• Anne-Sophie Martin

An Insight on the Italy-Kenya Agreement concerning the Malindi Space Centre “Luigi Broglio”

The Center, conceived in 1964 by Prof. Broglio of the Sapienza University of Rome, is a pole of excellence for Italian aerospace technology and a tool for scientific and technological dialogue with the entire African continent. The space base, located in the territory of the Republic of Kenya, is composed by two parts: the sea segment and the land segment. Over the years, the Center has been the basis for the launch of numerous satellites and today carries out activities to assist space missions and acquisition of satellite data.

International cooperation in the field of space activities[1] are essentials tools for the African continent or more generally for emerging or non-space faring nations, as mentioned in the United Nations Agenda 2030 and during UNISPACE+50[2], in order to ensure their socio-economic development. Indeed, Africa is facing critical challenges in rapidly increasing urbanization, sustainable management of the environment, natural resources, agriculture, and in the necessity to develop technical competencies and capacity building for a growing population.

The African Union is fostering cooperation in space activities in order to share knowledge, resources and capabilities among the countries in order to make the continent a space leader at regional and international level.[3] In this context, more and more countries are creating national space agencies to provide an institutional and legislative framework for national space activities. This purpose to build national space sectors was also supported by the development of small satellites which are the best suitable solution for African countries to reach outer space as they are less expensive than usual satellites.[4]

Italy-Kenya bilateral cooperation in space activities started with the establishment of the Broglio Space Centre (BSC) during the sixties when Italy was first engaging in space activities. After the base was established, the San Marco 2 satellite was successfully launched from the platforms in 1967, making Italy the third country to launch an object into outer space from a national facility and the first to do it from the sea.

During the seventies, different countries such as Italy, the United States and United Kingdom launched from the space base. The last one occurred in 1988 with San Marco 5[5].

As of now, the base provides ground services and it has been included in the European Space Agency’s network of tracking stations (ESTRACK)[6]. Moreover, the Centre is being modernized. Indeed, it has been equipped with a new S band antenna to support Falcon Heavy and Ariane 6 launchers, and new fast boats should reach the site in order to facilitate the connection between the terrestrial segment and the maritime one[7]. Today the BSC is managed by the Italian Space Agency (ASI) after the transfer of its administration from Sapienza University who handled the facility until 2003[8].

From a legal standpoint, the base has been governed by 4 bilateral agreements, concluded in 1964, 1987, 1995, and more recently in 2016. The latter is not already into force, pending ratification procedures in both countries[9]. In the meantime, the Centre is still regulated by the 1995 agreement in a regime of prorogatio. The following part addresses the most relevant aspects of these agreements.

First of all, the legal basis for the establishment of a base abroad is the consent of the territorial State[10]. This consent is in fact sufficient to remove inter partes the prohibition established by the customary rule protecting territorial sovereignty[11]. In public international law, consent represents an exemption to the unlawfulness of a conduct[12]. It is obvious that kenya’s consent, expressed in the 1964 Exchange of Notes, was required for the legality presence of the Italian base in Kenyan territory.

Moreover, the portion of Kenyan territory that Italy was allowed to use can be defined as an international lease of territory, thus not implying a transfer of sovereignty from the territorial State to the one managing the facility. This situation has significant consequences on the rights and the duties of the parties as mentioned in the agreements[13]. For instance, Italy shall submit the list of tools and personnel entering Kenyan territory and it has to receive Kenyan authorization for every launch[14]. Another important consequence is that every activity performed by a third party within the perimeter of the Italian base shall be subject to the consent of Kenya[15]. The use of the base by third parties was regulated by art.VI of the 1995 Italy-Kenya bilateral agreement, and was subjected to a written authorization delivered by Kenya after Italy submitted a request in accordance with art. III(6).

In 1995, the European Space Agency concluded a Trilateral Protocol with both countries in order to install its equipment at the San Marco base[16]. On one hand, Italy and Kenya gave their authorizations allowing ESA equipments to enter and be installed on the Kenyan’s territory and within the perimeter of the base[17]. Hence, the agreement contains a set of rights and duties in order to inform the Government of Kenya about the programmes and the activities performed by Ariane and TTC facilities in the Broglio Space Centre[18]. On the other hand, Kenya shall provide as soon as possible free access to the country’s telecommunications system in order to grant the correct functioning of ESA equipment, in compliance with ITU Radio Regulations and with Kenya legislation in force[19]. In this regard, the two parties will coordinate their activities so to avoid harmful interferences, while the protection of the radio-frequencies conceded to the Agency is a duty of the territorial State[20].

Secondly, another relevant aspect to underscore is the regime of liability under Italy-Kenya agreements. In the case of a launching station in foreign territory, the State managing the facility and the territorial one, both matching the definition of “launching State” provided by art.I(C) of LIAB, are “jointly and severally liable” under its art.V. Thus, the victim can ask compensation to both States involved in the activities[21]. However, each launching State could ask for indemnification to the others and it is recommended that the apportionment of liability should be foreseen by a contractual clause[22].

In this context, Kenya could potentially be held liable being the State from whose territory the objects are launched. Nevertheless, art.VII of 1995 agreement prevents the eventual duty of Kenya of bearing costs in case of damage and compensation claimed. These costs shall be entirely taken over by Italy as the agreements prescribe Italy shall be liable for any damage caused to objects out of the perimeter of the base or to any person[23]. Moreover, Italy has the duty to indemnify Kenya for potential losses in which the territorial State would undergo in case of claims presented against it[24]. Italy’s liability has been reiterated by the 2016 agreement. Nevertheless, the latter also prescribes Kenya shall be held liable if the damage has been caused by gross negligence, deliberate act or omission by Kenyan personnel. The obligation of Kenya to hold the burdens linked to the liability in case of fault of its employees is an innovation inserted in 2016[25]; the 1995 agreement in fact contained no exemption to Italy’s obligation to indemnify the territorial State neither in case of damages caused by Kenyan personnel’s fault.

The 2016 agreement provides a comprehensive set of rules governing the cooperation between Italy and Kenya in the management of the base and, more generally, in fields related to scientific research for the development of the African country. The content of such cooperation is well described in the text of the agreement and strengthened in the five Implementing Arrangements attached which concern (i) the establishment of a Regional Centre for Earth Observation, expected to serve Eastern and Central Eastern African region, and access to EO data by Kenya; (ii) the support to Kenya Space Agency (KENSA) in terms of its establishment and implementation; (iii) telemedicine[26]; (iv) the cooperation in training and education.

During the last decades, Kenya started elaborating space policies with the creation of a national space programme in order to boost and to promote the economy and social progress of the country. Amongst the initiatives, there is the establishment of the Kenya Space Agency through Presidential Order in 2017[27]. The development of a national space sector has also been characterized by the deployment in orbit of a nano-satellite realized within the framework of the Italy-Kenya University Nano-satellites project (IKUNS)[28]. The first IKUN was manufactured by Italian and Kenyan students, and was deployed through the UNOOSA/JAXA cooperation project. The latter’s purpose is to launch from “KiboCUBE”, the Japanese module of the International Space Station (ISS), nano-satellites built by developing countries or research institutions belonging to UN member States in order to to facilitate the access to outer space to many more actors[29]. In 2016 the first “Kenya University Nanosatellite Precursor Flight” (1 IKUNS-PF) has been selected by UNOOSA, in coordination with JAXA, as the first CubeSat deployed from KiboCUBE within the framework of the cooperation programme. This successful mission achieved in May 2018 enabled Kenya to launch its first object into outer space[30], which has been registered by the Republic of Kenya under Res.1721 B (XVI) as the country is not party to the Registration Convention[31]. One can argue that it is just the beginning of the Kenyan space journey, especially in the case of EO satellite for sustainable development, agriculture, animal habit and forest conservation.

Developing countries are more and more involved in the development of their space capabilities. The bilateral cooperation between Kenya and Italy henceforth encompasses a broad range of space activities which will certainly have a meaningful influence and impact on the country’s socio-economic development.

The opinions expressed in these blogs posts are those of the author and do not necessarily represent the views of the Centre for a Spacefaring Civilization or anyone else.

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[1]Articles III, IV and X of the Outer Space Treaty.

[2]Transforming our world: the 2030 Agenda for Sustainable Development, A/RES/70/1, 21 October 2015; UNISPACE+50, Vienna, Austria, 18-21 June 2018.

[3]African Space Strategy, Towards Social, Political and Economic Integration, Second ordinary session of the Specialized Committee Meeting on Education, Science and Technology, Cairo Egypt, 21-23 October 2017, African Union, HRST/STC-EST/Exp./16 (II), p.11; see also African Union’s Agenda 2063 adopted by the Heads of State and Governments of the African Union at their 24th Ordinary Assembly held in Addis Ababa, Ethiopia, from 30-31 January 2015: https://au.int/agenda2063/overview.

[4]Juman W. Harris, P. Waswa, Space Technology and Africa’s Development: The Strategic Role of Small Satellites, in Faculty Research Working Paper Series Harvard Kennedy School, (2017), p.4.

[5]M. De Maria, L. Orlando, F. Pigliacelli, Italy in Space 1946-1988, ESA Publications Division, The Netherlands, (2003), p.17; S. Lessard, F. Nordlund, Les Bases de Lancement: Evolution et Aspects Juridiques, in Annales de Droit Aérien et Spatial, Vol.XV, (1990), pp.364-365.

[6]ESTRACK core network is constituted of Kourou (French Guiana), Maspalomas, Villafranca and Cebreros (Spain), Redu (Belgium), Santa Maria (Sweden), New Norcia (Australia) and Malargüe (Argentina): http://www.esa.int/Enabling_Support/Operations/Estrack/Find_ESA_tracking_stations.

[7]Il Broglio Space Center fa un nuovo upgrade, March 2019: https://www.astronautinews.it/2019/03/il-broglio-space-center-fa-un-nuovo-upgrade/.

[8]G. Caprara, Storia italiana dello spazio: Visionari, scienziati e conquiste dal XIV secolo alla stazione spaziale, Milano, (2012), p.389; Decree of the Ministry of Education, University and Research Prot.1927/Ric., 13 November 2003, implementing the legislative decree n.128 of 4 June 2003, in its art.16 para 3.

[9]Exchange of Notes between the Government of the Republic of Kenya and the Government of the Italian Republic, Italian Note, 10 January 1964; Accordo tra l’Italia e il Kenya relative alla base di lancio e controllo di satellite di San Marco-Malindi, in Kenya, Nairobi, 1 April, GURI SO n.163, 15 July 1987; Accordo tra l’Italia e il Kenya relative alla base di lancio e controllo di satellite di San Marco-Malindi, in Kenya, Nairobi, 14 March 1995, GURI 15 April 1996, SO n.65; Agreement between the Government of the Republic of Kenya and the Government of the Italian Republic on the Luigi Broglio-Malindi Space Centre, Trento, Italy, 24 October 2016; Ratifica ed esecuzione dell’Accordo fra il Governo della Repubblica italiana e il Governo della Repubblica del Kenya relative al Centro spaziale Luigi Broglio – Malindi, Kenya, con Allegato e Protocolli attuativi, fatto a Trento il 24 ottobre 2016, Presentato in data 22 febbraio 2019; annunciate nella seduta n.93 del 25 febbraio 2019, approvato il 12 giugno 2019, S-1088; the draft law providing the authorization for the President of the republic to ratify the treaty is now under the attention of the House of Deputies: Atto camera n.1909 XVIII legislature.

[10]S. Marchisio, Le basi military nel diritto internazionale, Milano, 1984, p.157; “Lotus” case, Permanent Court of International Justice, Series A, No.70 September 7th, 1927, p.18 “since territorial sovereignty benefits of an absolute protection, only the existence of a permissive rule, conventional or customary, can derogate to the prohibition of interfering with the territorial sovereignty of another State”.

[11]S. Marchisio, Le basi military nel diritto internazionale, Milano, (1984), p.166.

[12]N. Ronzitti, Le basi military in Italia – Problemi Aperti, in Contributi di Istituti di Ricerca Specializzati, Senato della Repubblica N°70, (2007), p.8.

[13]O. Ferrajolo, San Marco-Malindi: La Base Spaziale Italiana in Kenya, in Riv.Dir. Int. (1995) p.923.

[14]Art.III par.3, Art.IV parr.5 and 7 of both 1987 and 1995 Agreement; Artt. VIII, IX and XII 2016 Agreement.

[15]Art. VI of the 1987 and 1995 Agreements; Art. X 2016 Agreement.

[16]Protocol between the Government of the Republic of Italy, the Government of the Republic of Kenya and the European Space Agency on the setting up and operation of European Space Agency equipment within the perimeter of the San Marco satellites tracking and launching station in Malindi, Kenya and on the cooperation between the Government of the Republic or Kenya and ESA for peaceful purposes, September 13, 1995.

[17]The description of the equipment is included in the Annex which is integral part of it under Article 12. In particular, the facilities made available to the Agency include the Italian Malindi station infrastructure equipment, ESA Ariane facilities for telemetry of Ariane launchers and ESA Telemetry Tracking and Command (TTC) facilities for the control of satellites in orbit)

[18] Art. 2 para.1: “…The Agency shall keep regularly informed the Government of the Republic of Kenya of the activities of the Ariane and TTC facilities at the Malindi station and will provide quarterly reports on such activities”.

[19]Art. 5 para. 1-2.

[20]Art. 5 para.3.

[21]L.J. Smith, A. Kerrest, Article V (Joint Launch/ Joint and Several Liability), in S. Hobe, B. Schmidt-Tedd, K. Schrogl, CoCoSL, Vol.II, (2013), p.144.

[22]S. Marchisio, International Legal Regime on Outer Space: Liability Convention and Registration Convention, in Meeting international responsibilities and addressing domestic needs. Proceedings United Nations/Nigeria Workshop on Space Law, United Nations, Vienna, (2006), pp.18-27.

[23]Art. VII para. 1: “Per qualsiasi danno arrecato a qualsiasi proprietà al di fuori della Base o a qualsiasi persona a causa delle attività di cui all’Art. I, il Governo della Repubblica Italiana sarà responsabilie del risarcimento”.

[24]Art. VII para. 3: “In caso di azioni, cause o rivendicazioni nei confronti del Governo della Repubblica del Kenya in merito o in relazione alle attività effettuate presso la Base, il Governo della Repubblica Italiana provvederà ad indennizzare ed a liberare il Governo del Kenya da responsabilità per perdite e rivendicazioni relative a lezioni o danni, costi, oneri e spese relative o attinenti ad esse”; art. VII para. 2: “a) Per quanto riguarda le attività connesse al lancio, l’ente pubblico designato ai sensi dell’Art. V del presente Accordo, sottoscriverà una polizza di assicurazione con una o più compagnie di assicurazioni autorizzate ad effettuare transazioni assicurative in Kenya e che siano autorizzate dal Ministero del tesoro keniota...”.

[25]Art. XI 2016 Agreement.

[26]WHO Telemedicine_Opportunities and developments in Member States: Report on the second global survey on eHealth, in Global Observatory for eHealh Series, 2, Geneva (2010), p.11; Transforming our world: the 2030 Agenda for Sustainable Development, UNGA Res. 70/1, (21 October 2015) para. 26; Report of the Committee on the Peaceful Uses of Outer Space Sixty-first session (20-29 June 2018), A/73/20).

[27]The Kenya Space Agency Order, 7 March 2017, Kenya Gazette Supplement no. 24.

[28]F. Santoni, F. Piergentili, M. Mbuthia, S. Pirrotta, Italy-Kenya University Nano Satellites (IKUNS), presented at 4th UNISEC-Global Meeting, Kamchia, October 18-23, 2016.

[29]Recommendation for the Future “Science, Technology and Innovation” as a Bridging Force to Provide Solutions for Global Issues, in Four Actions of Science and Technology Diplomacy to Implement the SDGs, Advisory Board for Promotion of Science and Technology Diplomacy, Science and Technology Advisor to the Minister for Foreign Affairs of Japan: https://www.mofa.go.jp/files/000255799.pdf.

[30]First KiboCUBE satellite deployed from the International Space Station, United Nations Information Service, UNIS/OS/494, 11 May 2018. The object has been registered by the Republic of Kenya under Res.1721 B (XVI) as the country is not party to the 1975 Registration Convention.

[31]Information furnished in conformity with General Assembly resolution 1721 B (XVI) by States launching objects into orbit or beyond. Note verbale dated 23 January 2019 from the Permanent Mission of Kenya to the United Nations (Vienna) addressed to the Secretary-General, A/AC.105.INF/433, 24 January 2019.

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