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Violation or Misapplication of the Convention for the Establishment of a European Space Research Organisation (ESRO)
Published online by Cambridge University Press: 21 May 2009
Extract
The first launchings of satellites into orbit around the Earth by the USSR and the USA resulted in the establishment in 1962 of the European Space Research Organisation (ESRO) and the European Organisation for the Development and Construction of Space Vehicle Launchers (ELDO), both of which have their headquarters in Paris. The Conventions for the establishment of these organisations came into force in 1964 and are registered with the Secretary-General of the United Nations.
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References
1. ESRO Convention, Paris, 14 June 1962 (528 UNTS 39), Art. VIII, Special Projects: “If, outside the agreed programme but within the scope of the Organisation, one or more Member States engage in a project in connection with which the Council decides, by a two-thirds majoriity of all Member States, to make available the assitance of the Organisation or the use of its facilities, the resulting cost to the Organisation shall be refunded to the Organisation by the State or States concerned.”
2. ESA Convention, Paris 30 May 1975 (14 ILM 1975, 855), Art. XXI, 1: “This Convention shall enter into force when the following States, being members of the European Space Research Organisation or the European Organisation for the Development and Construction of Space Vehicle Launchers, have signed it and have deposited with the Government of France their instruments of ratification or acceptance: the Kingdom of Belgium, the Kingdom of Denmark, the French Republic, the Federal Republic of Germany, the Italian Republic, the Kingdom of the Netherlands, Spain, the Kingdom of Sweden, the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland. For any State ratifying, accepting or acceding to this Convention after its entry into force, the Convention shall become effective on the date of deposit of such State of its instrument of ratification, acceptance or accession.”
3. ESA Convention, Art. XXI, 2: “The Convention for the establishment of a European Space Research Organisation and the Convention of the establishment of a European Organisation for the Development and Construction of Space Vehicle Launchers shall terminate on the date of the entry into force of this Convention.”
4. Final Act of the Conference of Plenipotentiaries for the Establishment of a European Space Agency (signed on 30 May 1975). Resolution no. 1, Functioning “de facto” of the European Space Agency: “The Conference
Recommends that representatives of Member States in the ESRO and ELDO Councils should meet jointly as from the day following the date of signature of the Final Act, thus acting in anticipation of the establishment of the Council of the European Space Agency.
Recommends, in order to enable the Agency to function de facto as from the aforementioned day, that in the application of the Conventions for the establishment of ESRO and ELDO memberthe provisions of the Convention for the Establishment of a European Space Agency should be taken into account to the greatest possible extent,
Invites the Government of France, as depositary Government, to take all necessary steps to convene the first meeting of the Council of the Agency within one month from the entry into force of the Convention.”
5. Financial Protocol, Art. III, Forward Budgeting:
“1. As soon as possible after the entry into force of the Convention, the Council shall, by a two-thirds majority of all Member States, determine the level of expenditure for each year of the first three-year period within the agreed figure for that period.
2. For the succeding three-year periods the Council shall, by the same majority, in the year preceding each such period, determine the level of expenditure for each year within the figure determined in accordance with the provisions of Art. X, 4(c) of the Convention.”
6. ESRO Convention, Art. X, 4(e): “The Council shall, subject to the provisions of this Convention (…) adopt the annual budget of the Organisation by a two-thirds majority of all Member States and in accordance with the relevant decisions taken under Article III of the Financial Protocol annexed to this Convention;”
7. Financial Protocol, Art. I, 4: “The Council shall adopt the Budget before the beginning of each financial year.”
8. Financial Protocol, Art. 1,1.
9. ESRO Convention, Art. XII, 1(b).
10. Parliamentary Assembly of the Council of Europe, Twenty-Ninth Ordinary Session, Resolution 661 (1977), point 19, i.Google Scholar
11. ESRO Convention, Art. XV, 3: “The Council may amend the Financial Protocol annexed to this Convention by a unanimous vote of all Member States, provided that such an amendment does not conflict with the Convention. Any such amendment shall come into force on a date to be decided unanimously by the Council…”
12. ESRO Convention, Art. X, 5(e): “During the eighth year of the existence of the Organisation, the Council shall consider the voting provisions contained in paragraph 4(c) and (d) of this Article and may, by a unanimous decision of all Member States, recommend an amendment of those provisions in the light of the circumstances then prevailing and experience gained.”
13. Financial Rules, Art. 17, Provisional Twelfths:
“1. If a budget has not been adopted at the beginning of the financial year to which it relates, payments may be made and contracts may be entered into in accordance with the following provisions, provided that the principle of such expenditure has been recognized in the last adopted budget and that the Council or the relevant Programme Board does not decide otherwise.
2. Payments may be made in respect of expenditure previously approved by the Council or the relevant Programme Board, or in accordance with paragraph 3, but shall be limited each month to either one-twelfth of the appropriations for the preceding financial year for the programme or activity concerned or one-twelfth of the appropriations proposed for the corresponding programme of activity in the draft budget being considered, whichever is the lesser.
3. New contracts may be entered into within a limit of one quarter of the total contract authority for the preceding financial year provided that the contract authority proposed for the draft budget being considered is not exceeded.
4. At the request of the Director General, the Council or the relevant Programme Board, deciding by a two-thirds majority, may give simultaneous authority for two or more provisional twelfths, as necessary for the proper running of the Organisation.”
14. Financial Rules, Art. 34, 5, Crediting of Instalments: “If the budgets have not been adopted by the beginning of the financial year, the Director General shall prepare a payment estimate for a period which shall be determined by the Council or the relevant Programme Board. Contributions called up to cover this expenditure shall not exceed the total expenditure made during the first six months of the preceding financial year and shall be credited to the accounts of the Organisation in accordance with Article 33 of these Rules. The liability of Member States for normal contributions shall be reduced by the amount of contributions so paid.”
15. ESRO Convention, Art. X, 4(f): “The Council shall, subject to the provisions of this Convention (…), determine the financial arrangements of the Organisation by a two-thirds majority of all Member States.”
16. ESRO Convention, Art. XV, Amendments:
“1. The Council may recommend amendments to this Convention to Member States. Any Member State which wishes to propose an amendment shall notify the Director General there of. The Director General shall inform all Member States of any amendment so notified at least three months before it is to be discussed by the Council.
2. Any amendment recommended by the Council shall require acceptance in writing by all Member States. It shall come into force thirty days after the Government of France has received notification of acceptance from all Member States. The Government of France shall inform all Member States of the date of entry into force of any such amendment.”
17. ESRO Convention, Art. XX, 1.
18. ESRO Convention, Art. XVI, Disputes: “Any dispute concerning the interpretation or application of this Convention which is not settled by the good offices of the Council shall be submitted to the International Court of Justice, unless the Member States concerned agree on some other mode of settlement.”
19. ESRO Convention, Art. X, 6, Rules of Procedure: “Subject to the provisions of this Convention, the Council shall adopt its own rules of procedure.”
20. Rules of Procedure, Functions of the Chairman and Conduct of Business, Rule 12: “The Chairman shall, subject to the provisions of these Rules, control the proceedings of the Council and maintain order during its meetings. He shall declare the opening and closing of each meeting, direct the discussions and, if necessary, sum them up, ensure observance of these Rules, accord or withdraw the right to speak, decide points of order, put proposals to the vote and announce decisions. He may propose adjournment or closure of the debate, or adjournment or suspension of a meeting. He shall ascertain before each vote that a quorum is present.”
21. ESRO Convention, Art. X, 3, Bureau: “The Council shall elect a chairman and two vicechairmen, who shall hold office for one year and may be re-elected on not more than two consecutive occasions.”
21a. See n. 13 and n. 14 supra.
22. ESRO Convention, Art. X, 5(d): “Decisions of the Council shall to be taken by a simple majority of the Member States represented and voting, except where otherwise provided in this Convention.”
23. ESA Convention, Art. XI, 5(a): “In addition to the functions set forth elsewhere in this Convention and in accordance with its provisions, the Council shall
(a) as regards the activities and programme referred to in Art. V.1(a)(i) and (ii) –
(i) approve the activities and programme by a majority of all Member States; decisions to this effect may only be changed by new decisions adopted by a two-thirds majority of all Member States;
(ii) determine, by a unanimous decision of all Member States, the level of resources to be made available to the Agency for the coming five-year period;
(iii) determine, by a unanimous decision of all Member States, towards the end of the third year of each five-year period and after a review of the situation, the level of resources to be made available to the Agency for the new five-year period starting at the end of this third year;”
24. ESA Convention, Art. XI, 5(e): “In addition to the functions set forth elsewhere in this Convention and in accordance with its provisions, the Council shall
(e) as regards the budgets as defined in Annex II –
(i) adopt the annual general budget of the Agency by a two-thirds majority of all Member States;
(ii) adopt each programme budget by a two-thirds majority of the participating states;”
25. The budgets referred to here relate to the compulsory acitivities of the Organisation. In addition to these, the Organisation carries out a number of optional programmes (see above), each of which has its own budget. In legal terms these programmes must be seen as special projects as referred to in Art. VIII of the ESRO Convention: see n. 1 supra. They are governed by separate treaties, and the provisions of Art. X, 4(c), (d), and (e) of the ESRO Convention do not apply. Nevertheless, the optional programmes too are adversely affected by the problems discussed here, making their consequences so much the more serious.
26. Council of Europe, Parliamentary Assembly, Thirthieth Ordinary Session, Recommendation 844 (1978), point 18.Google Scholar