Flag state and Space Law

For this new Space Law article on Space Legal Issues, let’s have a look at the similarities between the notion of flag state and Space Law. The flag state of a merchant vessel (a merchant ship, merchant vessel, trading vessel, or merchantman is a watercraft that transports cargo or carries passengers for hire; this is in contrast to pleasure craft, which are used for personal recreation, and naval ships, which are used for military purposes) is the jurisdiction (the practical authority granted to a legal body to administer justice within a defined field of responsibility, the official power to make legal decisions and judgements) under whose laws the vessel is registered or licensed, and is deemed the nationality of the vessel.

Are there any similarities between flag states and Space Law states of registry? Let’s recall that the 1967 OST affirms that States shall bear international responsibility for their national activities in outer space and refers to the State on whose registry an object launched into outer space is carried. The 1968 Rescue Agreement provides that a launching authority shall, upon request, furnish identifying data prior to the return of an object it has launched into outer space found beyond the territorial limits of the launching authority.

Concerning space objects, like merchant vessels, a central register of objects launched into outer space was established and is maintained, on a mandatory basis, by the Secretary-General of the United Nations. The mandatory system of registering objects launched into outer space (which allows identification), like that of registering ships, contributes to the application and development of International Space Law governing the exploration and use of outer space. Let’s have a look at the similarities between the notion of flag state and Space Law.

Flag state and Space Law

A merchant vessel must be registered and can only be registered in one jurisdiction, but may change the register in which it is registered. The flag state has the authority and responsibility to enforce regulations over vessels registered under its flag, including those relating to inspection, certification, and issuance of safety and pollution prevention documents. As a ship operates under the laws of its flag state, these laws are applicable if the ship is involved in an admiralty case.

Admiralty law or maritime law is a body of law that governs nautical issues and private maritime disputes. Admiralty law consists of both domestic law on maritime activities, and private international law governing the relationships between private parties operating or using ocean-going ships. Admiralty law may be distinguished from the Law of the Sea, which is a body of public international law dealing with navigational rights, mineral rights, jurisdiction over coastal waters, and the maritime relationships between nations.

The term “flag of convenience” describes the business practice of registering a merchant ship in a state other than that of the ship’s owners, and flying that state’s civil ensign on the ship. Ships may be registered under flags of convenience to reduce operating costs, to avoid the regulations of or avoid inspection and scrutiny by the owner’s country. Normally the nationality (the flag) of the ship determines the taxing jurisdiction. Panama is the world’s largest flag state, with almost a quarter of the world’s ocean-going tonnage registered there.

Since the Flag Right Declaration of 1921 or “Declaration recognising the Right to a Flag of States having no Sea-coast”, it has been recognised that all states, including land-locked countries, have a right to maintain a ship register and be a ship’s flag state. Because of the failure of some flag states to comply with their survey and certification responsibilities, especially flag-of-convenience states that have delegated their task to classification societies (a non-governmental organisation that establishes and maintains technical standards for the construction and operation of ships and offshore structures), a number of states have since 1982 established Port State Controls (an inspection regime for countries to inspect foreign-registered ships in port other than those of the flag state and take action against ships that are not in compliance) of foreign-registered ships entering their jurisdiction.

Concerning Space Law, it is interesting to note that Article VIII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967) states that “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return”.

Let’s recall that the 1967 OST affirms that States shall bear international responsibility for their national activities in outer space and the Treaty refers to the State on whose registry an object launched into outer space is carried. The 1968 Rescue Agreement provides that a launching authority shall, upon request, furnish identifying data prior to the return of an object it has launched into outer space found beyond the territorial limits of the launching authority. Plus, a central register of objects launched into outer space was established and is maintained, on a mandatory basis, by the Secretary-General of the United Nations.

Article I of the 1976 Registration Convention states that “The term “State of registry” means a launching State on whose registry a space object is carried”. Article II of the 1976 Registration Convention adds that “1. When a space object is launched into Earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry. 2. Where there are two or more launching States in respect of any such space object, they shall jointly determine which one of them shall register the object in accordance with paragraph 1 of this article, bearing in mind the provisions of article VIII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and without prejudice to appropriate agreements concluded or to be concluded among the launching States on jurisdiction and control over the space object and over any personnel thereof. 3. The contents of each registry and the conditions under which it is maintained shall be determined by the State of registry concerned”.

There are of course many similarities between the notion of flag state and Space Law. Ships, like space objects (which are defined by Professor Hobe, a world authority on International Space Law, as any “human made object launched into outer space and intended to be used in (as opposed to merely transit through) outer space”), have to be registered or licenced; they operate under a flag state (the jurisdiction under whose laws the vessel is registered or licensed). Space objects are under the jurisdiction and control of the “State Party to the Treaty on whose registry an object launched into outer space is carried”. Let’s recall that a State of registry, like a flag state, is a launching State on whose registry a space object is carried. Again, like a flag state, it is the State of registry’s jurisdiction that will apply to the space object: if France is the flag state of a vessel, the French jurisdiction will apply to that vessel. If France is the State of registry of any given space object, a satellite tour Eiffel for example, France will retain jurisdiction and control over the tour Eiffel satellite.

Concluding remarks

It of course makes sense for vessels to choose the most advantageous flag state (usually one were taxes are low). For space object, the object will be registered by the State of registry, usually the state which owns and utilises the spacecraft (in our previous example, France owning and utilising the tour Eiffel satellite). What would now be interesting is the in-orbit change of ownership of a space object; for example, as if the tour Eiffel satellite was sold by France to Japan, or if a French private company owning the tour Eiffel satellite, for financial reasons, decided to change State of registry… We will study those cases in our next Space Legal Issues Space Law articles.