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The following question was asked and answered 3 years ago: might ISRO’s launch of Swarm’s satellites in 2018 be at least a technical violation of the Outer Space Treaty?

Recall that the launch in question by ISRO (Jan. 2018) puts satellites of the Swarm Technologies (registered in the US), which satellites were denied their license by the FCC (Sep. 2017), on the basis of insufficient debris mitigation measures.

  • One of the answers to the referred question affirmed that India was in breach of the Treaty as per its Art. VI, with the following reasoning:

What that [i.e. Art. VI] 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.

And

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.

  • The relevant part of Art. VI reads as follows:

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.

  • My question:

Is the text of Art. VI clear enough that we can interpret that the “appropriate State Party” encompasses the state launching the rocket and/or the state from which territory the launch occurred (and not only the US in this particular case)?

Note:
There is no-doubt that India, being the Launching State, is liable for damages resulting from objects put in orbits by Indian rockets and/or by rockets launched from its territory (Art. VII). There is no doubt that India can be accused of negligence (for not verifying the paper work of foreign payloads using its services), applying "common sense". But it would be, in my mind, far-reaching to impose on India the obligation of "continuing supervision and authorization" on Swarm Technologies products and activities.

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I am not a lawyer. Still, I would like to submit this strawman answer to my own question, for you to criticize.

The language of Article VI is open to different interpretations. I can see at least two, and mutually contradicting.

The first, call it the “strict interpretation”, is that ONLY the US can “authorize and continuously supervise” the activities of Swarm Technologies in the Outer Space, for the purpose of the US compliance to the Treaty. This is because Swarm is incorporated in the US and does all its businesses under the US jurisdiction. India can not step in and issue a license to Swarm, even if it is asked by its customer or if it simply wishes to do so. Not only India, but no other state can issue such license. And therefore stating that India is in breach of Article VI is a non-sense, under this interpretation.

The second, call it the “broad interpretation”, is what is expressed in the answer to the original question. Under this interpretation, Swarm could petition another state, for an authorization to have their satellite launched. Of course India is a natural candidate, but we can push the limit of the logic to argue that any state (“some state”) can issue such a license, be it a party or not of the Treaty. If that state is a party of the Treaty, by issuing the license it volunteers to take the international responsibility for the activities of Swarm in orbit, under the terms of the Treaty. But if no state has volunteered to do so, is it compulsory for India, being the Launching State, to either refuse to launch or take the responsibility of “authorization and continuous supervision”? There is nothing in this Article to allow such an interpretation of compulsory obligation.

  • My answer: Article VI is ambiguous as to whether another state than the US could provide an authorization for launch to Swarm. But nothing in the text allows the interpretation that, India being the Launching State, it is in breach of Article VI when it launched Swarm’s four first satellites.
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