Jurisdiction and control by an intergovernmental organisation

For this new Space Law article on Space Legal Issues, let’s focus on the exercise of jurisdiction and control by an international intergovernmental organisation over a space object. Let’s study the case of the ISS module Columbus.

When studying jurisdiction and control by an intergovernmental organisation, let’s have a look at the Columbus module. Columbus is a science laboratory that is part of the International Space Station (ISS) and is the largest single contribution to the ISS made by the European Space Agency (ESA). Like the Harmony and Tranquility modules, the Columbus laboratory was constructed in Turin, Italy by Thales Alenia Space. The functional equipment and software of the laboratory was designed by EADS in Bremen, Germany. It was also integrated in Bremen before being flown to the Kennedy Space Center (KSC) in Florida in an Airbus Beluga. It was launched aboard Space Shuttle Atlantis on February 7, 2008 on flight STS-122. It was designed for ten years of operation. The module is controlled by the Columbus Control Centre, located at the German Space Operations Centre, part of the German Aerospace Center in Oberpfaffenhofen near Munich, Germany.

There are many legal questions arising from the Columbus example: is the module a space object or is it part of a bigger space object (here, the International Space Station)? Which entity would be internationally liable? Which entity has jurisdiction and control over the space object? Are liability and jurisdiction/control two different aspects?

Concerning the International Space Station (ISS), it is a collaborative endeavour between Canada, Japan, Russia, the United States of America, and eleven European Member States represented by ESA. A special provision was included in the January 29, 1998 International Space Station Intergovernmental Agreement (IGA). It stipulates that a partner State that provided a particular module to the Station is to register that module on its national registry. Therefore, the Partner State that provided the module retains jurisdiction and control over that module. Let’s study jurisdiction and control by an intergovernmental organisation.

A Space Object

The term Object in reference to outer space was first used in 1961 in General Assembly Resolution 1721 (XVI) titled International cooperation in the peaceful uses of outer space to describe any object launched by States into outer space. Professor Bin Cheng, a world authority on International Air and Space Law, has noted that members of the COPUOS during negotiations over the space treaties treated spacecraft and space vehicles as synonymous terms. The Space Object can be considered as the “conventional launcher (ELV)”, the “reusable launcher (RLV)”, the “satellite”, the “orbital station”, the “probe”, the “impactor”, the “space telescope”, the “International Space Station (ISS)”… As Professors Diederiks-Verschoor and Kopal wrote in An Introduction to Space Law, the term space object “is indeed the commonly used expression, but it must always be borne in mind that its exact meaning is still not quite clear”.

An object is defined by the Oxford English Dictionary as “A material thing that can be seen and touched”. The five Onusian treaties don’t use the term satellite, instead opting for “object launched into outer space” in the 1967 Outer Space Treaty or “space object” in the 1972 Liability Convention and the 1976 Registration Convention. The 1967 Outer Space Treaty doesn’t really provide a definition for “object launched into outer space” other than an indication in Article VIII that it includes the “component parts” of the “object launched into outer space”. To add to the mix, Article V of the 1967 Outer Space Treaty uses the term “space vehicle” and the 1968 Rescue Agreement (which is essentially an elaboration of Article V of the OST) uses the term “spacecraft”. A good definition is given by Professor Hobe who write that a “space object is a human made object launched into outer space intended to be used in (as opposed to merely transit through) outer space”.

Let’s remember that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”, article 31 of the Vienna Convention on the Law of Treaties of 1969. In addition, “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”, article 32 of the Vienna Convention on the Law of Treaties of 1969.

Let’s recall that a space object causing damage triggers international third-party liability under the Convention on International Liability for Damage Caused by Space Objects (entered into force in September 1972). Article I (d) of which enounces that “the term space object includes component parts of a space object as well as its launch vehicle and parts thereof”. Its Article II adds that “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight”.

A space object requires, thanks to the Convention on Registration of Objects Launched into Outer Space (entered into force in September 1976), registration. Article II of which states that “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”.

Finally, the term space object effectively triggers application of much of both 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 in October 1967) and the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (entered into force in December 1968). Article VII of the first declares that “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies”.

Article 5 of the latter states that “1. Each Contracting Party which receives information or discovers that a space object or its component parts has returned to Earth in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State, shall notify the launching authority and the Secretary-General of the United Nations. 2. Each Contracting Party having jurisdiction over the territory on which a space object or its component parts has been discovered shall, upon the request of the launching authority and with assistance from that authority if requested, take such steps as it finds practicable to recover the object or component parts. 3. Upon request of the launching authority, objects launched into outer space or their component parts found beyond the territorial limits of the launching authority shall be returned to or held at the disposal of representatives of the launching authority, which shall, upon request, furnish identifying data prior to their return”.

The 1967 Outer Space Treaty doesn’t really provide a definition for “object launched into outer space” other than an indication in Article VIII that it includes the “component parts” of the “object launched into outer space”. It 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”. We’ll conclude with the definition given by Professor Hobe who wrote that a “space object is a human made object launched into outer space intended to be used in (as opposed to merely transit through) outer space”.

An International Intergovernmental Organisation

An International Organisation is an organisation with an international membership, scope, or presence. There are two main types: 1. Intergovernmental Organisations, also known as International Governmental Organisations (IGOs): the type of organisation most closely associated with the term “International Organisation”, these are organisations that are made up primarily of Sovereign States (referred to as Member States). Notable examples include the United Nations (UN) or the Council of Europe (COE). The UN has used the term “intergovernmental organisation” instead of “international organisation”. 2. International Nongovernmental Organisations (INGOs): non-governmental organisations (NGOs) that operate internationally.

Jurisdiction and control by an intergovernmental organisation

What about jurisdiction and control by an intergovernmental organisation? Article VI 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) affirms that “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization”.

Article XIII of the 1967 OST states also that “The provisions of this Treaty shall apply to the activities of States Parties to the Treaty in the exploration and use of outer space, including the Moon and other celestial bodies, whether such activities are carried on by a single State Party to the Treaty or jointly with other States, including cases where they are carried on within the framework of international intergovernmental organizations. Any practical questions arising in connection with activities carried on by international intergovernmental organizations in the exploration and use of outer space, including the Moon and other celestial bodies, shall be resolved by the States Parties to the Treaty either with the appropriate international organization or with one or more States members of that international organization, which are Parties to this Treaty”.

Article VII of the Convention on Registration of Objects Launched into Outer Space (entered into force on September 15, 1976) declares that “1. In this Convention, with the exception of articles VIII to XII inclusive, references to States shall be deemed to apply to any international intergovernmental organization which conducts space activities if the organization declares its acceptance of the rights and obligations provided for in this Convention and if a majority of the States members of the organization are States Parties to this Convention and to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. 2. States members of any such organization which are States Parties to this Convention shall take all appropriate steps to ensure that the organization makes a declaration in accordance with paragraph 1 of this article”.

Concluding remarks on jurisdiction and control by an intergovernmental organisation

In January 1979, the European Space Agency (ESA) accepted the rights and obligations of the 1976 Registration Convention. Let’s mention that Article VII of the 1967 OST states that “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies”. In this case, the United States of America would be internationally liable (Columbus was launched aboard Space Shuttle Atlantis on February 7, 2008 on flight STS-122 from Florida, USA).

Article VIII prescribes 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”.

On the UN Online Index of Objects Launched into Outer Space, regarding the ISS Columbus module, we find that:

Information furnished in conformity with the Convention on Registration of Objects Launched into Outer Space

Letter dated 5 March 2010 from Head of the Legal Department of the European Space Agency to the Secretary-General

In conformity with the Convention on Registration of Objects Launched into Outer Space (General Assembly resolution 3235 (XXIX), annex), the rights and obligations of which the European Space Agency has declared its acceptance of, the Agency has the honour to transmit information on the launching of the following objects: MAQSAT 3 (international designator 1998-059A), Columbus (international designator 2008-005B), Jules Verne (international designator 2008-008A), GIOVE-B (international designator 2008-020A), Herschel (international designator 2009-026A), Planck (international designator 2009-026B) and GOCE (international designator 2009-013A) (see annex).

Columbus

COSPAR international designator: 2008-005B

Name of space object: Columbus

Name of the launching authority: European Space Agency (ESA)

Launch date: 7 February 2008

Launch site: Kennedy Space Center, Florida, United States of America”.

The United States of America “is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies”. ESA “shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body”. That is what we can say about jurisdiction and control by an intergovernmental organisation.