Might ISRO's 2018-004 launch be at least a technical violation of the Outer Space Treaty by India?

Question

The IEEE News article FCC Accuses Stealthy Startup of Launching Rogue Satellites as well as the question What checks are supposed to be carried out to prevent illegal satellite launches? address the possibility that a US company may have had spacecraft launched into orbit without the appropriate approval from the US government.

According to Wikisource (found in this question), Article VI of the treaty states:

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.

Since India is a signatory of the Outer Space Treaty of 1967 and ratified it in 1982, might the launch 2018-004 be at least technically in violation of the treaty by India, if it turns out that there was no evidence of permission from the US government at the time of launch? I don't think that is necessarily addressed by Article VI, (though I'm not sure) but the treaty is extensive.

I'm looking especially for a reference to the part of the treaty that addresses responsibility of the host country for the launch and/or the launch provider, rather than the launch provider itself.

Answer 1

Sorry for being a few weeks late to this, but hopefully I can shed some light on how to think about it.

The ISRO launch of these satellites is legally problematic in several ways.

First, and as already mentioned in the question itself as well as another answer, one key issue here is Article VI of the Outer Space Treaty. For purposes of this launch, a key phrase here is "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." What that means is that when a commercial company wants to do something in outer space, some government has to both (1) give them permission (authorization) to go do that thing, and a government has to (2) continue to assert some regulatory control over those activities (continuing supervision) to ensure that the commercial actor doesn't run around and violate the obligations contained in the Outer Space Treaty. With this launch, ISRO and the Indian Government have not authorized the payload activities, and they certainly have not asserted any kind of regulatory control over their on-orbit operations. Furthermore, India knew, or should have known if they asked, that NO OTHER COUNTRY was going to authorize or continually supervise these operations either, and that the United States had specifically denied permission when asked by the commercial company. So there is a very strong case that India's launch of these satellites does not satisfy the Article VI obligations.

But that's not all. India is also party to the 1974 Registration Convention, which requires "launching states" to register objects launched into outer space in a publicly available registry, and to inform the UN so that other actors can keep track of objects in space. I won't go into the definitions here, but suffice to say that there can be multiple launching states under the treaty; here, potentially India and the United States, since India was the location of the physical launch and controlled the launch vehicle, and the United States because the payload was from a U.S. company. At least one of the launching states has an obligation to register space objects. In this situation, the United States Government had specifically forbidden the company from launching, so they certainly didn't see themselves as on the hook for registering. The only government that made an affirmative decision here to launch these satellites was India, and they have not registered them anywhere. So India is in violation of its Registration Convention obligations as well.

The question of consequences and enforcement leads to a third problem. Generally, the Outer Space Treaty and the other space treaties don't have direct enforcement mechanisms. What they do have, in Article VII of the Outer Space Treaty and elaborated in the 1971 Liability Convention, are rules for liability in the event of damages caused by a space object. India is a party to the Liability Convention. The Outer Space Treaty and the Liability Convention, taken together, provide (very simplified here) for launching state liability for damages caused in orbit if there is "fault", and for absolute liability caused on the ground regardless of fault. If these satellites were to cause damage to other objects in orbit - and remember, the FCC denied them because they were so hard to track - then the launching state or states could be on the hook for huge sums. Theoretically, some might consider both the United States and India to be launching states for liability purposes, but the Liability Convention provides that in a situation with multiple launching states, "the burden of compensation for the damage shall be apportioned between the...States in accordance with the extent to which they were at fault..." These claims can go to international arbitration if they aren't resolved diplomatically. In this situation, the United States Government denied a permit and tried to prevent this launch, while the Indian Government did not seem to do any kind of safety or other due diligence checks. If there were an incident that caused damage, the "fault" - and thus responsibility to pay - seems likely to rest with the Indian Government. Despite that fact, we haven't seen any recognition of the potential legal risk by India, at least not publicly.

Edited to fix typos.

Answer 2

The satellites were launched on a vehicle operated by the indian government, with (at least implicit) permission of India.

This is clearly not a violation of the Outer Space Treaty, it only means that India is now ultimately liable for damages caused by these satellites. If India didn't want to assume liability itself, it should have required the satellite operator to bring a permit issued by another government. They did not, so India it is.

Articles VII and VIII of treaty place the entire mission in India's jurisdiction, not only the launch. The satellite owners beeing based in America is irrelevant to the treaty.

Article VII

[...] each State Party from whose territory or facility an object is launched, is internationally liable [...]

Article VIII

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction [...] while in outer space or on a celestial body.

Answer 3

@SpaceLawyer's answer is accepted but recent news about a nearly one million dollar fine paid to the FCC helps clarify the fact that they flew without permission from the US government further clarifies that the US government hadn't authorized the bees. Since ISRO didn't take responsibility for the bees either, these are unauthorized bees!

TechCrunch's FCC fines Swarm Technologies $900K over unauthorized satellite launch says:

Back in March came the surprising news that a satellite communications company still more or less in stealth mode had launched several tiny craft into orbit — against the explicit instructions of the FCC. The company, Swarm Technologies, now faces a $900,000 penalty from the agency, as well as extra oversight of its continuing operations.

Swarm’s SpaceBEEs are the beginning of a planned constellation of small satellites with which the company intends to provide low-cost global connectivity.

Unfortunately, the units are so small — about a quarter the size of a standard cubesat, which is already quite tiny — that the FCC felt they would be too difficult to track, and did not approve the launch.

[...]The FCC obviously didn’t like this, and began an investigation shortly afterwards. According to an FCC press release:

The investigation found that Swarm had launched the four BEEs using an unaffiliated launch company in India and had unlawfully transmitted signals between earth stations in Georgia and the satellites for over a week. In addition, during the course of its investigation, the FCC discovered that Swarm had also performed unauthorized weather balloon-to-ground station tests and other unauthorized equipment tests prior to the small satellites launch. All these activities require FCC authorization and the company had not received such authorization before the activities occurred.

Not good! As penance, Swarm Technologies will have to pay the aforementioned $900,000, and now has to submit pre-launch reports to the FCC within five days of signing an agreement to launch, and at least 45 days before takeoff.

Near the end it says:

Swarm has worked to put the concerns about tracking to bed; in fact, the company claims its devices are more trackable than ordinary cubesats, with a larger radar cross section and extra reflectivity thanks to a Van Atta array (ask them). SpaceBEE-1 is about to pass over Italy as I write this — you can check its location live here.

---

Hard-to-see bees?

SpaceBEEs are small, as you can see. Credit: Swarm Technologies

Source