Is the International Space Station a launching State?

Is the International Space Station a launching State? This is the question we’ll be trying to answer. Satellites launched from Earth require dedicated launch vehicles to propel them into the proper orbit. The cost for this launch scenario could be reduced considerably if there was another way to get the satellites into their optimal orbit. The Japan Aerospace Exploration Agency (JAXA) found a way to cut the costs of this activity by designing a small satellite launcher, installed recently on the International Space Station (ISS). The International Space Station was designed to be used as both a microgravity laboratory, as well as a launch pad for Low Earth Orbit services. The Japan Aerospace Exploration Agency’s (JAXA) Kibō module, or Japanese Experiment Module (JEM), a Japanese science module for the International Space Station (ISS), includes a small satellite-deployment system called the J-SSOD.

Deploying CubeSats from the ISS has a number of benefits. Launching the vehicles aboard the logistics carrier of the ISS visiting vehicle reduces the vibration and loads they have to encounter during launch. In addition, they can be packed in protective materials so that the probability of CubeSat damage during launch is reduced significantly. In addition, the Low Earth Orbit allows a natural decay of the satellites, thus reducing the build-up of orbital debris.

The International Space Station (ISS)

The International Space Station (ISS) is a space station (also known as an orbital station or an orbital space station, a spacecraft capable of supporting crewmembers, which is designed to remain in space – most commonly as an artificial satellite in Low Earth Orbit – for an extended period of time and for other spacecraft to dock), or a habitable artificial satellite (in the context of spaceflight, a satellite is an artificial object which has been intentionally placed into orbit. Such objects are sometimes called artificial satellites to distinguish them from natural satellites such as Earth’s Moon), in Low Earth Orbit. Its first component was launched into orbit in 1998, with the first long-term residents arriving in November 2000. The ISS, which is expected to operate until 2030, has been inhabited continuously since that date. The last pressurised module was fitted in 2011, and an experimental inflatable space habitat was added in 2016. The International Space Station, which can often be seen with the naked eye from Earth, is the largest human-made body in Low Earth Orbit.

The ISS, which serves as a microgravity and space environment research laboratory in which crew members conduct experiments in biology, human biology, physics, astronomy or meteorology, consists of pressurised habitation modules, structural trusses, solar arrays, radiators, docking ports, experiment bays and robotic arms. ISS components have been launched by Russian Proton (an expendable launch system used for both commercial and Russian government space launches) and Soyuz (a family of expendable launch systems developed by OKB-1 and manufactured by Progress Rocket Space Centre in Samara, Russia) rockets and American Space Shuttles (a partially reusable Low Earth orbital spacecraft system operated by the U.S. National Aeronautics and Space Administration – NASA – as part of the Space Shuttle program).

The ISS, which maintains an orbit with an altitude of between three hundred and thirty and four hundred and thirty five kilometres by means of manoeuvres using the engines of the Zvezda module (the third module launched to the ISS which provides all of the International Space Station’s life support systems, some of which are supplemented in the US Orbital Segment, as well as living quarters for two crew members) or visiting spacecraft, is also suited for the testing of spacecraft systems and equipment required for missions to the Moon and Mars. It circles the Earth in roughly ninety-two minutes at a speed of almost twenty-height thousand kilometres per hour.

The ISS programme is a joint project between five participating space agencies: NASA (United Stes of America), Roscosmos (Russia), JAXA (Japan), ESA (Europe), and CSA (Canada). The ownership and use of the space station is established by intergovernmental treaties and agreements. The International Space Station is divided into two sections, the Russian Orbital Segment (ROS) and the US Orbital Segment (USOS), which is shared by many nations.

The International Space Station’s (ISS) legal status

The International Space Station is a cooperative programme between the United States of America, Russia, Japan, Europe, and Canada for the joint development, operation and utilisation of a permanently inhabited space station in Low Earth Orbit. The legal framework defines the rights and obligations of each of the countries and their jurisdiction and control with respect to their International Space Station elements. The International Space Station legal framework is built on three levels of international cooperation agreements.

1) The International Space Station Intergovernmental Agreement, often referred to as the “IGA”, is an international treaty signed on January 29, 1998 by the fifteen governments involved in the International Space Station project. The IGA, establishing the International Space Station cooperative framework, has been signed by the United States of America, Canada, Japan, the Russian Federation, and ten Member States of the European Space Agency (Belgium, Denmark, France, Germany, Italy, The Netherlands, Norway, Spain, Sweden, Switzerland and the United Kingdom of Great Britain and Northern Ireland). This key government-level document establishes “a long-term international cooperative framework among the Partners, on the basis of genuine partnership, for the detailed design, development, operation, and utilization of a permanently inhabited civil international 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 are assimilated to the territories of the Partners States. Its Article 5 states that “1. In accordance with Article II of the Registration Convention, each Partner shall register as space objects the flight elements listed in the Annex which it provides, the European Partner having delegated this responsibility to ESA, acting in its name and on its behalf. 2. Pursuant to Article VIII of the Outer Space Treaty and Article II of the Registration Convention, 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. The exercise of such jurisdiction and control shall be subject to any relevant provisions of this Agreement, the MOUs, and implementing arrangements, including relevant procedural mechanisms established therein”.

This means that the owners of the Space Station, which are the United States of America, Russia, Canada, Japan, and the European States, are legally responsible for the respective elements they provide. The European States are being treated as one homogenous 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 Partner’s Space Station elements: 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 NanoRacks CubeSat Deployer

The NanoRacks CubeSat Deployer (NRCSD), which “meets the growing demand to deploy CubeSat format satellites from the International Space Station for a variety of customers”, is a device to deploy CubeSats (a type of miniaturized satellite for space research that is made up of multiples of 10 cm × 10 cm × 10 cm cubic units) into Low Earth Orbit from the International Space Station. On NASA’s website, the NanoRacks CubeSat Deployer (NRCSD) is described as “a stackable, modular, ground loaded launch case”.

One method of getting CubeSats to Low Earth Orbit is to transport them aboard a larger spacecraft as part of a cargo load to the International Space Station. When this is done, deploying the CubeSats into Low Earth Orbit as a separate artificial satellite requires a special apparatus, the NanoRacks CubeSat Deployer. The NRCSD is put into position to be grabbed by one of the ISS’s robotic arms, which then places the NanoRacks CubeSat Deployer into the correct position externally mounted to the ISS to be able to release the miniature satellites into proper orbit.

NanoRacks LLC, a private company that develops products and offers services for the commercial utilization of outer space, via its Space Act Agreement with NASA, deployed a CubeSat using the J-SSOD. Seeing the emerging market demand for CubeSats, NanoRacks self-funded its own ISS deployer, with the permission of both NASA and JAXA. NanoRacks evolved away from the J-SSOD due to the small number of satellites that could be deployed in one airlock cycle and their desire to maximize the capacity of each airlock cycle. The J-SSOD used a full airlock cycle to only launch 6U. The NanoRacks CubeSat Deployer uses two airlock cycles, each holding eight deployers. Each deployer is capable of holding 6U, allowing a total of 48U per airlock cycle. A CubeSat is a U-class spacecraft: 1U is one CubeSat, one 10 cm × 10 cm × 10 cm cubic unit.

Is the Space Station a launching State?

Is the Space Station a launching State? Article VII 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 “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 I of the Convention on International Liability for Damage Caused by Space Objects (entered into force on September 1, 1972) affirms that “(b) The term “launching” includes attempted launching; (c) The term “launching State” means: (i) A State which launches or procures the launching of a space object; (ii) A State from whose territory or facility a space object is launched; (d) The term “space object” includes component parts of a space object as well as its launch vehicle and parts thereof”.

Article II of the Liability Convention (1972) enounces also 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”, and its Article III adds that “In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible”.

The question is the following: is the ISS a launching State? Are the United States of America, Canada, Japan, the Russian Federation, and the ten Member States of the European Space Agency (Belgium, Denmark, France, Germany, Italy, The Netherlands, Norway, Spain, Sweden, Switzerland and the United Kingdom of Great Britain and Northern Ireland) 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? Considering that the Japan Aerospace Exploration Agency’s (JAXA) Kibō module, or Japanese Experiment Module (JEM), a Japanese science module for the International Space Station (ISS), is where CubeSats are deployed, is Japan a launching State and therefore 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?

Is the fact that CubeSats are more “deployed” than “launched” from the ISS relevant? Maybe. Considering the technical difficulties to launch and the costs implied by potential accidents, it was important for States to remain liable in case of damages. A “deployment” in Low Earth Orbit from a space station or a satellite (we believe that objects and therefore CubeSats might soon be printed and assembled directly in outer space) is not as a technical operation as “launching” from Earth is. Maybe, in a near future, “deployments” of objects built in outer space will be seen as “launches” of objects built on Earth. For example, a private American company building objects in outer space might, because “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 VI of the Outer Space Treaty), engage the United States of America’s responsibility in case of a deployment causing damages.

What about when a CubeSat is launched from Earth by an American private company and then deployed in Low Earth Orbit by a deployer developed by a private company and operated from a Japanese module on a space object administered by five different space agencies…? Is the Space Station a launching State? Who’ll become the launching State? The United States of America, because the CubeSat was assembled on Earth and launched from Florida by SpaceX? The United States of America, because the private NanoRacks company’s main office is in Houston, Texas? Japan, because the CubeSat was deployed from the Japan Aerospace Exploration Agency’s (JAXA) ISS Kibō module? The United States of America, Canada, Japan, the Russian Federation, and the ten Member States of the European Space Agency (Belgium, Denmark, France, Germany, Italy, The Netherlands, Norway, Spain, Sweden, Switzerland and the United Kingdom of Great Britain and Northern Ireland) because the CubeSat was deployed from the ISS?

Our guess is that, when built in outer space and deployed from outer space (and from the same “space object”), the launching or “deploying” State (and therefore potential questions raised about liability) will be the one under which the private or public activity is carried on. We are in the presence of a new and complete space operation, and not the continuation of an Earth-to-outer-space operation. The operation might be legally framed by a special new type of “building and deployment contract”.

In a case where a CubeSat is launched from Earth and deployed from a Japanese module of the ISS, it is more complicated. We are in the presence of the continuation of an Earth-to-outer-space operation. There is a launch contract and then, a deployment operation. We could even consider the launch contract a contract of carriage, a transport contract. Then, a deployment operation. Is there a deployment contract? If not, we could assimilate the deployment as the continuation of the launch and therefore, the launching State would remain the State from which the CubeSat was launched. When satellites are reorbited, they are not relaunched; a deployment could legally be assimilated to a reorbiting. If there was to be a deployment contract, the “launching State” might become Japan, or the State(s) under which this activity of “deployment” is carried on.

Concluding remarks: is the Space Station a launching State?

As outer-space-activities develop, we might in the coming years assist to new ways of orbiting, and therefore, new laws and new space contracts. That is what we can answer about the question Is the Space Station a launching State?.

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