- Anja Nakarada PečujlićAnja Nakarada PečujlićInstitute of Air, Space, and Cyber Law, University of Cologne
The adoption and entering into force of the 1975 Convention on Registration of Objects Launched into Outer Space (also known as the Registration Convention) was another achievement in expanding and strengthening the corpus iuris spatialis. It was the fourth treaty negotiated by the member states of the United Nations Committee on the Peaceful Uses of Outer Space (UN COPUOS) and it represents a lex specialis to the Outer Space Treaty (OST), elaborating further Articles V, VIII, and XI of the OST. Article V OST deals with safe and prompt return of astronauts in case of distress or emergency landing to the state of registry of their space vehicle, which is then further defined in the Registration Convention. Article VIII OST only implied registration and provided for the consequences thereof, namely in respect of exercising jurisdiction and control over a registered space object. However, the Registration Convention specified the ensuing obligations and regulated the necessary practical steps of space objects registration. The Registration Convention also complements and strengthens Article XI OST, which stipulates an obligation of state parties to inform the secretary-general of the nature, conduct, locations, and results of their space activities in order to promote international cooperation.
The prevailing purposes of the Registration Convention is the clarification of “jurisdiction and control” as a comprehensive concept mentioned in Article VIII OST. In addition to its overriding objective, the Registration Convention also contributes to the promotion and the exploration and use of outer space for peaceful purposes. Establishing and maintaining a public register reduces the possibility of the existence of unidentified space objects and thereby lowers the risk of putting, for example, weapons of mass destruction secretly into orbit. Notwithstanding these important objectives, the negotiation history of the Convention and its lower number of ratification compared to the previous three space treaties testify to the numerous challenges that surround registration. The mandatory marking of space objects was one of the most heated points of debate between member states during the drafting of the Convention in the 1970s. Member states had conflicting views, depending on whether they were launching states or potential victims of launch failures. Additionally, questions on whether there should be one central or several registers and whether the type of information to be registered should be obligatory or optional were also pivotal in the discussion. It took five years of negotiation for member states to reach compromises and to adopt the Registration Convention, containing 12 articles. The articles covered issues ranging from registration procedure and different registries to amendments and withdrawal from the Convention. In addition, the following novelties were introduced: a new definition on “state of registry” was included; the “Moscow formula” was abandoned as the depositary was moved to the UN; and the “in five years review” clause found in Article X signified that the drafters were anticipating that technological developments could have such an impact on the Convention’s provisions that shorter time span between reviews were required than in previous space treaties.
Despite the Convention’s novelties and its objective to protect the attribution of jurisdiction and control on the basis of a registry, as well as to ensure the rights provided in the Liability Convention and the Rescue and Return Agreement by offering means to identify space objects, the articles dealing with joint launch registration and registration by Intergovernmental Organizations (IGOs) are seen as weakening jurisdiction and control concept. Due to the fact that jurisdiction and control stay only with the state of registry, the other launching states may only conclude appropriate agreements to retain any of these rights. Thus, international responsibility and liability remain with all the launching states, but jurisdiction and control only with the state of registry. Furthermore, in the case of an IGO, the IGO does not have the sovereign authority to exercise jurisdiction and control, thereby raising the question who could do so instead of or on behalf of an IGO. In this regard, the Convention leaves important areas unregulated. In the following years, there were proposals to expand the Registration Convention to encompass other subject matters such as financial interests of assets in outer space; however, up until today, these issues remain regulated only by the UNIDROIT Space Assets Protocol.
With the deposition of the U.S., French, Bulgarian, Canadian, and Swedish ratifications with the Secretary-General (SG) of the United Nations (UN) on September 15, 1976, the Convention on Registration of Objects Launched into Outer Space (COPUOS; referred to from this point on as the Registration Convention) came into force. This signified another landmark for the international space community, as in a little more than a decade four space treaty was successfully negotiated and entered into force. By the start of the 21st century, the Registration Convention included 69 state parties and four International Organizations that declared adherence to the rights and obligations under the Convention.
The overarching and primary purpose of the Registration Convention is to further advance and promote exploration and use of outer space for peaceful purposes, as set out in the magna carta for space activities, the Outer Space Treaty (OST). This is not unique for the Registration Convention. Common to all the treaties that followed the OST is that they essentially further develop already established principles. In this manner, the treaties provide more clarity and precision on the rights and obligations of states with respect to the conduct of space activities. Hence, the Registration Convention, as well as the Agreement on the Rescue and Return of Astronauts and the Return of Space Objects (ARRA) and the Liability Convention (LIAB), define responsibilities and put constraints on the exploration and use of outer space. The Registration Convention builds upon two provisions of the OST. According to Article V OST, state parties are required to safely and promptly return astronauts in the case of an emergency landing to the state of registry of their space vehicle. Furthermore, Article VIII OST stipulates that a state party on whose registry an object is launched into space retains jurisdiction and control over that object and personnel thereof and such objects shall be returned to the state of registry if found beyond its limits. The simple reference to a “registry” in Articles V and VIII OST is elaborated in the Registration Convention, and the need to establish both national and international registries was thereby created (Lyall & Larsen, 2018). By registering its object, a state, in addition to the precision of rights and obligations, also contributes to the safety of space activities, and in the future as a prerequisite, it could serve for a better space traffic management. Although registration information cannot be used to track objects, as it is not the same as real-time positioning information, orbit information can help for identification purposes (Schmidt-Tedd & Tennen, 2013). In this manner, prescribed identification of objects by the Convention aims to avoid repercussions of having unidentified objects in outer space, and it also helps in enforcing the Liability Convention (Jasentuliyana & Lee, 1981). Thus, the Registration Convention is closely interlinked to the three predecessor treaties, which together form a “package” of important issues of space law.
Genesis of Space Object Registration
The discussion about the need to disclose launching information started already during the International Geophysical Year (IGY; 1957–1958). The IGY encouraged the practice of sharing pre-launch information (Schmidt-Tedd & Gerhard, 2005, p. 2). As scientists from all around the world gathered for the IGY and decided to launch satellites as a collaborative scientific missions, they also agreed that there should be a set of guidelines that would provide information on such launchings. The rationale behind was that timely information could help accomplish scientific goals. After the IGY, the Committee on Space Research (COSPAR) was formed in 1962 and took over the IGY’s rocket and satellite data centers. COSPAR built upon the IGY guidelines and issued its own set of rules for launching scientific missions, thereby paving the way for cooperation and sharing of information for all types of launchings (Galloway, 1975).
In the UN context, the need for the registration of space objects was raised in the ad hoc COPUOS in 1959 (UN Doc. A/4141, 1959). Awareness that there are many issues surrounding registration and at the same time the estimate that the number of launched space objects will only progressively increase, influenced the UN General Assembly (GA) Resolution 1721 (XVI)B of 1961. This Resolution called upon member states to provide information regarding launching on a voluntary basis, and it entrusted the Secretary-General (SG) to maintain a public registry of all the information received. Nine states (Australia, Canada, Federal Republic of Germany, France, Japan, Italy, the Soviet Union, the United Kingdom, and the United States) followed the Resolution and furnished launching information to the SG under the UN document series A/AC.105/INF/. However, the information provided and the terms used varied substantially from one state to another. There were no uniform, homogenous requirements on the content to be reported, and it was left to the states’ discretion what type of information they submitted.
Notwithstanding the lack of consistent registration requirements, in the years after the adoption of the Resolution, states have sent on a voluntary basis registration information to the UN. Some authors argue that these repeated acts of registration notification form consistent state practice and the states have been doing so in order to comply with the Resolution, which they believe is not only a voluntary, but a legal obligation (opinion juris). Thereby, the legal obligation to register space objects entailed in the Resolution has become customary international law, and as such it should be adhered to by all space faring nations. This is irrespective of whether states later became state parties to the Registration Convention or not (Jakhu, Jasani, & McDowell, 2017). However, the prevailing opinion is that the states have been providing information on voluntary basis, which negates the existence of opinion juris. Putting aside weather the states have been doing it voluntarily or out of the feeling of duty, the legal obligation to provide information exists under Article XI OST and is contained as well in Principles 7 and 9 of the Principles Declaration 1963, which are considered to have become customary international law (Cheng, 1965; Lee, 2012, p. 118; Stubbe, 2017, p. 78).
Negotiating and Drafting of the Registration Convention
After the Resolution in 1961, the Principles Declaration was adopted in 1963, which entailed in Principle 7 the same wording that later became Article VIII OST and in Principle 9 the same wording that became Article V OST. However, it took another 13 years of debate to finally agree on the type of information to be furnished and other obligations in order to adopt the Registration Convention.
The first country to submit a draft proposal regarding the registration mechanism was France in 1968 (UN Doc. A/AC.105/C.2/L.45, 1968). The French proposal consisted of five main articles and a preamble, and it left to the states’ discretion to determine national requirements for the national register. On the international level, France has proposed a minimum that had to be agreed upon beforehand. These minimal requirements obliged states to furnish the following information: name of the entity procuring the launch; law applicable in the case of the IGO’s procurement or joint launch; and the establishment of a national register that would be open to the public. Furthermore, it suggested to establish certain specifications on marking the space objects. The proposed working document served as the basis for later drafts and discussions (Galloway, 1975). This was due to the fact that it was quite detailed and addressed in a visionary way legal question that would be very relevant in the future.
The importance of the question of registration advanced and, in 1969, the UN COPUOS Legal Subcommittee (LSC) adopted a resolution inviting the Scientific and Technical Subcommittee (STSC) to examine the technical side of registration and to compare the registration praxis from other UN specialized agencies, such as the International Telecommunication Unit (ITU), and the International Civil Aviation Organization (ICAO), as well as from the Inter-Governmental Maritime Consultative Organization (IMCO), and COSPAR (UN Doc. A/AC.105/58, 1969). However, in its report, the STSC concluded that, from the technical perspective, it was impractical to adopt a marking system, as the state of technology at that time could not achieve a robust marking system that would survive the re-entry stress (UN Doc. A./AC.105/82, 1970).
Two years later, in 1971, the LSC decided to put the question of registration on its agenda for the 1972 session. At that session, Canada put forward a draft convention on registration of objects launched into outer space (UN Doc. A/AC.105/C.2/L.82, 1972). As there were now two proposals on the table, it was decided to merge the French and Canadian drafts into one consolidated version. The consolidated version consisted of a preamble and ten principles (UN Doc. A/AC.105/C.2/L.83, 1972). In the following, LSC formed a special working group with the mandate to prepare a draft version of the Convention. Its text contained a preamble and nine articles, and it served as the basis for the negotiation of the final draft. Several meetings and consultations took place and a new proposal by the United States, a revised version by Canada and France, and an additional proposal by Argentina were submitted (UN Doc. A/AC.105/C.2/L.85, 1973; UN Doc. A/AC.105/C.2/L.86, 1973). These proposals showed significant differences in the positions of the states. The working group adopted a text, consisting of a preamble and ten articles, based on the various proposals after substantial informal consultations. However, it did not contain any reference to compulsory marking, which was an issue seen very differently among member states. Some were advocating for a firmer regulation of the marking systems, and others insisted on a looser approach. In addition, another question emerged, namely, whether the transmission of the data should be obligatory or voluntary. Due to the discrepancies in opinions and Argentina’s strong opposition to the insufficient marking requirements, the proposed text was not adopted but returned to the debate (UN Doc. A/AC105/115, 1973).
Compulsory marking became a central issue of discussion in 1974, during the 13th LSC session. Again, new proposals were submitted. Canada, submitted a new draft, and Argentina, Brazil, India, Mexico, Nigeria, and Sudan put forward a joint proposal (UN Doc. A/AC.105/C.2/L94, 1974). The main differences related to the three core questions:
Whether there should be one central register or several registers kept by individual states;
Whether the type of information to be registered should be obligatory or optional;
Whether marking of space objects should be made obligatory or optional. (Galloway, 1975)
After numerous consultations, the working group and the LSC agreed on a unified final draft text with a preamble and 12 articles, which was adopted on May 28, 1974 by the LSC. Half a year later, on November 12, 1974, the GA adopted Resolution 3235 (XXIX), formally accepting the Convention on Registration of Objects Launched into Outer Space. The text of the Convention was attached as an annex to that resolution (UN Doc. A/AC.105/C.2/13, 1974).
Rights and Obligations Under the Registration Convention
At the start of the 21st century, 69 states ratified the Registration Convention, while three states signed and four IGOs made declarations accepting the rights and obligations under the Convention (A/AC.105/C.2/2019/CRP.3, 2019). The preamble and the 12 articles explain the objective and the scope of the Convention, cover issues ranging from registration obligations and procedures to amendments and withdrawal.
The Preamble of the Convention
The preamble of the reiterates relevant principles of the OST, ARRA, and the Liability Convention that it aims to foster declares the purpose and reflects on the main motivation for the adoption of the Convention. It consists of ten paragraphs, which by and large can be divided into two groups. The first group recognizes the already established principle of the common interest of all mankind in exploring and utilizing the outer space, and recalls the previous treaties by referencing articles connected to the registration matters.
The States Parties to this Convention,
Recognizing the common interest of all mankind in furthering the exploration and use of outer space for peaceful purposes,
Recalling that the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 27 January 1967 affirms that States shall bear international responsibility for their national activities in outer space and refers to the State on whose registry an object launched into outer space is carried,
Recalling also that the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space of 22 April 1968 provides that a launching authority shall, upon request, furnish identifying data prior to the return of an object it has launched into outer space found beyond the territorial limits of the launching authority,
Recalling further that the Convention on International Liability for Damage Caused by Space Objects of 29 March 1972 establishes international rules and procedures concerning the liability of launching States for damage caused by their space object… (Preamble, Registration Convention, 1974)
The second group outlines the three primary objective of the Convention, which can be identified as being: (1) the provisions on national registration; (2) the establishment and maintenance of a public and mandatory central register of space objects by the SG of the UN; and (3) additional means and procedures for the identification of space objects. It emphasizes the role of the mandatory system of registration for identifying space objects and its contribution to the application and development of international law governing the exploration and uses of outer space.
Desiring, in the light 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, to make provision for the national registration by launching states of space objects launched into outer space,
Desiring further that a central register of objects launched into outer space be established and maintained, on a mandatory basis, by the Secretary-General of the United Nations,
Desiring also to provide for states Parties additional means and procedures to assist in the identification of space objects,
Believing that a mandatory system of registering objects launched into outer space would, in particular, assist in their identification and would contribute to the application and development of international law governing the exploration and use of outer space,
Have agreed on the following (Preamble, Registration Convention, 1974)
These two groups of paragraphs combined together explain the objective and purpose of the Convention. They make reference to the provisions in the other UN space treaties and provide for registration mechanisms. Its main aim is to establish a legal nexus “between the object launched into outer space and the launching state on whose registry this object is carried in order to secure jurisdiction and control over such object” (Kopal, 2001).
Definitions (Article I)
Article I of the Registration Convention entails three definitions. Two definitions are identical to the definitions under Article I lit. (c) and lit. (d) of the Liability Convention. These relate to the concepts of the “launching state” and “space object.”
For the purposes of this Convention:(a)
The term “launching state” means:(i)
A state which launches or procures the launching of a space object;(ii)
A state from whose territory or facility a space object is launched;(b)
The term “space object” includes component parts of a space object as well as its launch vehicle and parts thereof… (Article I lit. (a) and lit. (b))
As in the Liability Convention, a state can be the “launching state” if it fulfills one of the four criteria, which are valid cumulatively. Accordingly, the definition of the “launching state” may lead to the possibility that there are several launching states for the same space object, which in the case of damage caused by the space object, means that all states that meet the requirements of a “launching state” will be jointly and severally liable (Article V LIAB). Despite this victim-oriented liability regime, there are, however, diverging interpretations on the extent of the definition of a “launching state,” especially regarding the criteria “procuring the launching.” In the case where private (person or entity) actor procures a launch outside its national territory, some authors argue that this does not constitute procurement by that state. However, others argue that the wording of the Resolution on the Concept of the “Launching state” and the Resolution on Enhancing Registration and the Registration Convention provides for that state to be identified also as the “launching state” (Gerhard, 2009; Kerrest & Smith, 2009). Furthermore, for private space activity the term “the appropriate state party” in Article VI OST is also highly relevant, as this state has to authorize and supervise private actors engaging in space activity. Here again, there are highly contested interpretation views. Some authors consider that the appropriate state is the liable launching state, i.e., the state of registry. The reasoning behind is that the state of registry retains jurisdiction and control over the space object. Other authors argue that the appropriate state is also the state which has jurisdiction based on general concept of jurisdiction under international law, encompassing both territorial and personal jurisdiction (Gerhard, 2009; Hobe, 1992, p. 158; Kerrest, 1997). This debate applies also to the launching concept under the Registration Convention.
The second definition, “space object” actually is not an exhaustive definition. Instead, it is a clarification that it encompasses component parts of a space object as well as its launch vehicle and parts thereof. Hence, all those objects form part of the (first) registration, as long as there is no additional separate registration. Furthermore, the purpose of the launched space object is also irrelevant, thus a space object can be launched for scientific, military, civilian, or commercial objectives. The Convention does not require objects to be registered if they were not launched into Earth’s orbit or beyond, as would be the case if the object was sent only on a sub-orbital flight or there was only an attempted launching (Jakhu et al., 2017). Lastly, the Convention is silent regarding non-functional pieces and fragments that separated from the principal object later in time. Some states, such as the United States and France, also furnish some information regarding space debris (e.g., rocket stages and shrouds), while other only register the principle space object. Therefore, there is no uniform state practice relating to the registration of space debris.
The first novelty that the Registration Convention introduced was the definition of the term “state of registry” in Article I lit. (c):
The term “‘State of registry” means a launching State on whose registry a space object is carried in accordance with article II.
A “state of registry” can only be one launching state of the specific space object according to Article II Registration Convention, whereas there can be multiple “launching states.”
Registration Obligation (Article II)
The obligation to register a space object is imposed on the launching state, and it encompasses both the international obligation of the state to register at the domestic as well as at the international level. According to Article II (1), there are three requirements for the launching state.
When a space object is launched into earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry. (Article II 1)
The first requirement is to establish and maintain a national registry; the second is to register the launched space objects into this national registry; and the third is to inform the UN SG of the establishment of such a national registry. This obligation to register nationally goes beyond what is defined under Article VIII OST, establishing jurisdiction as the consequence of national registration. Jurisdiction is the legal link to the space object, and it signifies that a state retains its legislative and executive powers over the object. Control, conversely , means the effective and factual link between the launching state and the launched object (Schmidt-Tedd & Mick, 2009). Both of these powers combined form a primary legal position relating to the space object, which is derived directly from the registration. This is an exclusive legal position of the launching state that registers the space object and is not affected by the later transfer of the ownership. Therefore, registration is an important requirement in asserting legislative and effective powers over a space object (Schmidt-Tedd, Malysheva, Stelmakh, Tennen, & Bohlmann, 2013).
Where there are two or more launching States in respect of any such space object, they shall jointly determine which one of them shall register the object in accordance with paragraph 1 of this article, bearing in mind the provisions of article VIII 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, and without prejudice to appropriate agreements concluded or to be concluded among the launching States on jurisdiction and control over the space object and over any personnel thereof. (Article II 2)
There can only be one state of registry, which must be one of the launching states. According to Article I lit. (a), there is a possibility of up to four launching states. When there are two or more possible launching states, then these states shall jointly determine among themselves which one of them shall register the space object, in order to have only one state of registry. Article II (2) of the Registration Convention makes a reference to the appropriate agreements between launching states and requires states to find a joint solution regarding registration, i.e., jurisdiction and control. All launching states bear the same liability for the launched space object, and therefore it is in their interest to find a common agreement. These agreements are reserved for the relevant group of launching states (Schmidt-Tedd et al., 2013).
With respect to national registration it is left to this state’s discretion to determine the content of the national registry, how to maintain it and how to keep it up to date.
The contents of each registry and the conditions under which it is maintained shall be determined by the state of registry concerned. (Article II 3)
Through its national legislation, states determine alone the requirements, procedures, license processes, scope of the information to be furnished, as well as the timing of the entry of recording in the national registry. Even though they are free in determining these requirements, it would be advisable to try to be similar to the ones necessary for the international registration (UNOOSA, Space Objects Register, Submissions).
International Registration (Articles III and IV)
Article III of the Registration Convention states that international register shall be maintained by the SG of the UN. The state of registry has the obligation to furnish the information on the launched space object.
The Secretary-General of the United Nations shall maintain a Register in which the information furnished in accordance with article IV shall be recorded.2.
There shall be full and open access to the information in this Register. (Article III)
This Article goes beyond the scope of Article VIII OST as it imposes an obligation on states of registry to inform the UN SG and thereby contribute to international transparency (Schmidt-Tedd, 2013). The rationale behind is actually rooted in the Article XI of the OST. According to Article XI OST state parties have legal obligation to disclose information regarding nature, conduct, locations, and results of their activities in outer space. This general obligation has been further formalized and substantiated by Articles III and IV of the Registration Convention, which stipulate that the state of registry shall disclose to the UN SG specific information concerning the launch of space object (Mayence & Reuter, 2009). In addition, there is full and open access to the UN SG register. The exact type of information to be furnished is regulated by Article IV of the Registration Convention.
Each state of registry shall furnish to the Secretary-General of the United Nations, as soon as practicable, the following information concerning each space object carried on its registry:(a)
name of launching state or states;(b)
an appropriate designator of the space object or its registration number;(c)
date and territory or location of launch;(d)
basic orbital parameters, including:(i).
general function of the space object.2.
Each state of registry may, from time to time, provide the Secretary-General of the United Nations with additional information concerning a space object carried on its registry.3.
Each state of registry shall notify the Secretary-General of the United Nations, to the greatest extent feasible and as soon as practicable, of space objects concerning which it has previously transmitted information, and which have been but no longer are in earth orbit. (Article IV)
Article IV (1) is the core of the Convention as it standardizes the type of information to be furnished. States are free to provide additional information, but at least requirements listed from lit. (a) to lit. (e) should be provided. Notifications by states of registries are contained in the ST/SG/SER.E series. The UN Office for Outer Space Affairs (UNOOSA) maintains the UN register as it is in charge of implementing the SG’s responsibilities under international space law and in accordance with Resolution 1721 B (Marboe, 2016, p. 175). Thus, UNOOSA started with maintaining a register already with the adoption of the Resolution 1721 B, the “Resolution Register,” and it established a second register when the Registration Convention entered into force, the “Convention Register.” These two registers are complementing one to another. By maintaining these two registers, UNOOSA has developed a practice of making publically available data of which it is aware. This is a fusion of official and unofficial gathered data, entailing all registered and unregistered satellites, probes, spacecraft, and other flight elements from 1957 onward. According to the UNOOSA website, unofficial data is gathered data from media information, official press releases and COSPAR (Lyall & Larsen, 2018) (Online Index of Objects Launched into Outer Space, last accessed 27.01.2020).
The Registration Convention sets the type of information to be furnished, but it does not entail any provisions regarding verification (Article III (1) and (2) Registration Convention). It is today the role of UNOOSA to maintain and update the international register, and provide full and open access to it. In practice, UNOOSA verifies the accuracy of submitted information and enters in communication with member states, if necessary. However, UNOOSA does not have the power nor the mandate to change submitted information.
The orbital information required (apogee, perigee, inclination) is helpful for identifying the orbit, but it is not sufficient (nor intended) to provide exact location details. Furthermore, the orbital parameters can be used to confirm that the registered object is indeed the one being tracked. In addition to orbital information, the Registration Convention also requires states to provide details on the general function of the space objects. However, in practice this requirement is often “bypassed” by states as they often register function of military and intelligence satellites more broadly, for example, as Earth observation satellites. All of this information needs to be submitted after the successful launch, but “as soon as practicable.” According to the interpretation of some authors, this should be understood as “promptly” or “as soon as possible,” and it does not relate to objects that are gone beyond the Earth orbit or have decayed (Jakhu et al., 2017). In practice, this requirement has developed into ex post facto furnishing of information and states vary in the frequency of their notification (some do it on a monthly or quarterly basis, while some do it a lot later; Van Fenema, 2015). In order to further help identification process in the case of re-entry, states are expected to mark their objects and to provide this information to the UN (Schmidt-Tedd, Malysheva, & Stelmakh, 2013).
Designator or Registration Number and Assistance (Articles V and VI)
Article V of the Registration Convention is a formula that was adopted as a compromise between two opposing views, the launching states, on the one hand, and states that were afraid that they might be potential victims, on the other. The question of obligatory marking was one of the most heated question debated during the negotiation of the Convention. Launching states were not in favor of an obligatory marking system, while the potential victims were insisting on it. At the end, an agreement was reached between these two differing positions, namely to make the marking of the space objects voluntary, but as soon as it is marked, the registration thereof mandatory (Jasentuliyana & Lee, 1981).
Whenever a space object launched into earth orbit or beyond is marked with the designator or registration number referred to in article IV, paragraph 1 (b), or both, the State of registry shall notify the Secretary-General of this fact when submitting the information regarding the space object in accordance with article IV. In such case, the Secretary-General of the United Nations shall record this notification in the Register. (Article V)
Marking of the objects is necessary for the state of registry to be able to identify an object or a vehicle, and to claim rights on it. For example, Article 5 of the ARRA stipulates that each contracting state needs to notify the launching authority of any space object or its component parts discovered under its jurisdiction (or on the high seas). This is hardly possible if the object is not marked.
In order to facilitate this, the most meritorious provision, Article VI of the Registration Convention lists types of assistance to be rendered by countries possessing means of identifying objects:
Where the application of the provisions of this Convention has not enabled a State Party to identify a space object which has caused damage to it or to any of its natural or juridical persons, or which may be of a hazardous or deleterious nature, other States Parties, including in particular States possessing space monitoring and tracking facilities, shall respond to the greatest extent feasible to a request by that State Party, or transmitted through the Secretary-General on its behalf, for assistance under equitable and reasonable conditions in the identification of the object. A State Party making such a request shall, to the greatest extent feasible, submit information as to the time, nature and circumstances of the events giving rise to the request. Arrangements under which such assistance shall be rendered shall be the subject of agreement between the parties concerned.
Article VI deals with assistance that should be provided by other state parties, especially the ones possessing monitoring and tracking infrastructure and capabilities (Schmidt-Tedd, Malysheva, et al., 2013). Such assistance is not necessarily free of charge, but it is to be provided under “equitable and reasonable conditions,” when assistance is requested either by a state party or the UN SG. Exact details of such assistance are to be agreed upon between parties concerned (Article XI Registration Convention). Both the Registration Convention and Liability Convention are substantially reinforced by this Article, as it strengthens the possibility for an injured state to trace the launching state or for the launching state to retrieve its lost space object.
Intergovernmental Organizations (Article VII)
All the provisions entailed in the Registration Convention also apply to IGOs. According to Article VII, the applicability of the Convention is extended to any IGO engaged in space activities, if it fulfills two conditions. First, the majority of its member states have to be state parties to the Convention and to the OST, and second, such IGO needs to declare its acceptance to the rights and obligations of the Convention.
In this Convention, with the exception of articles VIII to XII inclusive, references to States shall be deemed to apply to any international intergovernmental organization which conducts space activities if the organization declares its acceptance of the rights and obligations provided for in this Convention and if a majority of the States members of the organization are States Parties to this Convention and to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.2.
States members of any such organization which are State Parties to this Convention shall take all appropriate steps to ensure that the organization makes a declaration in accordance with paragraph 1 of this article. (Article VII)
If the majority requirement is fulfilled, then the member states should undertake all necessary steps to ensure that the IGO in question declares its adherence to the registration Convention. If it does not declare its acceptance, then the member states of the IGO would be considered to be in violation of their obligation under Article VII (2) of the Registration Convention. Even when an IGO makes such a declaration, this does not mean that the IGO actually signs and ratifies the Convention, nor does it have the right to propose amendments to it or withdraw. This right is only reserved to the state parties. However, the extended applicability of the obligations under the Convention to IGOs is another important contribution of this Convention to the maximum transparency in space activities (Bohlmann, 2013). Since the late 20th century, four IGOs have declared their acceptance of the Registration Convention: the European Space Agency (ESA) in 1983, the European Organization for the Exploitation of Meteorological Satellites (EUMETSAT) in 1998, the European Telecommunications Satellite Organization (EUTELSAT IGO) in 2014, and Intersputnik. (A/AC.105/C.2/2019/CRP.3*). These IGOs are thus obliged to set up their internal registries and to inform UN SG about space object that they launch. In its commitment to respect its obligation and international space law, ESA even went a step further in order to guarantee, at any time, up-to-date, centralized information about all its space objects and to provide for a “guiding example in space object registration” (A/AC.105/C.2/2015/CRP.18, p. 2). Specifically, ESA developed its Space Object Registration Policy. According to this policy: (1) All ESA space objects shall be registered in an ESA-internal register maintained by the ESA department in charge of legal affairs (this register corresponds to the “national registry” requirement under Art II registration Convention); (2) all related information is to be provided for that purpose by the respective programme/project/mission manager in accordance with a structured process; (3) ESA will continue to notify the UN Secretary-General of ESA space objects in conformity with its international obligations; and (4) this notification shall be furnished to the UN in reasonable time after the launch or status change of an ESA space object, but not later than one month after the launch or status change. (Soucek, 2015, s. 5)
Furthermore, ESA also defined what additional information under Article IV paragraph 2 should be provided to the UN SG (significant, permanent changes of orbital parameters and permanent changes of the space object status). In this manner, ESA through its practice offers insight into its internal interpretation of the terms “as soon as practicable” and “additional information” (Articles IV paragraphs 1 and 2 Registration Convention; A/AC.105/C.2/2015/CRP.18).
Entry Into Force (Article VIII)
For the first time in creating a space treaty, the “Moscow formula” was abandoned. Instead of having three depositary states, according to the Article VIII Registration Convention, the depositary of the instruments of succession was to the UN SG.
This Convention shall be open for signature by all States at United Nations Headquarters in New York. Any State which does not sign this Convention before its entry into force in accordance with paragraph 3 of this article may accede to it at any time.2.
This Convention shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the Secretary-General of the United Nations.3.
This Convention shall enter into force among the States which have deposited instruments of ratification on the deposit of the fifth such instrument with the Secretary-General of the United Nations.4.
For States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Convention, it shall enter into force on the date of the deposit of their instruments of ratification or accession.5.
The Secretary-General shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification of and accession to this Convention, the date of its entry into force and other notices. (Article VIII)
Article VIII deviates from its predecessors, where the “Moscow formula” was used. Based on this formula, there were three depositary governments: the United States, the United Kingdom, and the Soviet Union. In the case of the OST and ARRA, the depositary states also had factual veto power, as their signature was necessary for the treaty to come into force, irrespective of the number of other instruments of ratification. For the Liability Convention to come into force, this requirement was discarded; however, the necessity of having three depositary governments was still kept. The first Convention to completely abandon the “Moscow formula” was the Registration Convention (Galloway, 1975). Furthermore, Article VIII together with Articles VI and X of the Convention form a package that was necessary to gain support of those countries which would otherwise not have accepted the Convention, the non-space-faring nations at that time (U.S. Senate, 94th Congress, 2nd Session, Executive report no. 94).
Amendments and Review (Articles IX and X)
The Registration Convention provides in its Article IX the possibility to propose amendments.
Any State Party to this Convention may propose amendments to the Convention. Amendments shall enter into force for each State Party to the Convention accepting the amendments upon their acceptance by a majority of the State Parties to the Convention and thereafter for each remaining State Party to the Convention on the date of acceptance by it. (Article IX)
Each state party has the possibility to propose amendments, and these amendments would enter into force for those accepting them only if the majority of the state parties was in favor of the amendments. The remaining states would only be bound by the amendment at the time of their individual acceptance. This opens the door of having the Registration Convention in varying forms, applying differently to the different state parties, depending on the individual entry into force moment (Tronchetti, Smith, & Kerrest, 2013).
Article X, conversely, calls for a review ten years after the entry into force of the Convention:
Ten years after the entry into force of this Convention, the question of the review of the Convention shall be included in the provisional agenda of the United Nations General Assembly in order to consider, in the light of past application of the Convention, whether it requires revision. However, at any time after the Convention has been in force for five years, at the request of one third of the State Parties to the Convention and with the concurrence of the majority of the State Parties, a conference of the State Parties shall be convened to review this Convention. Such review shall take into account in particular any relevant technological developments, including those relating to the identification of space objects.
The review clause was a compromise regarding to the compulsory marking. The idea behind the inclusion of this clause was that technology development could play a role with respect to the marking systems. If the technological advancement in the future permits the adoption of a robust marking system, then it should be possible for the principle enshrined in Article V to change from the voluntary marking into a compulsory one (Matte, 1976). However, in 1986 this timetabled revision was decided as not necessary, and that in the future it can be considered if one-third of the state parties request it and the majority concurs (UNGA Resolution 41/66, 1986).
Withdrawal (Article XI)
According to the Article XI, withdrawal from the Registration Convention is possible:
Any State Party to this Convention may give notice of its withdrawal from the Convention one year after its entry into force by written notification to the Secretary-General of the United Nations. Such withdrawal shall take effect one year from the date of receipt of this notification.
This Article is similar to the respective provisions in Article XVI OST, Article 9 of the ARRA, Article XXVII of the Liability Convention, and Article 20 of the Moon Agreement.
Authentic Language (Article XII)
Article XII of the Registration Convention introduces for the first time to the UN space treaties Arab as an authentic language, together with Chinese, French, Spanish, English, and Russian. The Arab language is an official and working language of the UN since December 18, 1973.
The original of this Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all signatory and acceding States.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Convention, opened for signature at New York on the fourteenth day of January, one thousand nine hundred and seventy-five. (Article XII)
This last sentence of the Registration Convention makes reference once again to the abandonment of the “Moscow formula” and transfer of the depositary to the UN SG, which is in New York.
Success of the Registration Convention
The Registration Convention was a product of progressive development of international space law. As seen by the wording of the Convention, it elaborated further on the OST principles of jurisdiction and control, as well as on the obligation to provide information to the UN SG. Based on this, a strengthened link was also made to the ARRA and to the Liability Convention. The Convention protects the attribution of jurisdiction on the basis of the national registry as well as the identification of space objects as a way of securing the principle of liability and the right to retrieve such objects. These strong links to the other space treaties and requirements for the state parties to furnish detailed information on their launched space objects, together contribute to the general international transparency and to ensuring peaceful purposes of space activities. By registering space objects, atmosphere of fear and suspicion is decreased, and the danger of having unregistered objects orbiting is reduced.
The registration mechanism in the Convention is built upon previous state practice under Resolution 1721B (XVI) and even though these two registers stand separately, they are complementary in nature. Between the two of them, the “Resolution Register” and the “Convention Register,” as of the early 21st century, the vast majority of all functional space objects have been registered (Di Pippo, 2016). According to the numbers provided by the UNOOSA, the breakdown is as follows:
89% of functional space objects that are presently in Earth orbit or beyond have been registered;
96% of functional space objects that were in Earth orbit were registered;
87% of functional space objects that are/were in GSO have been registered;
90% of functional space objects that are in LEO/MEO have been registered;
space objects on deep space/planetary missions have been registered;
all space objects carrying nuclear power sources have been registered;
crewed spacecraft are customarily registered; and
space station flight elements (including modules and robotic arms) are registered. (Di Pippo, 2016)
The wording of the Convention, particularly Article IV, invites states to provide additional information on their space objects. This was the basis for the UN GA to adopt, in 2008, “Recommendations on enhancing the practice of states and international intergovernmental organizations in registering space objects” in the form of a Resolution 62/101 (A/RES/62/101, 20018). Based on the assessment of the “best practices” of states, this resolution suggests what type of information could be further provided. The aim was to encourage adherence to the Registration Convention and homogenize the type of data provided. UNOOSA has reported that since the adoption of the Resolution 62/101, there are tangible changes and improvements in registration practice of states (Morozova, 2017).
Challenges of the Registration Convention
The Registration Convention has not only been praised, it has also been criticized (Van der Dunk, 2003). There are a number of issues and questions that the Convention leaves open, creating legal loopholes. Even though the numbers testify to the good faith efforts of most of the state parties in providing relevant information, abuse of the unclear requirements and poor quality control have led to significant flaws in the registry (Jakhu et al., 2017). Furthermore, the very wording of the Articles dealing with joint launch registration and registration by IGOs is seen as undermining the initial principle that jurisdiction and control should go with registration. Due to the fact that elements of jurisdiction and control can be freely separated from registration between joint launching states and, in the case of an IGO, the IGO does not have the sovereign authority to exercise jurisdiction and control, the Convention leaves important areas unregulated. Hence, it occurs often in the case of multiple launching states involved that the “state of registry” is not agreed upon or in the case of an IGO, that it does not fulfill the requirements to declare adherence to the Registration Convention, and therefore its launch objects are not registered. Unfortunately, it seems that the aim and spirit set out in the preamble of the Convention was not sufficiently reflected afterward in the substance of the Convention.
Furthermore, due to the technological advancement, decrease in satellite production and launch costs, as well as democratization of space, which allows for more states to join the space domain and the rise of the private sector, there is a growing discrepancy between “space nations” and “states of registry.” The possibility to construct functional cubesats in the rooms of a university, to launch a high number of them simultaneously on a single launcher, and the idea of putting mega-constellations in Earth orbit all pose a serious test to the Registration Convention. In the case of new states entering the space field, if they are not state party to the Convention, its provisions do not apply to them. If opinion by some authors is followed, then provisions that are seen as customary law from Resolution 1721 B (XVI) would be applicable, even if they are seen as less adequate to cover new types of space missions. If the activity is carried out by an academic institution or a private actor in a state that does not have national regulation in place, then the chances of registration are slim. Furthermore, even if the national space legislation is in place, due to the rising number of private space activities, there is also the possibility that no launching state “claims” the activity nor accepts the responsibilities of being a “state of registry.” For example, in the recent case of the launch of four cubesats by a U.S. company, without prior U.S. authorization with the Indian launcher, the risk of no-state of registry was high (Henry, 2018). Hence, it is reasonable to think (fear) that the tendency of non-registration of space objects will become a bigger challenge, as more private actors engage in space activities. On top of this an increasing trend of transfer of ownership of space assets causes further confusion on which the state bears “international responsibility.” There were proposals to expand the Registration Convention to encompass also financial interests of assets in outer space. However, these issues remain regulated by another legal regime, the UNIDROIT Cape Town Convention and the Space Assets Protocol (UNOOSA). In fact, the Registration Convention would have not been the adequate place to deal with the registration of commercial interests and financing instruments, as these issues fall under international private law framework. The UN registration system is part of public international law and has the function of attributing “jurisdiction and control” in a sovereign-free area, related to space objects. Thus, it was appropriate to leave this to UNIDROIT, which deals with the harmonization of private law.
The Registration Convention is an important milestone in the history of space law. It has brought novelties with it and has contributed to the stronger nexus between all the space treaties. This strengthened nexus between all the existing space treaties has had a general effect on the enhancement and lamenting the cornerstone of all space activities—the peaceful purposes. By their good faith efforts, states have acknowledged the value and importance of registering the launched space objects.
However, the Registration Convention stands in front of an important “stress test” in the light of new actors and new possibilities regarding the construction and launching of space objects. It does not provide sufficient answer on how to deal with new challenges, and the lack of any verification and control system opens the door to potential circumvention and misuse. There are numerous academic writings suggesting amendments to the Registration Convention, and even under the UNISPACE+50 process, there were recommendations on improving overall information exchange on space objects (Lee, 2009, p. 115; Lyall & Larsen, 2018; Yun, 2004, p. 106). These issue should not be neglected and constant efforts on raising awareness of the importance of registration and its overall contribution to international transparency among both governmental and private sector should be made.
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