The Life Changing Magic of Tidying Way Up High

This is not a post about Marie Kondo’s system of getting rid of the clutter in your life. This post addresses a legal point in a New York Times article about an innovator in Japan who wants to address a different kind of clutter, orbital debris:

Mitsunobu Okada, aspires to be more than an ordinary garbageman. Schoolroom pictures of the planets decorate the door to the meeting room. Satellite mock-ups occupy a corner. Mr. Okada greets guests in a dark blue T-shirt emblazoned with his company’s slogan: Space Sweepers.

Where others are looking at tethers, robotic arms, space tugs, laser brooms, and other exotica, Mr. Okada plans to use something far more simple and light weight to trap space debris: glue. The article provides a nice, capsule summary of the debris environment and problem, and makes clear the need for some action, but I want to focus on a mischaracterization of treaty law.

[Mr. Okada] said that if a company has a thousand satellites, several are bound to fail. Astroscale will remove these, allowing the company to fill the gap in its network by replacing the failed unit with a functioning satellite.

“Our first targets won’t be random debris, but our clients’ own satellites,” he said. “We can build up to removing debris as we perfect our technology.”

He said this approach would also get around a hurdle in international law to the removal of space debris — the required permission of the owner. Under a 1967 treaty, man-made objects in space belong to the countries that launched them, and cannot be touched without approval.

The legal point that merits clarification applies to ownership. The 1967 Outer Space Treaty does not say that “man-made objects in space belong to the countries that launched them, … .” (Emphasis added).  Instead, Article VIII of the treaty says that “[o]wnership 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 Earth.” In other words, if Mary launches a harp to play on the moon, Article VIII only states that her ownership of the harp does not change merely because the harp is on the Moon. It’s still her harp.  If Mary is Australian and she launches her harp from the United States, ownership does not transfer to the U.S. government.

The article may be confusing ownership and liability, because Article VII says that each signatory state from whose territory 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….”  Alternatively, the article may be confusing ownership with “jurisdiction and control,” for Article VIII does say that a country on whose registry an object launched into outer space is carried shall retain jurisdiction and control over that object and any personnel. Because the Registration Convention requires a launching state to register space objects, the launching state is supposed to retain jurisdiction and control.  However, neither jurisdiction, control, nor liability are the same things as ownership.

As someone who avidly supports the private sector’s involvement in space, it’s exciting to see people such as Mr. Okada with this kind of business plan.  In addition to the desire to replace a dead satellite, legal incentives may encourage satellite operators to work with him.  After all, despite a launching state’s liability exposure under the Liability Convention, nothing prevents the launching state from demanding redress from the entity which caused the damage.  Thus, the owner of a satellite faces its own liability exposure.  De-orbiting could retire both the satellite and that risk.  True, the risk of reentry and any damage arising out of it creates its own risk, but that would be another factor to weigh in the analysis as to what the best course of action might be.

 

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