Despite having been operational for over 15 years, the satellites NSS-6 and NSS-7 are missing from the United Nations Register of Objects Launched into Outer Space (‘International Register’). Just as we do not accept unregistered cars on our roads, we should not accept unregistered space objects in orbit. Registration ensures that the state responsible for a specific space object can be readily identified, and, if necessary, presented with a claim under the Convention on International Liability for Damage Caused by Space Objects.
For this reason, under the international space object registration regime, all space objects must be registered by a state. So which state is shirking their duty to submit NSS-6 and NSS-7 to the International Register?
The two satellites were built by Lockheed Martin Commercial Space Systems (‘Lockheed Martin’), a United States-based corporation, for New Skies International NV (‘New Skies’), a Dutch corporation. Launch services were provided by Arianespace SA (‘Arianespace’), a French corporation. Both launches took place from French territory. Once in orbit, ownership of the satellites was transferred from Lockheed Martin to New Skies. So at least three states are involved – and the question is which of these states should register NSS-6 and NSS-7 (spoiler alert: I think it’s the Netherlands). This episode is used as a case study to illustrate the ambiguities and gaps that exist in the international space object registration regime. I conclude the post by making a proposal which seeks to find a way to close these gaps.
The International Space Object Registration Regime
First, a primer on the international space object registration regime. Our key source here is the Convention on Registration of Objects Launched into Outer Space (‘Registration Convention’).
The Registration Convention (and space law more generally) is predicated on the concept of the ‘launching state’, which is defined as the state that:
- “launches or procures the launching of a space object”; or
- “from whose territory or facility a space object is launched.”
Under this definition, a single space object can have multiple launching states. And the Registration Convention provides the mechanism by which these launching states can be identified, by legally associating space objects with states in the International Register. Its key provisions are as follows:
- Article II(1) requires that states must record each space object for which they are the launching state in a national register, thereby becoming the “state of registry” for that space object.
- Article II(2) states that if there are multiple launching states in respect of a single object, those launching states must jointly decide which one of them will become the state of registry.
The Registration Convention also requires that each state of registry must report information from their national register to the United Nations. This information is then compiled into the International Register.
A Qualified Success
The United Nation’s Office of Outer Space Affairs (‘UNOOSA’) claims that “over 90% of all satellites, probes, landers, crewed spacecraft and space station flight elements” appear on the International Register. However, the Online Index of Objects Launched into Outer Space (‘Online Index’), maintained by UNOOSA, currently lists over 700 unregistered space objects. More than half of these unregistered space objects remain in orbit. Most cases of non-registration are likely a mixture of deliberate and inadvertent non-compliance, as detailed by Jakhu, Jasani and McDowell.
But how did two globally-important satellites, NSS-6 and NSS-7, miss out? These two satellites, I argue, have fallen into one of the many gaps that plague the international space object registration regime: namely, the gap that arises when multiple states participate in a single launch.
Who Launched NSS-6 and NSS-7?
NSS-6 was launched on 17 December 2002. NSS-7 was launched on 16 April 2002. Both were delivered in-orbit to New Skies. Now, we know that France, the United States and the Netherlands are involved in NSS-6 and NSS-7 – but are all three states launching states?
Both satellites launched from French territory, so France is clearly a launching state. But, by virtue of the activities of Lockheed Martin and New Skies, are the United States and the Netherlands also launching states?
To answer this question, it is first necessary to determine whether a private corporation that launches or procures the launch of a space object renders their state of incorporation a launching state. This is unsettled law. However, as von der Dunk explains, one interpretation of 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 (‘Outer Space Treaty’) is that states bear international responsibility for their outer space activities – including the outer space activities of private corporations that are subject to their jurisdiction or control. Article VI provides 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.
Accepting, as I do, the broad interpretation of Article VI, both the United States and the Netherlands appear to be launching states in respect of NSS-6 and NSS-7. The grounds for this are that both Lockheed Martin and New Skies “procured” the launch of NSS-6 and NSS-7 for the purposes of the Liability Convention and the Registration Convention by, respectively:
- building the satellites and entering into the launch contracts with Arianespace; and
- ordering the satellites and accepting delivery from Lockheed Martin.
But who should Register NSS-6 and NSS-7?
Among the three launching states, there is a strong argument that the Netherlands should be the satellites’ state of registry. After all, New Skies was the ultimate owner of both NSS-6 and NSS-7. Further, this view aligns with the limited state practice in this area: states that only provide services in respect of foreign-owned space objects do not generally register those space objects. UNOOSA apparently agreed with this view, as they initially marked both NSS-6 and NSS-7 as “for [the] Netherlands” in the Online Index.
However, the Netherlands did not agree. In a note verbale, the Netherland expressly denied being a launching state or the state of registry for these two satellites. Rather, the note stated that NSS-6 and NSS-7 were both delivered to New Skies “after they were launched and positioned in orbit by persons that were not subject to the jurisdiction or control of the Kingdom of the Netherlands.”
In my view, the Dutch position is contrary to the breadth of the word “procure”. Indeed, Lockheed Martin’s own press release for NSS-6 clearly states that the satellite was built “for New Skies”. Further, the note did acknowledge that the Netherlands “bear[s] international responsibility” for NSS-6 and NSS-7 in accordance with Article VI of the Outer Space Treaty. This confirms the broad interpretation of Article VI of the Outer Space Treaty in respect of private corporations – and strengthens the argument that the Netherlands should be the state of registry.
Nonetheless, what NSS-6 and NSS-7 clearly show is the gap in the international space object registration regime in respect of multiple launching states. The global commercialisation of space activities means that space objects are increasingly jointly-launched. So how can we close this gap?
NSS-6 and NSS-7 illustrate the failure of Article II(2) of the Registration Convention to facilitate the registration of jointly-launched space objects. This failure is caused by the lack of guidance as to which of the launching states should be the state of registry for a jointly-launched space object. It would be better and clearer if the state from whose facility or territory the space object was launched from was regarded as the “de facto” state of registry, unless another launching state agrees to register the space object. However, in cases where there is a facility on foreign soil – like the Baikonur cosmodrome that is operated by Russia in Kazakhstan – the state operating the facility at the time of launch should be the state of registry.
The advantage of making the launch providing state the de facto state of registry is that the territory and facilities from which launches occur are relatively easy to identify (excluding, for present purposes, consideration of air, sea and space launches).
How would this adjustment to the international space object registration regime have affected NSS-6 and NSS-7?
As I see it, France, not wanting to register the two satellites, would have required that Arianespace’s launch contracts compel Lockheed Martin to procure registration of NSS-6 and NSS-7. (Modern launch contracts already address this point – see clause 16 of SpaceX’s Falcon 9 launch contract).
For its part, Lockheed Martin, aware that the United States Government was unlikely to register a payload with only a weak connection to the United States, would have made make it a term of the turn-key contracts that New Skies procure registration.
In turn, New Skies, before signing the turn-key contracts with Lockheed Martin, would have sought assurances from the Netherlands that they would register NSS-6 and NSS-7. The result: NSS-6 and NSS-7 would appear on the International Register – and one of the many gaps in international space object registration regime would be filled.
The Way Forward
There are many different ways this proposal could be put into effect. Amending Article II(2) of the Registration Convention to designate the launch providing state as the de facto state of registry would create binding obligations on those states.
However, in accordance with Article IX, for an amendment to enter into force a majority of states parties to the Registration Convention must accept the amendment. And, once in force, the amendment would only apply to those states parties that actually accepted it. So the launch providing states, in order to avoid binding themselves as de facto states of registry, would likely not accept the amendment, thereby rendering it inefficacious.
Fortunately, there is precedent for an alternative. In 2007, the United Nations General Assembly adopted a resolution “recommending” that states submitting space objects to the International Register include, in addition to the five information types required under the Registration Convention, four further types of information. A similar recommendation, in resolution form, could be used to promote the idea that the launch-providing state should be the de facto state of registry.
But, regardless of method, it’s time to start closing the gaps in the international space object registration regime. As access to outer space expands, the Earth’s orbits are becoming increasingly crowded (and contested). The chances of collisions and disputes are rapidly increasing – and an accurate and complete International Register is one of the best tools we have to promote transparency and accountability in outer space activities.