The European Space Agency has come under criticism from journalists for its reluctance to reveal information. But here’s the catch: The intergovernmental organization that redistributes billions of euros in taxpayer money isn’t obliged to comply with any Freedom of Information law. It stands above it. Here’s why.
The legal world of the European Space Agency (ESA) is an odd one. The organization, founded in 1975, is governed by its Convention, a 130-page document that outlines not only the space agency’s governing structure but in addition the numerous immunities and privileges its staff members and representatives enjoy. Above all, the document puts ESA above any jurisdiction — that’s, it isn’t subject to the legal framework of any country that will have a stake in ESA and through which ESA facilities may reside. In accordance with the Convention’s annex, all ESA staff members not only have “immunity from jurisdiction in respect of acts, including words written and spoken, done by them within the exercise of their functions” but in addition “enjoy inviolability for all their official papers and documents.”
That, based on legal experts that Space.com talked to, is common for intergovernmental organizations. Nevertheless it creates a weird setup through which the taxpayers who fund the activities of those organizations don’t have any legally enforceable insight into how their money is being spent.
Contrast that, for instance, with the European Union (EU), which, contrary to some popular beliefs, has nothing to do with ESA. In accordance with Article 15 of the Treaty on the Functioning of the European Union, residents of EU countries have “a right of access to the documents of the European Parliament, the European Council and the European Commission.” Under this Act, journalists may even request access to non-public emails and text messages of EU officials, if those might help make clear suspicious activity.
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For instance, in 2021, European journalists requested access to text messages exchanged between EU Commission President Ursula von der Leyen and the CEO of pharma giant Pfizer, through which the 2 negotiated a deal to buy 900 million COVID-19 vaccines. The text messages were never disclosed, as, based on EU officials, they now not existed. That led the journalists involved to complain to the European ombudsman, who reprimanded von der Leyen. The difficulty didn’t end there. The EU president now stands accused in front of a Belgian court of getting acted without member states’ knowledge within the Pfizer vaccine matter.
Compare that with the tools that journalists should request information in regards to the deals made by ESA, a company with an annual budget of over 7 billion euros ($7.6 billion US at current exchange rates), which lately has been lobbying for ever higher financial contributions from its member states because it intends to portray itself as a significant global space player, on par (form of) with the American space agency, NASA.
In early August, Ars Technica’s Senior Space Editor Eric Berger sparked a discussion on X, formerly often known as Twitter, commenting on ESA’s reluctance to share timely information in regards to the testing of Europe’s recent Ariane 6 rocket, a project known to be years behind schedule and heavily over budget.
“The European Space Agency’s lack of transparency with regard to the Ariane 6 rocket’s development and testing is totally unacceptable,” Berger said within the post. “This can be a publicly funded project. Put one other way, if NASA was attempting to pull this garbage with the Space Launch System or other major project in the US, the U.S. space press corps can be up in arms.”
Unlike ESA, NASA isn’t above the law. The American space agency, sure by the U.S. 1966 Freedom of Information Act (FOIA), employs a dedicated FOIA officer and has an easy-to-use online form on its website through which any member of the general public can file a FOIA request. NASA may refuse to reveal documents that it considers protected, the agency says in an announcement, however the rejected members of the general public have a right to file appeals and even take the agency to court over such refusals. Similar procedures are in place for the U.K. Space Agency and other government-funded organizations within the democratic world.
ESA can fend off such requests far more easily. Within the discussion spurred by Berger’s initial post, BBC science correspondent Jonathan Amos compared extracting information from ESA to “pulling teeth” and described the situation as “a deep running sore.”
Responding to Space.com’s request to comment on the situation, an ESA spokesperson confirmed that national (or European) “Freedom of Information Acts should not directly applicable to ESA, since intergovernmental organizations are generally not subject to the laws of individual Member States.”
The spokesperson further wrote that “the ESA Council and Director General have taken several steps lately with a view to further increase transparency. Amongst other steps, these include the Council authorizing the general public release of certain categories of official ESA documents listed on this website.”
Along with that, the spokesperson said, “the Director General may on a case-by-case basis propose the general public release of any document presenting an interest for the general public or conduct press conferences informing the general public and media on matters related to the Council.”
In other words, ESA decides what it wants to reveal and what it doesn’t. Full stop. Unlike its larger partner NASA or the EU, ESA has no FOIA mechanism in place. If journalists fail to get a hold of data, there isn’t a ombudsman or court they will turn to in an effort to appeal.
The European Centre for Press and Media Freedom, an EU-based nonprofit organization protecting media freedom in Europe, commented on the situation. While “proactive transparency of documents is significant,” the Centre said, the appropriate to “request information that has not been published is vital for journalists to give you the chance to meet their duty. If there are not any legal tools to make sure publication of documents, journalists cannot fully access information that may very well be in the general public interest.”
British Freedom of Information consultant Martin Rosenbaum added: “Intergovernmental organizations equivalent to ESA take necessary and far-reaching decisions and spend huge sums of public money obtained from the populations of their member states. But often they’re completely unaccountable to the general public and lacking in transparency. Even when those countries have freedom of data processes for their very own public institutions, intergovernmental bodies may escape the reach of national laws, as in the event that they are floating somewhere in space outside any earthly jurisdiction.”
ESA is not the only intergovernmental organization that enjoys this relative freedom from accountability. In his 2017 Report on the promotion and protection of the appropriate to freedom of opinion and expression, the United Nations Special Rapporteur of the Human Rights Council found that the majority U.N.-funded bodies and intergovernmental agencies haven’t got an independently enforceable Freedom of Information framework in place.
That may sound strange, considering that access to information held by public bodies is, the truth is, enshrined in Article 19 of the Universal Declaration of Human Rights and in Article 19 of the International Covenant on Civil and Political Rights, based on the report.
And a few of these organizations take their obligation to transparency seriously. The Special Rapporteur found examples of intergovernmental institutions, including the World Bank, the United Nations Environment Programme and the United Nations Development Programme, which have voluntarily subjected themselves to Freedom of Information policies that include clear timelines for responding to requests and procedures for appealing decisions if requests are declined.
Rosenbaum suggests that a method for intergovernmental organizations equivalent to ESA to bring themselves consistent with the final practices of the Twenty first-century democratic world can be to subject themselves to the law of the countries where they’re headquartered. That may allow “residents of all their member states to make use of that system to request information in the general public interest.”
But ESA’s response to Space.com’s query suggests that the European equivalent of NASA is nowhere near able to take such a step. In reality, the ESA Convention comprises additional obstacles that make it nearly not possible for journalists to acquire ESA documents which have not been officially sanctioned for public release.
There may be clearly no requesting access to emails and text messages of ESA bigwigs anytime soon. Ursula von der Leyen should be envious. In its response to Space.com’s request, ESA’s spokesperson identified that the ESA Convention comprises “provisions [for] waivers of immunity and a cooperation precept to facilitate the correct administration of justice.” How often those waivers are getting used, nevertheless, stays an open query.