Varuni Agarwal[i]

INTRODUCTION

In January 2021, SpaceX, a company that designs, manufactures and launches spacecraft in outer space, announced its plans to launch several satellites in outer space from an offshore oil-rig, placed on water. With evolving space technology, increasing privatisation of the space sector and static international space laws, this new approach brings in new legal hassles as to settle international responsibility and liability of a State. The international responsibilities and liabilities of a State undertaking any space activity are respectively mentioned under Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967 (“Outer Space Treaty/OST”) and Convention on International Liability for Damage Caused by Space Objects, 1972 (“Liability Convention”).

This article aims to analyze the intersection of international maritime law and space law to resolve issues associated with the jurisdiction of a State when it launches a space-object from an offshore oil-rig. Applying the concept of ‘genuine link’ to off-shore oil-rigs, it attempts to determine the appropriate State which would bear international responsibility and liability of a space-object under the Outer Space Treaty and the Liability Convention, when the oil-rig is placed in Exclusive Economic Zones. Additionally, it also takes into account the issues related to the different registering, manufacturing and utilizing States of the oil-rigs, when determining jurisdiction. Furthermore, the article undertakes to identify the category of the vessel, recognized under Article 60 of the UN Convention on Law of the Seas (“UNCLOS”) ,that oil-rigs would fall under.

APPROPRIATE STATE UNDER ARTICLE VI OST

Article VI of Outer Space Treaty 1967 States that ‘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.’ Whereas, Article VII of OST says that ‘each State Party to the Treaty…from whose territory or facility an object is launched, is internationally liable for damage’. These provisions impose heavy responsibilities and liabilities on a State, which      makes their interpretation important when considering a launch from an oil-rig.

According to Article VI of OST, the ‘appropriate State’ is responsible for the conduction of      authorization and continuous supervision of the space object. However, the term ‘appropriate State’ has not been defined in the OST or any other conventions on space; thus, Article VI has to be read along with Article VII of OST to deduce the meaning of ‘appropriate State’. Under Article II and III of Liability Convention, liabilities of space-actors emerge when damage by its space-object is caused either ‘on the surface of Earth’ or ‘to aircraft in flight’ or ‘elsewhere other than surface of the Earth’.

Now, authorization, inter alia, includes implementation of space-debris mitigation guideline on a space-object, before the actual launch. Considering a hypothetical situation, if a space-object collides with another space-object due to unadjusted launch time (non-implementation of Guideline 3 of the UN Office for Outer Space Affairs’Committee on the Peaceful Uses of Outer Space Space-Debris Mitigation Guideline), it shall constitute ‘damage’ elsewhere on Earth, making the launching State (at fault) liable. Hence, as the consequences of non-compliance of Article VI OST would impose liability upon the launching State mentioned in Article VII of OST, the State that should be ‘appropriate’ to conduct prior authorization and continuous supervision of the space object must also be the launching State. Thus, this view makes the identification of launching State important when off-shore oil rigs are placed on water.

AMBIGUITY OF JURISDICTION IN EXCLUSIVE ECONOMIC ZONE

Jurisdiction of a State is unambiguous when offshore oil-rigs are placed in territorial waters, however, difficulty arises when these are placed in Exclusive Economic Zones (“EEZ”) of a State. Furthermore, the difference of oil-rigs’ manufacturing State, registering State and the State in whose jurisdiction it is situated, might bring out additional problems.

Article 58 of UNCLOS enumerates navigation, over-flight, laying of submarine cables and pipelines, and “other internationally lawful uses of the sea related to those freedoms” as rights of foreign States in EEZ. Whereas, Article 60 puts forward coastal State’s exclusive jurisdiction over construction, use and authorization of installations, artificial islands and structures. Now, the term ‘authorization’ creates ambiguity in the interpretation of authorization of foreign installations, etc. The term depicts that while a coastal State has exclusive jurisdiction to place installations, artificial islands and structures in EEZ, other foreign States may also place their oil rigs in EEZ with the authorization of the coastal State. With this analysis, the question remains; which State should be regarded as a launching State, the State having exclusive jurisdiction over EEZ (coastal State) or the State with which the launching vessel is associated, known as  the flag-State?

ESTABLISHING GENUINE LINK

Post the Nottenbohm judgement, which emphasized on establishing a genuine connection with the State conferring nationality rather than any other State,  the flag-State of a ship was defined according to the State of its registration. However, international courts’ judgements like the IMCO Advisory Opinion, the Barcelona Traction (Belgium v. Spain) as well as M/V Saiga (Saint Vincent and the Grenadines v. Guinea) case,have altered the view and have confirmed that the act of registration alone does not satisfy the genuine link requirement. Moreover, according to the UN Special Rapporteur on the Law of the Sea, the control and jurisdiction can only be effectively enforced if the flag-State and the ship have a substantive connection other than registration.

To impose responsibilities and liabilities, Article 91 of UNCLOS requires a “genuine link” to be established between the ship and the flag-State. Genuine link means that there must be some kind of connection between the vessel and the State alleged/claiming to have its nationality (flag-State). The genuine link provision in UNCLOS is intended to ensure more effective execution of the flag-State’s duties enumerated under UNCLOS Article 94. The same would also be required to determine the launching State (which would be the flag-State) for the successful bearing of  its liabilities and responsibilities under the Outer Space Treaty and Liability Convention.  Fragmenting the clause, Article 91 of UNCLOS requires a genuine link to be established between the “flag-State” and the “ship”.

SHIP

Article 91 of UNCLOS, being restricted to “ships” imposes a problem, as it means that genuine-link cannot   be established for vessels, other than ships. Since oil-rigs are not explicitly covered under UNCLOS, for the purpose of EEZ, the same needs to be construed such that it is covered under categories mentioned in Article 60 of UNCLOS, which are: installations, structures and artificial islands.

Installations have been defined as “man-made structures in EEZ, employed to exploit marine resources“. Accordingly, off-shore oil rigs, used in drilling out oil from the seabed, are the main instances of installations for exploration and exploitation of natural resources of the sea. Thus, Article 60 of UNCLOS directly applies to oil-rigs as being installations under maritime law.

International maritime scholars have agreed that the term “ship” cannot be used in a restrictive sense, and may mean and include different concepts in different cases. Thus, since both domestic and foreign vessels can utilize EEZ,hence for EEZ, the “ship” must mean any structure moving on water and  would include “installations”, i.e., in the present case, the oil rig.

FLAG-STATE

On the other hand, the flag-State of a ship would be the one that can “exercise effectively its jurisdiction and control over such ships concerning identification and accountability of ship owners and operators“, also known as test of effective jurisdiction. The International Court of Justice in the case of Barcelona Traction observed that only the State where the corporation has been incorporated, can exercise effective jurisdiction as the corporation would be accountable to that State only. Thus, for an oil-rig, owned and controlled by a private corporation, the State where the corporation has been incorporated would be the flag-State. Hence, the oil rig will be considered as a “launching facility” of that flag-State under Article I(c)(ii) of the Liability Convention, falling under its quasi-territorial jurisdiction.

However, then the question arises; which State would be considered as the flag-State for a private corporation like a Consortium, which involves people/groups from different states? According to Article 9 of Draft Articles on Diplomatic Protection 2006, irrespective of the nationality of the shareholders, the State where both the seat of management and the financial control of the corporation      are located, will be the State of nationality of the corporation. Here, the State of incorporation would be irrelevant if the corporation has no substantial business activities in that State. Therefore, the flag-State of the oil-rig would be decided as per the State of nationality of the corporation.

CONCLUSION

Identifying flag-State of an oil-rig is necessary to ascertain the actual launching State of the space object. The establishment of flag-State is important to secure the fulfilment of its duties under Article 94 of UNCLOS and responsibilities under Article VI of OST, as well as to impose liabilities under Liability Convention.

With the increasing use of launching facilities to launch space-objects, efforts by United Nations are required to be taken to initiate discussions concerning intersection of international maritime law as well as space law. As more light needs to be shed on the interpretation of the term ‘authorization’ under Article 60 of UNCLOS, an installation cannot be regarded to be under the sole jurisdiction of coastal State, which creates the necessity to establish a genuine link between the installation and the flag-State.

In general, to determine the flag-State of an oil-rig, the test of effective jurisdiction has to be applied. Alternatively, in the case of the corporation being a consortium, the State of nationality of the corporation must be ascertained.


[i] Varuni Agarwal is a 3rd Year Student pursuing B.B.A LL.B (Hons.) at National Law University Odisha