Jurisdiction over a multi-component space object

In our research on Space Law and on the notion of Space object, let’s have a look at how jurisdiction over a multi-component space object is managed. In this case, by the terms “multi-component space object”, we will look at a space object composed of many space objects, each under the jurisdiction and control of a different state. The best example is the International Space Station (ISS).

The Space Station started out as a US programme to be executed by NASA at the end of the 1970s. It acquired an international dimension for the first time with the conclusion in 1985 of three MOUs for the conducting of parallel detailed definition and preliminary design studies on the Space Station. These MOUs, dealing with what are commonly referred to as “Phase-B” activities, were concluded between NASA and ESA, NASA and the Japanese Government, and NASA and the Canadian Ministry of State for Science and Technology (MOSST).

One year later, negotiations started on the legal framework that would apply for the full development (Phase-C/D) and exploitation (Phase-E, combining operation and utilisation) of the Space Station. Because of the expected 30-year duration of this project and the corresponding multi-billion dollar envelope, it was decided not to limit the legal instruments to Agency-level MOUs, but to involve those States wishing to participate in such a project through the conclusion of an international agreement, the Space Station Inter-Governmental Agreement (IGA), setting out the general principles for carrying out this cooperation.

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”.

What would be interesting would be to analyse the case of a single space object, a satellite for example, made of different parts which would have different missions while orbiting. Of course, the object would be registered by the State of registry but, what if the object was considered a multi-component space object (because of the technicality of its mission) and therefore, if the spacecraft was under a joint jurisdiction and control? Let’s now have a look at how jurisdiction over a multi-component space object is managed.

Jurisdiction over a multi-component space object: the case of ISS

The International Space Station (ISS) is a co-operative programme between Europe, the United States of America, Russia, Canada, and Japan for the joint development, operation and utilisation of a permanently inhabited Space Station in Low Earth Orbit (LEO). The legal framework defines the rights and obligations of each of the countries and their jurisdiction and control with respect to their Space Station elements.

IGA establishes a long-term international cooperative framework on the basis of genuine partnership for the design, development, operation, and utilisation of a permanently inhabited civil international Space Station for peaceful purposes, in accordance with international law. The International Space Station (ISS) legal framework is built on three levels of international co-operation agreements.

1. The International Space Station Intergovernmental Agreement (IGA), often referred to as the IGA, is an international treaty signed on January 29, 1998 by the fifteen governments involved in the Space Station project. This key government-level document establishes “a long term international co-operative frame-work on the basis of genuine partnership, for the detailed design, development, operation, and utilisation of a permanently inhabited civil Space Station for peaceful purposes, in accordance with international law” (Article 1).

2. Four Memoranda of Understandings (MoUs) between the National Aeronautics and Space Administration (NASA) and each co-operating Space Agency: the European Space Agency (ESA), the Canadian Space Agency (CSA), the Russian Federal Space Agency (Roscosmos), and the Japan Aerospace Exploration Agency (JAXA). The objective of these space agencies-level agreements is to describe in details the roles and responsibilities of the agencies in the design, development operation and utilisation of the Station. In addition, the agreements serve to establish the management structure and interfaces necessary to ensure effectively the utilisation of the Station.

3. Various bilateral Implementing Arrangements between the space agencies have been established to implement the Memoranda of Understandings. The Arrangements distribute concrete guidelines and tasks among the national agencies.

The Intergovernmental Agreement allows the Space Station Partners States to extend their national jurisdiction in outer space, so the elements they provide (e.g. laboratories) are assimilated to the territories of the Partners States. Article 5 paragraph 2 of the IGA states that “each Partner shall retain jurisdiction and control over the elements it registers… and over personnel in or on the Space Station who are its nationals”.

This means that the owners of the Space Station – the United States of America, Russia, ESA, Japan and Canada – are legally responsible for the respective elements they provide. The European States are being treated as one homogeneous entity, called the European Partner on the Space Station. But any of the European States may extend their respective national laws and regulations to the European elements, equipment and personnel.

This extension of national jurisdiction determines what laws are applicable for activities occurring on a Partner’s Space Station element (e.g. European law in the European Columbus Laboratory). This legal regime recognises the jurisdiction of the Partner States’ courts and allows the application of national laws in such areas as criminal matters, liability issues, and protection of intellectual property rights. Any conflicts of jurisdiction between the Partners may be resolved through the application of other rules and procedures already developed nationally and internationally.

The rule concerning utilisation of the Space Station provides that each Partner – Europe, the United States of America, Russia, Japan and Canada – may utilise equipment and facilities in or on each other Partner’s elements in accordance with their respective “utilisation rights”. Those rights are defined in the Intergovernmental Agreement (Article 9) and the different Memoranda of Understanding, and state that: “Partners providing International Space Station user elements retain the use of those elements (e.g. research laboratories, such as Columbus)”, and “Partners providing resources and infrastructure elements to operate and use the International Space Station elements (e.g. Canadian robotic arm) receive in exchange a fixed share of the use of certain elements”.

One important point is that ESA and the other Space Station International Partners can barter or sell their unused utilisation rights among themselves and to other non-participants to the Station’s program.

The International Space Station legal framework recognises fundamental liability rules concerning space activities, set forth in international space law treaties, such as the 1972 Liability Convention, and it goes even further. The Intergovernmental Agreement establish a “cross-waiver of liability” which prohibits any of the five Partners or their related entities (contractor, sub-contractor, user, customer) to claim against another Partner (or its related entities) for damage sustained as a result of International Space Station activities (Article 16 of the Intergovernmental Agreement). Each Partner is required to implement this obligation in the contracts with its own contractors and sub-contractors.

Some exceptions to the Space Station cross-waiver of liability exist. For instance, claims arising between a Partner and its own related entities, for example between the European Space Agency and one of its users, will be covered by contracts or sub-contracts that will not implicate the other international Partners. Other exceptions to the cross-waiver of liability include claims for damages caused by wilful misconduct, claims made by a person for bodily injury or death, and intellectual property claims.

The IGA (Article 22) envisages the prosecution of an astronaut “in case involving misconduct on orbit that (a) affects the life or safety of a national of another Partner State or (b) occurs in or on or causes damage to the flight element of another Partner State”. Basis for exercising jurisdiction (i.e. prosecution): nationality of the alleged perpetrator (constitutes a restriction over general rule). As an alternative, the “Victim” Partner States may exercise jurisdiction on a non-national if some conditions are met (failure of the national State to examine possibility of laying charges + mandatory consultations – makes that possibility rather remote).

Concluding remarks on jurisdiction over a multi-component space object

At the heart of the legal regime set up for Space Station cooperation, Article 5 establishes that “each Partner shall retain jurisdiction and control over the elements it registers in accordance with paragraph 1 above and over personnel in or on the Space Station who are its nationals”. It was essential for the drafters of the IGA to establish such a basis for jurisdiction because a number of States participating in this project which adopt a very restrictive attitude to the extraterritorial application of their laws, notably Canada, needed to invoke the specific provisions of an international agreement to justify the extension of their national jurisdiction to the flight elements they would be providing.

This means that the owners of the Space Station – the United States of America, Russia, ESA, Japan and Canada – are legally responsible for the respective elements they provide. They have jurisdiction and control over their space object. This is what we can say about jurisdiction over a multi-component space object.

The liability provisions applicable to the International Space Station are found at Articles 16 and 17 of the ISS Intergovernmental Agreement. Article 16 creates a cross-waiver of liability between the Partner and their “related entities” for damages arising out of activities relating to the building and the use of the ISS: “in the interest of encouraging participation in the exploration, exploitation, and use of outer space through the Space Station”. The purpose of a cross-waiver of liability is to prevent claims by a Partner against the other Partners and their “related entities” for damages arising out of ISS-related activities.