-magnetic spectrum for military intelligence or security purposes or for counteracting such surveillance and monitoring,Footnote 24 digital demodulators specially designed for signals intelligence,Footnote 25 GNSS jamming equipment and specially designed components therefor,Footnote 26 spacecraft and its components specially designed or modified for military use,Footnote 27 and Directed Energy Weapon (DEW) systems such as laser systems, particle beam systems and high power radio-frequency systems.Footnote 28

The ninth Plenary meeting of the WA held in December 2003 approved that participating States would extend their national export control regulations to the non-listed dual-use items when the destination of such items are the State subject to a binding UN Security Council (UNSC) arms embargo, or any relevant regional arms embargo either legally binding on the exporting country concerned or in which it participates on a voluntary basis.Footnote 29 This is so-called “catch-all controls ” implemented by other export control regimes including the MTCR. However, due to its intrinsic nature already mentioned, this has been applicable in much more relaxing manners than other export control regimes including in that each Participating State will determine at domestic level its own definition of the term “military end-use”.Footnote 30

3 Regional and National Frameworks for the Transfer of Space Objects

In this section, the EU and US export control frameworks concerning space-related items are depicted in some depth as laws and regulations of the EU and the US is the most relevant in considering space export control.

3.1 EU Frameworks

Council Regulation (EC) No. 428/2009 of 5 May 2009 setting up of a Community regime for the control of exports, transfer, brokering and transit of dual-use items (hereinafter “The EU Export Control Regulation ”)Footnote 31 is the foundation as the legally-binding export control regulations for EU countries.Footnote 32 As “export” is defined as the transfer of goods, software and technology from EU countries to “a destination outside the European Community”,Footnote 33 it seems that launch of space objects is not included in export.

Authorization is required for the export of dual-use items listed in Annex I.Footnote 34 So is for a certain dual-use items not listed in Annex I;Footnote 35 this so-called catch-all controls is restricted in most cases against the risks contributing for disseminating WMDs and their delivery systems, but if the destination of the export is subject to arms embargo decided by the Council of the EU or the Organization for Security and Cooperation in Europe (OSCE) or imposed by a binding resolution by the UNSC, each State is required to carry out catch-all controls for military end-use.Footnote 36

Space related items are enumerated in Category 3 (Electronics), Category 6 (Sensors and Lasers), Category 7 (Navigation and Avionics) and Category 9 (Aerospace and Propulsion).Footnote 37 For instance, frequency synthesized signal generators with “space-qualified” atomic frequency standards (3A002),Footnote 38 “space-qualified”Footnote 39 solid-state optical detectors (6A002),Footnote 40 and receiving equipment for GNSS (7A105)Footnote 41 are among the controlled items used for SLVs and satellites. Examples of SLV-related items include SLVs (9A004), sounding rockets capable of a range of at least 300 km (9A104), liquid propellant rocket engines, systems or components thereof (9A105–9A106), solid propellant rocket engines (9A007, 9A107), production equipment for liquid and hybrid rocket propulsion systems and SLVs (9B115 and 9B116), and a certain technology for the use of SLVs (9E102).Footnote 42 The definition of “spacecraft” used in the EU Export Control Regulation is identical to that of the WA, which include a complete satellites (9A004), software specially designed or modified for the production of equipment for spacecraft (9D002).Footnote 43

The EU Export Control Regulation does not have re-export control system different from that of the US.Footnote 44 Also different from the US system, the EU Regulation does not apply to the supply of services or the transmission of technology involving cross-border movement of persons.Footnote 45

3.2 US Laws and Regulations

3.2.1 Two Lines of Export Control

Export of SLVs, satellites, parts and components thereof, as well as their technologies are subject to mainly two line of laws. One is the Arms Export Control Act (AECA )Footnote 46 and its regulations, or International Traffic in Arms Regulations (ITAR )Footnote 47 which contains the control list called the Munitions List (USML )Footnote 48 and the other is the Export Administration Act (EAA )Footnote 49 and its regulations Export Administration Regulations (EAR )Footnote 50 which contains the Commerce Control List (CCL ).Footnote 51 The former governs the transfer of the defense articles and services and the latter, dual-use items which could be used for contributing to WMDs, their delivery systems as well as for military end-use.

Among the space-related items and technologies, transfer of SLV-related items has been inherently most strictly dealt with by the Directorate of Defense Trade Controls (DDTC) of the Department of State (DOS) pursuant to MTCR regulations, which is duly reflected in the AECA/ITAR,Footnote 52 and it has been next to impossible to export a complete SLV. In contrast, strictness of the transnational transfer of satellites, its parts, components and related technologies has been changed over the times under the US export control policy. This reflects most explicitly by the change of the licensing authority, which was sometimes administered by the Bureau of Industry and Security (BIS) [formerly Bureau of Export Administration (BXA)] of the Department of Commerce (DOC) which grants a license considering both US economic interests and other national interests,Footnote 53 and other times, by the DOS/DDTC which grants a license when the export in question does not compromise the US national security.Footnote 54 This section therefore describes the changes of the export control systems of satellites since the last decade of the 20th century to understand the characteristics of the US space export control systems.

3.2.2 Last Decade of the 20th Century: Changes of the Applicable Laws and Regulations from ITAR/USML to EAR/CCL and Again to ITAR/USML

Three Memorandum of Agreements between the US and China on commercial satellite launches from 1988–1989Footnote 55 enabled to launch US-made communications satellites from the Chinese territory.Footnote 56 Due to the gradual changes of the licensing jurisdiction for commercial satellites from the DOS to the DOC in the early 1990’s to 1996, satellite export control to China was substantially liberalized.Footnote 57 Yet, the 1992 regulatory changes did not transfer all commercial communications satellites to the EAR/CCL, and satellites with (i) anti-jam capability, (ii) antennas with certain characteristics, (iii) intersatellite data relay links, (iv) space-borne baseband processing equipment, (v) cryptographic items controlled under the USML, (vi) radiation-hardened devices, (vii) certain on-orbit propulsion systems, (viii) certain attitude control and determination systems, and (ix) permanent orbit transfer engines (i.e. kick motors) remained under the ITAR/USML.Footnote 58 Such nine restrictions were formally removed and transferred to the licensing procedures pursuant to the EAR/CCL in October 1996.Footnote 59 At the same time, the licensing jurisdiction of technical assistance agreement (TAA ) which enables to provide technical data on commercial communications satellites to foreign launch providers, was also transferred to the EAR/CCL.Footnote 60

However, The US Congress found in 1999 that the illegally transmitted information to Chinese launch providers on the satellite-rocket interface data by the US satellite manufacturers through the launch accidents investigationsFootnote 61 had improved Chinese missile capabilities. That Congress report resulted in a drastic change of the US export control policy. The licensing authority of all satellites was returned to the DOS/DDTC in March 1999,Footnote 62 and that situation lasted for the next 15 years.

3.2.3 US Export Control Reform: Back to the EAR/CCL

The latest export control reform started in August 2008, which delegated the Secretary of Defense and Secretary of State in October 2008 to carry out an assessment of the national security risks in case of the removal of the satellites, related components and technologies from the USML.Footnote 63 Based on its results and recommendations, the export control regulations provided for in the National Defense Authorization Act (NDAA ) for Fiscal Year 1999Footnote 64 was repealed by the NDAA for Fiscal Year 2013.Footnote 65 It was decided that the licensing jurisdiction on commercial satellites would again be transferred to the DOC/BIS. The 2013 NDAA, however, specified that the prohibition of the export of satellites, etc. would be maintained to China, the DPRK, and any country that is a state sponsor of terrorism unless the President waives the prohibition on a case-by-case basis.Footnote 66

On 24 May 2013, DOS/DDTC published a proposed amendment of the contents of the USML Category XV (Spacecraft Systems and Associated Equipment);Footnote 67 so did the DOC/BIS concerning the EAR/CCL on the same day.Footnote 68 Following the public comments and internal consultations, both the DOS/DDTC and the DOC/BIS published a respective interim final rule on 13 May 2014, the former as the revision of ITAR/USML Category XV,Footnote 69 and the latter as the revision to the EAR/CCL concerning spacecraft systems and related items.Footnote 70 Somewhat controversial and unsettled items such as certain remote sensing satellites and manned space sub-orbital vehicles were continuously discussedFootnote 71 until the final rules were published on 13 July 2015.Footnote 72 Interim final rules became effective as of 10 November 2014 for most of the proposed items, and “[C]larifications and Corrections” to the EAR (so-called “clean-up rules”) was published in which clearer definitions and further explanations were given for certain rules which had previously been criticized as unclear.Footnote 73

Items finally transferred to the EAR/CCL are specified below:

  1. 1.

    Communication satellites that do not contain classified components or capability;

  2. 2.

    Remote sensing satellites with performance parameters below certain threshold;

  3. 3.

    Systems, subsystems, parts and components associated with these satellites and with performance parameters below certain threshold of (1) and (2); and

  4. 4.

    radiation-hardened microelectronic microcircuits.Footnote 74

The decision was made based not on the “article end-use”, but on the “article capability” to protect critical technologies to the US national security.Footnote 75 Therefore, a satellite with the diameter of antenna greater than 25 mFootnote 76 or space-qualified optics with a largest lateral clear aperture dimension greater than 0.35 m remained on the USML even if those were for commercial use or used by a university satellite.Footnote 77 Likewise, while sub-orbital vehicles for space tourism are definitely for commercial use, its capability as a potential offensive weapon to attack the ground from space led to the conclusion that this could not be transferred to the DOC/BIS jurisdiction to the dissatisfaction of the space industry.Footnote 78

Spacecraft systems including satellites that remain on the USML are equipped with better capabilities than a certain threshold regardless of their nature or purposes. A small number of the examples are: (i) spacecraft to automatically track space objects in real-time using imaging, infrared, radar, or laser systems; (ii) anti-satellite space vehicles; (iii) space-to-ground weapons system; (iv) attitude determination and control systems without using ground location points, better than or equal to five meters from low earth orbit (LEO); and (v) ground equipment for military spacecraft.Footnote 79

As the 2013 NDAA specified, China remains included in Country Group D: 5. Countries in D: 5 Group are under the arms embargoes through the decision of the DOS, and even satellites under the DOC jurisdiction could not be exported to those countries unless the presidential waiver is granted. As of March 2017, 20 countries are in this category.Footnote 80

Different from SLVs for which the internationally standardized export control measures exist, the change of the texts and operation of the US national laws concerning spacecraft directly affects the wide range of space activities as the US champions the all aspects of space activities.

4 Is the Launch of a Satellite Export?

No reference is made as to whether the launch is export and/or the reentry import in the international law instruments. That there is no rule on the definition and delimitation of outer space will not certainly help answering this question.Footnote 81

US laws clearly answer this question, however. Prior to the 1984 Commercial Space Launch Act (CSLA),Footnote 82 the launch of SLVs and satellites was regarded as an export pursuant to the ITAR.Footnote 83 With the advice by the Senate Committee on Commerce, Science and Transportation, the CSLA provided that “[a] launch vehicle or payload shall not, by reason of the launching of such vehicle or payload, be considered an export for purposes of any law controlling exports.”Footnote 84 Note that “payload” means in the US legislation that “an object that a person undertakes to place in outer space by means of a launch vehicle or reentry vehicle”,Footnote 85 which is different from the definition of “spacecraft payload” in the WA.Footnote 86 Currently that reentry not considered an import is added in the US legislation.Footnote 87 Further as “launch” is defined to place or try to place a launch vehicle or reentry vehicle and any payload or human being from Earth to (i) in a suborbital trajectory, (ii) in Earth orbit in outer space, or (iii) otherwise in outer space,Footnote 88 the issue of the delimitation of outer space and air space for the purpose of export control is appropriately addressed.

As the Department of Transportation became responsible for the launch (and later also the reentry) for space objects, the ITAR has been amended since 1984 to provide that “[a] launch vehicle or payload shall not, by reason of the launching of such vehicle, be considered an export for purposes of this subchapter.”Footnote 89

Likewise, as already mentioned in 3.1 of this chapter, it seems that launch is not included in export by the EU Export Control Regulation, and perhaps, reentry would also be excluded from import.

As for Japan, as with the US and the EU countries, “export” does not seem to include the launch of space objects. “Export” is defined as transferring internal goods to any foreign States.Footnote 90 “Internal goods” means (i) goods (not foreign goods) situated in Japan and (ii) goods exploited on high seas by a ship of Japan’s nationality.Footnote 91 As the area of “foreign States” is defined as “the area outside Japan”,Footnote 92 at first glance, the launch of space objects could have been deemed as export. However, outer space is not included in the governmental notification of the places of destination for exports while the Antarctica and high seas are explicitly set forth,Footnote 93 it is now construed that the launch is not an export, and as corollary, the reentry would not probably be considered an import.Footnote 94

5 Conclusion, or Remaining Issues: On-Orbit Transfer of Satellites

On-orbit transfer of ownership and operation of satellites has been an established phenomenon for almost two decades. This is deemed an export pursuant to the US ITAR as this provides that “[t]ransferring registration, control or ownership to a foreign person of any aircraft, vessel, or satellite covered by the US Munitions List, whether in the United States or abroad”.Footnote 95 As for the US satellites transferred to the EAR/CCL, as “[a]ll US origin items wherever located”Footnote 96 are “subject to EAR”,Footnote 97 as long as such items are to be transferred to a foreign national, it would be included in the export.Footnote 98 Therefore, all US satellites transferred to a foreign national shall be subject to US export control laws and regulations.

Finally, while it is not an export control regulation, mention should be made on the interesting example applied in the French Space Operations Act (FSOA). This Act provides that: (i) the transfer to a third party of the control of a space object (usually satellites) which has been authorized by the FSOA shall be subject to prior authorization; and (ii) any French operator intending to take the control of a space object whose launching or control has not been authorized under the FSOA shall obtain a prior authorization from the administrative authority.Footnote 99 The first case involves private transaction between French persons and from the French to a foreign national and the second case refers to get a control of satellite from foreign entity. This provision suggests the possibility of adequately supervising the on-orbit transaction of its nationals without directly using export control measures. As space exploration and use of outer space is unique in that States Parties to the Outer Space Treaty shall be directly responsible for its non-governmental entities,Footnote 100 authorization and supervision through national legislation is critical.

The least explored area of space export control is on-orbit transfer of ownership/control of space objects. Since increased transactions in this regard are found, the best way to address this should be studied both from the space law and export control law perspectives.