Brief background
Space as an entity has tickled the curiosity of mankind since times immemorial, with various theories emanating from time to time. With the passage of time, technological developments have enabled exploration of this unknown entity by mankind. However, in order to ensure an equal playing field, establishment of effective policies and regulations have taken place over time. This has been further necessitated in recent times due to the rapid increase in private or non-state participation in space activities, thus begging the question whether the Outer Space Treaty, which is the primary source of international space law, is sacrosanct and comprehensive enough in this fast-changing landscape with the infusion of private players in this earlier exclusive domain of State agencies.
This article looks into a very niche sub-set of this increasing debate i.e. analyse the interpretation of the phrase “procures the launch” in the definition of “launching State” in Article VII of the Outer Space Treaty and Article 1(c) of Liability Convention and its effect on launches procured by a government actor or a private actor within a nation’s territory vis-à-vis a private actor carrying out a launch in overseas territory. The afore-said discussion in necessitated due to there being divergence in the interpretation of the afore-mentioned treaties between the United States of America (“USA”) and Europe which are have been the frontrunners both in terms of Space exploration and regulation. While the USA has adopted a more conservative interpretation and kept non-state actors out of its realm, the same needs be revisited with the proliferation of private entities undertaking Space exploration like Space X and Blue Origin. This piece attempts to do the same by looking into the interpretations adopted by the USA, Europe and India and suggesting the way forward for USA in this regard.
Therefore, the first step in this analysis is to look at the definition of ‘launching state’ which is defined in Article VII of the Outer Space Treaty as “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 or in outer space, including the moon and other celestial bodies.”. A reading of the above would demonstrate that the purpose of Article VII of the Outer Space Treaty and Article 1(c) of Liability Convention is to place international responsibility and liability on at least one state party to the treaty for each object that is sent into space. The issue therefore, which arises for consideration is what is to be done when a private actor launches something into space?
The position in the USA and Europe:
The American interpretation of these Articles generally assumes the definition of a “launching state” to mean any state party to the Outer Space Treaty or the Liability Convention that launches or procures the launching of an object into outer space, and any State from whose territory or facility an object is launched. It has not explicitly acknowledged non-state actors such as private space research companies or a natural person (citizens of that state) under its jurisdiction to be included in the definition if said launch is carried out outside USA territory to limit its liability exposure.[1]
As opposed to the American interpretation, the European interpretation of “procures to launch” encompasses launches which are procured by European non-state actors even if the launch is carried out outside the jurisdiction of that particular state. The afore-said difference in interpretation has its roots in the French version of Article VII of the Outer Space treaty which when translated to English, additionally uses the phrase “which launches or causes to be launched”.
In other words, most European states interpret “procures the launch” to encompass launches procured by European private persons even if said launch is carried out outside its own jurisdiction.
Therefore, while the European States have been more forthcoming in regard to ownership of international liability on the part of their non-state actors with regard to launches in space, the USA has been more sheltered in its approach to enact legislation ascribing liability to any launch, private or otherwise, carried out extra-territorially (outside the US). This is of importance due to the fact that since USA is one of the biggest players in the arena of space exploration, especially with the proliferation and rise of SpaceX and Blue Origin, the development of international space law has taken a back seat due to its conservative stance.
The position in India:
Over the years, India has made rapid strides in the arena of space exploration. The success of its recent Chandrayaan 3 launch and successful landing is testament to this statement. Indian Space Research Organization (hereinafter “ISRO”) which is a state entity has been at the forefront of this success. However, private players in some or the other capacity are involved in these developments. ISRO issues tenders to various private players in order to facilitate both its commercial and research endeavours. Furthermore, with the establishment of the Indian National Space Promotion & Authorization Center (IN-SPACe), which is an independent body constituted by the Government of India, under the Department of Space (DOS), any rocket launch (orbital or sub-orbital) from Indian or overseas territory can be carried out only with authorization from IN-SPACe. The inclusion of ‘overseas territory’ reflects India’s cognizance of its liability under international space law even when the spaceflight in question is carried out abroad by a company headquartered in India.
Suggested changes to the legal regime of the United States:
In the context of the above, it is suggested that it would be prudent for the USA to also make certain amendments to its current legislations vis-à-vis the interpretation of the Outer Space Treaty. It is suggested that in the event of there being any government involvement in private launches which are carried out by non-state/private actors even in outside the territorial jurisdiction of the USA with financial and/or logistical support from the USA in any manner whatsoever, then also the USA should be considered a ‘launching state’ along with the other state in question for the purposes of assignment of liability. This would in turn provide a clear demarcation that facilitates both private space exploration as well as the maintenance of an international standard of safety, fairness, and equity under international space law under the realm of state supervision and responsibility.
It may also be prudent for the USA to look into and incorporate assignment of joint and several liability on both itself as well as the other state where the launch is being carried out, in order to make its space regulations and policies forward looking and on the same lines to Europe and India.
References
- Amanda Robert, “Space Laws Need To Balance ‘Competing Interests’”, Forbes.Published on June 26th, 2017. ↑
(This article has been authored by Advik Rijul Jha, a practising Advocate. Advik is currently a Law Researcher with the Delhi International Arbitration Centre (DIAC), High Court of Delhi)
CITE AS: Advik Rijul Jha, ‘Synchronising the interpretation of Article VII of the Outer Space Treaty and State Obligations with the growth of Private Players in Space‘ (The Contemporary Law Forum, 29 November 2023) <tclf.in/2023/11/29/synchronising-the-interpretation-of-article-vii-of-the-outer-space-treaty-and-state-obligations-with-the-growth-of-private-players-in-space/> date of access