Earlier this year, a Silicon Valley start-up called Swarm Technologies used an Indian launch vehicle to place four experimental satellites in outer space. This was despite the U.S. Federal Communications Commission refusing Swarm a license on safety grounds. These ‘rogue satellites’ appear to be the first ever unauthorized commercial satellites in outer space. Douglas Loverro, former Deputy Assistant Secretary of Defense for Space Policy, is right to avow it is in the national security interest of the U.S. to encourage an innovative commercial space sector. However, this arresting incident raises several legal and policy issues that should be of interest to all those involved in the future utilization of outer space.

The Federal Communications Commission (FCC) is currently responsible for licensing U.S. communications satellites. In April of last year, Swarm filed its first application with the FCC for a test fleet of four satellites to be known as ‘BEEs’. With each satellite being a quarter the size of a standard 10 cm cube, or ‘CubeSat’, the SpaceBees were judged to be too small to be reliably tracked in space. The FCC letter that refused Swarm a license concluded that the launch of the SpaceBees would not be in the public interest due to the potential threat to satellites already in orbit. However, a manifest released by the Indian Space Research Organisation appears to confirm the satellites formed part of the secondary payload of a rocket launch from Sriharikota, India on January 12. The FCC have not penalized Swarm to date. However, in what has been described as a clear response, the FCC has recently issued a generic Enforcement Advisory. The Advisory affirms that licensing is an important aspect of ensuring that the U.S. satisfies its treaty obligations and, in particular, those emanating from the Outer Space Treaty (OST). The OST is the cornerstone of the international legal framework for outer space. Article VI of the OST deals with the issue of State responsibility:

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.

Under international law, States are not responsible for the acts of their private citizens unless they instruct, direct, control, or adopt, the act in question. Article VI is, therefore, exceptional as it dictates that non-governmental national space activities should be assimilated to governmental space activities. In other words, the activities of U.S. corporate actors in space should trigger the international legal responsibility of the U.S. government. Moreover, as former U.S. State Department Legal Adviser Brian Egan has opined, States have an affirmative legal obligation to supervise such activities and ensure their conformity with the Treaty. That being the case, have the actions of Swarm resulted in the U.S. being in breach of its international legal obligations under the OST?

To answer that question, it is first necessary to determine what “national activities” encompass for the purposes of Article VI. In reliance on Article IX of the OST referring to “activity or experiment planned by [a State] or its nationals in outer space,” some scholars taken the view that a State is merely internationally responsible under Article VI for the space activities of all its nationals (whether individual or corporate). An alternative view regarding “national activities” is to equate this with activities over which the State can exercise some form of generally recognized jurisdiction; whether territorial, quasi-territorial or personal. Such an interpretation would mean there could be several States that are internationally responsible for a single act under Article VI. In the case of the SwarmBees, this approach would mean that the activities of Swarm would be considered national activities of the U.S. since the U.S. can evidently exercise jurisdiction over its own corporate entity. Since the Commercial Space Launch Act 1984 (as amended) extends U.S. control and supervision of certain space activities to U.S. territory and U.S. nationals operating globally, this would at least indicate the U.S. takes a relatively broad approach to what is meant by “national activities.”

Having briefly explored two of the principal views on what “national activities” means for the purposes of the OST, it is certainly arguable that the activities of Swarm would be assimilated to the U.S. Government. However, that is not to say that the U.S. is in breach of its international obligations under Article VI.

First, despite their diminutive size, the SpaceBees being in orbit does not ipso facto amount to a breach of any of the terms of the OST. Article IX of the OST requires the U.S. to conduct all activities in outer space with ‘due regard’ to the corresponding interests of all other States Parties to the Treaty. There is debate over the parameters of the ‘due regard’ principle, however, it is suggested that having such small satellites in space and the attendant risk of tracking and conjuncture should not trigger a breach of the OST in this instance. Indeed, the FCC authorized the deployment of 128 spacecraft smaller than the SpaceBees (known as Sprites) in 2014. Though one could argue to the contrary, based on a broader reading of Article IX and a more holistic assessment of risk to other spacecraft, it would seem clear that State practice to date would not support an interpretation of that Article which would compel the removal of the SpaceBees.

In terms of whether the U.S. has breached the Article VI duty to “assure” that national activities are carried out in conformity with the OST, most notably through “authorization and continuing supervision,” this must be done by “the appropriate State Party to the Treaty.” Though the SwarmBees were launched from Indian territory via an Indian launch vehicle, it is suggested that the U.S. should still be considered the appropriate State to supervise Swarm in future. Any alternative argument would have to explain why Swarm is still currently being supervised by the FCC, not least through revoking its authorization for a follow-on mission for four more satellites in orbit. That being so, it is nevertheless suggested that the U.S. should not be viewed as in breach of Article VI due to the SpaceBees being unauthorized. There was no absence of a mechanism for the U.S. Government to ensure that the proposed activities would be carried out in conformity with the Treaty. Instead, Swarm appear to have simply ignored a license refusal. Given this case is said to be with the FCC’s enforcement bureau, to argue the U.S. is in breach of Article VI would apply too literal an interpretation of that provision.

Article 31(1) of the Vienna Convention on the Law of Treaties sets out the general rule of treaty interpretation. Article 31(1), which reflects customary international law, provides that a treaty, such as the OST, 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.” The object and purpose of the relevant segment of Article VI is to ensure oversight of non-governmental space activities. The FCC has exercised this task on behalf of the U.S. Government, so thoroughly in fact that it refused Swarm a license on safety grounds. That being so, the U.S. should not be viewed as having violated international space law through the actions of Swarm.

A separate and yet related question is whether the U.S. would be liable to pay compensation if the SwarmBees caused damage to third parties in outer space. Though still considered unlikely, this is not an academic exercise given the grounds on which Swarm were refused a license. Article VII of the OST is the starting point for assessing liability for activities in outer space and links liability with ‘launching State’ status. However, the U.S. view on Article VII has historically been that securing compensation through it alone would at best prove obscure. For this reason, the U.S. introduced the first proposal for an international convention on liability for space vehicle damages. This U.S. proposal matured into the 1972 Liability Convention, which provides that a State becomes a ‘launching State’ in one of four ways: (1) by launching an object into space; (2) by procuring the launch of an object into space; (3) if its territory is used for launch; or (4) if its facilities are used for launch. A State Party to the Liability Convention fitting into any of these categories may be internationally liable for damages caused by the launched object or its component parts.

It is apparent that despite the similarity and overlap between the concepts of responsibility and liability, international space law applies discrete and disparate rules of attribution. As we have seen, attribution in the context of international responsibility is achieved through the medium of “national activities.” With respect to liability, attribution is achieved through the concept of the ‘launching State’. As the Swarm incident vividly highlights, there can be multiple launching States. India is clearly a launching State under the Liability Convention on account of its territory being used and by placing the SpaceBees into orbit via an Indian launch vehicle. However, though the exact contours of what it means to ‘procure the launch’ of a space object are ‘contested and unclear’, a reasonable argument can be made the U.S. would, legally, also be considered a launching State under this criterion. Where there is more than one launching State, the Liability Convention holds those States Parties jointly and severally liable for any damage caused.

To make the argument the U.S. is a ‘launching State’, that concept must be read through the prism of Article VI of the OST. That is to say, since the activities of non-governmental entities should be assimilated to State activity under Article VI, the U.S. government is deemed to have procured the launch of the SpaceBees for the purposes of the Liability Convention. A sizeable number of commentators contend that Article VII cannot be read another way. States such as the Netherlands, however, are of the view that a private satellite operator procuring the launch of a space object cannot trigger liability for a State under the Liability Convention.

The Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS) were tasked with looking at the ambiguity recognized as present in the concept of the “launching state.” They indicated the actual practice of States was an authoritative expression of that term’s meaning. The U.S. could, then, reason it is not liable for any damage caused by the SpaceBees under the Liability Convention on the basis it is not a launching State. Such a position would not be surprising given that over the years States have developed divergent interpretations of both the conditions and consequences of being a launching State.

If the U.S. were to adopt such a position, any residual risk deriving from uncertainty over the concept of ‘launching State’ could be managed through a bilateral agreement with India. In this instance, such an agreement would presumably need to work retrospectively. The U.S. has used such agreements previously to apportion risk, perhaps most strikingly in a Memorandum of Agreement under which China committed to compensate the U.S. in the event any amounts becoming payable under the Liability Convention. Such an approach is uncontroversial in this context, with the UN General Assembly even encouraging such bilateral agreements. If the U.S. were to enter into such an agreement it would be prudent to include any claim brought outside the Liability Convention, whether through domestic courts or, as Frans von der Dunk has suggested, via Article VI of the OST.

Scott Pace, Executive Secretary of the National Space Council, has outlined that the U.S. needs “to engage with the international community to shape ambiguities that remain in the Outer Space Treaty and the existing international legal regime.” The discussion above regarding the concept of ‘launching State’ is illustrative. However, the discussion in the U.S. has recently centered on its implementation of Article VI of the OST. This is due to the emergence of new private space capabilities revealing gaps in current U.S. law and regulations. A letter from the Executive Office of the President in 2016 highlighted how the U.S. utilizes license conditions to implement its international obligations under Article VI but that there is “no clear path” at present for authorizing activities such as on-orbit servicing of satellites. Earlier this year the NSC issued recommendations that included a call for the development of a ’streamlined’ scheme to plug this gap.

According to SpaceNews, Swarm’s decision to launch without FCC authorization sent chills through the satellite industry as it feared a backlash in the form of tighter regulations. Given the lack of precedent, the actions taken by the FCC against Swarm will be closely observed both domestically and internationally. However, it is suggested that tighter national regulation is not required due to this one incident. It is in industry’s best interest to identify norms of responsible behavior and to hold each other to those standards. Satellite owners, launch services providers and launch operators all have a role in ensuring processes are in place to prevent a repeat incident. The actions of Swarm should not be viewed as having surreptitiously resulted in the U.S. breaching Article VI of the OST. The issue of liability is less straightforward but does serve to illustrate the surfeit of uncertainty over so many key aspects of international space law.

From a policy perspective, the polysemic nature of the OST’s provisions are potentially advantageous. For example, Congress passed the 2015 U.S. Commercial Space Launch Competitive Act to propel entrepreneurship in space and encourage commercial space mining. Though the U.S. position has been consistent, it is said to be controversial whether the OST prohibition on national appropriation in space allows for such activity. My personal view is that the Act is not inherently inconsistent with the OST but the broader point is that the high level of generality endemic in that Treaty gives States much latitude in interpretation. That is why an important part of international collaboration is emphasizing norms and guidelines for space. As Madelyn Creedon has stated, practices that promote the responsible use of space will help ensure a space environment that is stable, safe, secure and sustainable. Let us hope that the launching of ‘rogue satellites’ stimulates an efficacious leap towards that aim.

The author is a serving member of the Royal Air Force Legal Branch. The views expressed in this article are those of the author alone and not those of the RAF, the UK Ministry of Defence or the UK Government.