Abstract
The connection between space activities and the marine domain exists since the early days of the Space Era. Auxiliary tasks such as position tracking, telecommunications, and space object recovery conducted by vessels and installations were already part of the routine since the 1960s. Eventually, various experimental and operational rocket launchings were being carried out by vessels, submarines, as well as platforms, though mainly suborbital. During the last decades, a new trend has emerged that entails not only launching but also landing of space objects from and at the seas (hereafter “Ocean-Based Space Activities” – OBSAs). Such a kind of activity involves various advantages in financial, safety, and operational terms, but since it has not been widely practiced or studied, there are certain potential threats and knowledge gaps that ought to be examined further on. The scope of this paper is to highlight the prospects and dangers for Launching States on the one hand and on the other to emphasize on the priorities and rights of Coastal States and other ocean users.
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Notes
- 1.
See Chapter 6, “NASA Historical Data Book: Volume III – Programs and Projects 1969–1978” SP-4012, online: NASA http://history.nasa.gov/SP-4012/vol3/ch6.htm.
- 2.
Al. Soons, “Artificial Islands and Installations in International Law”, Occasional Paper no 22, Law of the Sea Institute, University of Rhode Island, 1974, 3.
- 3.
S. Chakrabarti, Handbook of Offshore Engineering, vol 1, (Amsterdam: Elsevier, 2005), 3.
- 4.
Treaty for the Limitation of Naval Armament, London, 1936, Art. 1, para. B.4.
- 5.
G Walker, ed., Definitions for the Law of the Sea Terms Not Defined by the 1982 Convention, M., (Leiden: Nijhoff, 2012) 104–107.
- 6.
United Nations Convention on the Law of the Sea, (10 December 1982), entered into force 16 November 1994.
- 7.
J. Jacobson, “The Law of Submarine Warfare Today” in H. Robertson, ed., International Law Studies – The Law of Naval Operations, vol. 64 (1991), 205–240.
- 8.
“The project San Marco will be performed (…) from a mobile base consisting of two floating platforms with movable legs;” see H. Nesbitt, History of the Italian San Marco Equatorial Mobile Range, NASA CR-111987, 1971, 5. Even though both installations (San Marco and San Rita) were capable of relocating, no relocation was ever reported.
- 9.
The initial planning was for Santa Rita to serve as an auxiliary platform. Instead, it also served as a launch pad for a small number of Nike-Apache rockets in 1964.
- 10.
Carroll considers the San Marco Program as a first proof of OBSAs’ viability; see J Carroll, “From the Seas to the Stars – A Case for Developing Offshore Spaceports on States’ Submerged Lands,” William & Mary Environmental Law and Policy Review 39(3), 766. Italy was also the first space-faring nation, after USSR and the USA, that launched a satellite (San Marco B) from its own facility (the San Marco Equatorial Mobile Range) in April 1967; see G Palumbo, “From (under)ground to space. The birth of Space Science in Italy and the growth of astrophysics in its National Institutions” in Nuclear Physics B (Proceedings Supplements), vol. 212–213, (2011), 42.
- 11.
In 2004 the Italian Space Agency and Russia examined the possibility of using the L. Broglio Centre, by the latter. The preliminary findings were characterized as “positive” by ASI; see ASI, Piano AeroSpaziale Nationale 2006–2008, 69. In 2016 Kenya and Italy decided the renewal of their cooperation regarding L. Broglio Centre, but none of the priorities set included launching of space objects; see “Via libera del Governo all’accordo col. Kenya,” online: ASI http://www.asi.it/it/news/il-governo-ratifica-laccordo-col-kenya (last accessed 15/01/2018).
- 12.
The stakeholders of the initial scheme (Sea Launch Co. LLC, 1995–2010, registered in Cayman Islands) comprised of a US company (Boeing Commercial Space, 40%), a Russian company (Energia, 25%), a Norwegian company (Aker Solutions, 20%), and a Ukrainian one (SDO Yuzhnoye/ PO Yuzhmash, 15%). After a restructuring, a new synthesis emerged in October 2010: Energia took hold of 95% and Boeing C.S. and Aker 2.5% each, while SDO Yuzhnoye/ PO Yuzhmash withdrew (Source: http://www.sea-launch.com). In 2017 the Russian company S7 Group took over Sea Launch assets, while it signed a cooperation agreement with Energia on engineering, launch support, and system integration services. See “S7 Group announcing an Agreement to Purchase Sea Launch”; online: Sea Launch http://www.sea-launch.com/news/11421; “S7 Group has become an aerospace holding company”; online: S7 https://www.s7.ru/home/about/news/s7-group-has-become-an-aerospace-holding-company (last accessed 15/01/2018).
- 13.
According to press sources, this new scheme aims at conducting 10–12 launches in the first 5 years, starting from 2019; see “Group intends to resume launches from Sea Launch floating spaceport in 2019”; online, Ruaviation https://www.ruaviation.com/news/2017/12/13/10364/print/ (last accessed 15/01/2018).
- 14.
All platforms where initially used as barges in various maritime projects and were refitted by SpaceX. “Just Read the Instructions” (“JRTI”) was built in 2015 and was followed by “Of Course I Still Love You” (“OCISLY”) a few months later. “JRTI” was used only for a few months (January–May 2015), and a totally new drone ship acquired the same name, in early 2016; see J Smedley, “SpaceX Augments and Upgrades Drone Ship Armada”, online: NASA Space Flight https://www.nasaspaceflight.com/2015/06/spacex-augments-upgrades-drone-ship-armada/.
- 15.
The second version of “JRTI”.
- 16.
For details see also Er Seedhouse, Suborbital Industry at the Edge of Space, (Switzerland, Springer International Publishing: 2014), 107–111.
- 17.
Delta III: Borisoglebsk, Ryazan and Delta IV: Novomoskovsk, Ekaterinburg. The first suborbital launch took place in 1995, while the first orbital launch of two nano-satellites (TUBSAT 1 and 2) was carried out by Novomoskovsk in July 1998; see Ph Clark, “Russian proposals for launching satellites from the oceans” (1999) 15 Space Policy, 9–12.
- 18.
AU Space Primer (Air University: Maxwell, 2003), ch. 20, p. 13, online: available at http://www.au.af.mil/au/awc/space/primer/index.htm.
- 19.
NASA started considering this option since 1958, when the use of USAF Texas Towers (three fixed platforms on the US East Coast) was proposed for OBSAs. Germany had also studied a similar idea for V-2 testing, in 1944; see Ch, Benson, et al., Moonport: A History of Apollo Launch Facilities and Operations, (NASA History Series – Special Publication 4204, 1978), online: http://www.hq.nasa.gov/office/pao/History/SP-4204/ch4-2.html#Explanation1.
- 20.
See OBSAs from Santa Rita Platform in 1964 (fn. 9).
- 21.
See Table 8.1.
- 22.
Out of 1738 satellites in operation, 42% are telecommunications satellites and 34% Earth observation satellites. Moreover, 61% are placed in LEO and 30% in GSO. Data retrieved from the Union of Concerned Scientists Satellite Database, online: UCSUSA http://www.ucsusa.org/nuclear_weapons_and_global_security/solutions/space-weapons/ucs-satellite-database.html#.VaPmmPntmkp (last accessed 15/01/2018).
- 23.
See “Launching Satellites,” online: EUMETSAT http://www.eumetsat.int/website/home/Satellites/LaunchesandOrbits/LaunchingSatellites/index.html:
When launching geostationary satellites, it is important that (…) [they] can be launched towards the east, where the launch impulse is aided by the spin of the Earth. This “slingshot” effect increases the speed of a launcher by 460 m/s. (…) The launch site should be as close as possible to the equator, so that the assistance is as large as possible.
- 24.
If larger payload volume is substituted by larger fuel load.
- 25.
J. J. Sellers, Understanding Space: An Introduction to Astronautics, (McGraw Hill Boston, 2004), 612.
- 26.
For example, a satellite launching into equatorial orbit from French Guyana costs 17% lower than if it had been launched from Cape Kennedy; see A Kerrest de Rozavel, “The Launch of Spacecraft from the Sea”, in G Lafferranderie, D Crowther, eds, Outlook on Space Law over the Next 30 Years (The Hague: Kluwer International Law, 1997), 217. The importance of budgetary reductions is highlighted by SpaceX’s endeavor to perform first stage landings, in order to reuse them in future operations. Contrary to the importance of equatorial position for OBSA launchings, landing positions are defined by the launching corridor used by the space object, thus meaning it can be positioned in various places around the Oceans.
- 27.
For a brief analysis of the two terms, see J Carroll, supra note 10, 781 and 780, respectively.
- 28.
Direct eye contact can also reveal facts not clearly shown by telemetry.
- 29.
For example, this was the initial idea behind Sea Launch. On the contrary, SpaceX being involved not only in OBSAs but also in launchers’ development and lifting services is trying to gain the “National Champion” position, with its budget substantially assisted by public commissions. Instead of many see Er Seedhouse, SpaceX’s Dragon: America’s Next Generation Spacecraft, (Switzerland: Springer International Publishing, 2016) 15–21.
- 30.
We refer to states positioned away from the equator and not to Geographically Disadvantaged States as defined in art. 70, p. 2, LOSC.
- 31.
Some typical examples of established launch pads are LAPAN Space Center (Indonesia), Barreira do Inferno Launch Center (Brazil), and Vikram Sarabhai Space Centre (India).
- 32.
See, for example, the case of massive and lengthy strikes of workers’ unions in French Guiana (an Overseas Region of the French Republic) that have led into delay the launching of satellites from Kourou Spaceport in 2011 and 2017; see “Strike delays Ariane rocket launch” (online, Reuters https://www.reuters.com/article/idUSL5E7KK44020110920) and “After Strike Ends, Ariane 5 reaches French Guiana Launch Pad for Dual-Payload Delivery Mission” (online, Space Flight http://spaceflight101.com/ariane-5-va236-rollout-after-strike-delay/ (last accessed 15/01/2018)).
- 33.
Ronald Reagan Ballistic Missile Defense Test Site is a complex hosted in Kwajalein Atoll and Wake Island of the Republic of Marshal Islands that are leased by the US Government. Situated there for more than 40 years, it has affected RMI-US relations in several ways; see for a short comment: N Maclellan, “Kwajalein Atoll and the New Arms Race” (online: UVM http://www.uvm.edu/~jdavis6/pacific/readings/Kwajalein%2520Atoll%2520and%2520the%2520New%2520Arms%2520Race.doc). Luigi Broglio Space Centre was established in 1964 and comprised of a land-based segment on sovereign Kenyan soil and two Fixed Platforms, then located on the High Seas. Even though Kenya extended its territorial sea from 3 to 12 nm in 1972 (Art. 2, The Territorial Waters Act, no 2 of 1972), it was only until 1987 when the two governments signed an updated agreement regulating, among others, territory use issues; see O Ferrajolo, Launch and Tracking Stations, the “San Marco–Malindi Case,” in Lafferranderie, supra note 26, 275.
- 34.
Such limitations will be analyzed at a later stage in this paper.
- 35.
It is obvious that this flexibility is more restricted for fixed platforms.
- 36.
For example, states distant from the equator or other preferred locations, micro-states, mountainous states, etc.
- 37.
See, for example, Copenhagen Suborbitals, which is a nonprofit attempt, based on voluntary work and donor funding; see “The support group” (online: Copenhagen Suborbitals http://copenhagensuborbitals.com/mission/the-support-group/, or SpaceX’s re-usable rockets).
- 38.
The use of offshore platforms may activate the 4th tier of Article VII, OST: “each State Party from whose (…) facility an object is launched.” M Sundahl discusses the options of space objects’ registration launched offshore by a multinational actor; see M J Sundahl, “Legal status of spacecraft,” in R S Jakhu, P S Dempsey, eds, Routledge Handbook of Space Law, (Oxon: Routledge, 2017), 50–52.
- 39.
Since space-faring nations with launching and landing capabilities are limited, so is the list of countries with appropriate National Space Legislation in force. To date, only 22 states have submitted relevant data to the UNOOSA National Space Law Collection; see “National Space Law Collection” (online: UNOOSA http://www.unoosa.org/oosa/en/ourwork/spacelaw/nationalspacelaw/index.html, last accessed 15/01/2018). According to von der Dunk, national space legislation does not only provide stimulus to space industry but also is of vital importance in avoiding unwanted complex legal entanglements when liability issues arise; see Fr von der Dunk, “Fundamental provisions for national space laws” in Proceedings of the Meeting international responsibilities and addressing domestic needs, UN, Vienna, 2006, 261–284.
- 40.
See C Blake, Navigating Export Controls for Small Satellites, 27th Annual AIAA/ USU Conference on Small Satellites, 2013, for relevant difficulties that might arise.
- 41.
See Part 4, infra.
- 42.
See Part 5, infra.
- 43.
Fr von der Dunk, “Towards ‘flags of convenience’ in space?”, Paper Presented at the Transfer of ownership of space objects: issues of responsibility, liability and registration Symposium, sponsored by the International Institute of Space Law and European Centre for Space Law, 2012.
- 44.
Which is an established obligation according to Arts. I and X 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, 27 January 1967, 610 UNTS 205, 18 UST 2410, TIAS No 6347, 6 ILM 386 (entered into force on 10 October 1967) (hereafter “Outer Space Treaty”) and Art. 4 of the Agreement governing the Activities of States on the Moon and Other Celestial Bodies, 5 December 1979, 1363 UNTS 3 (entered into force 11 July 1984) (hereafter “Moon Agreement”).
- 45.
Article II of the Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187, 24 UST 2389, 10 ILM 965 (1971) (entered into force 1 September 1972) (hereafter “Liability Convention”) states that “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight” (similar wording is used in Art. VII of the Outer Space Treaty).
- 46.
North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Merits) (1969) ICJ Rep 3 para. 96. For detailed analysis see Ir Papanicolopulu, “The land dominates the sea (dominates the land dominates the sea)” Questions of International Law, 47 (2018).
- 47.
See Art. 8 LOSC.
- 48.
A relevant example of IW regime application is found in Kennedy Space Centre, Cape Canaveral. Even though launch pads are positioned on reclaimed land (not platforms), they are regulated by IW legislation. See 33 CFR 165.701, Vicinity, Kennedy Space Center, Merritt Island, Florida, security zone.
- 49.
See Art. 2, LOSC.
- 50.
See Art. 17, LOSC.
- 51.
See Art. 20, LOSC.
- 52.
A right granted by the full sovereignty status.
- 53.
Coastal State may adopt regulations on “the protection of (…) facilities or installations” (Art. 21. b), while “any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State” is also considered to be a violation of Innocent Passage (Art. 19. k).
- 54.
Archipelagic Waters consist of the area included within and after the drawing of the archipelagic baselines (Art. 47, LOSC) and contain the sea, the sea floor, as well as the air space above them. Apart from them, archipelagic states are entitled to all other types of Zones (Art. 48, LOSC).
- 55.
See Art. 49, para. 1, LOSC.
- 56.
See Art. 52, LOSC.
- 57.
Maximum breadth of 24 nm from the baselines, Art. 33, LOSC.
- 58.
For relative analysis, see infra. The CZ repression authority applies on internationally wrongful acts always in connection to the land or the TS of a coastal state, while the airspace above it is international. Hence it is almost impossible for an OBSA taking place in a CZ to pose threat to any related customs, fiscal, or immigration rules. However, in case an object landing goes wrong and there is possibility to enter/or if it enters the TS, then sanitary regulations against backward contamination (Art. IX, OST) might be applicable, depending on national legislation.
- 59.
Although exceptions do apply under conditions described in Art. 76, LOSC.
- 60.
We are referring to launch pads carried on fixed/floating platforms and not on submarines.
- 61.
See Art. 60.1.c, LOSC.
- 62.
See Art. 60.2, LOSC.
- 63.
See Art. 56, 57, LOSC.
- 64.
See Art. 56, LOSC. For all other uses (e.g., submarine operations), the water column of the EEZ is considered to be assimilated to the high seas; see Art. 58, para. 1, LOSC.
- 65.
Art. 56, para. 1, LOSC.
- 66.
See Art. 60, paras 4–7, LOSC. The breadth of this zone has often been criticized as insufficient, and several states have asked for its enlargement; for details see A Harel, Preventing Terrorist Attacks on Offshore Platforms: Do States Have Sufficient Legal Tools? (2012) 4:1 Harvard National Security Journal, 131–184. In a similar vein, Laubscher and Nase have suggested for a zone of not less than 40 km of sea surface and 100 km of air space around space elevator facilities, in order for timely warning to be provided to nearby sea and air navigation; see R. S. Jakhu, J N Pelton, eds, Global Space Governance: An International Study (Switzerland: Springer International Publishing AG, 2017) 242.
- 67.
See Art. 86, LOSC.
- 68.
See Art. 1, LOSC.
- 69.
These are navigation, fishing, scientific research, overflight, laying of submarine cables and pipelines, and construction of artificial islands and other installations (Art. 87, LOSC), with the last three being essential to OBSAs.
- 70.
See Art. 87, LOSC.
- 71.
See Art. 88, LOSC. Even though there exists a Peaceful Uses sweeping clause in Art. 301 of the convention, authors felt the necessity of adding a Peaceful Purpose clause within Part VII and many more in Part XI – The Area.
- 72.
Flag state and launching state may not always coincide, making thus authorization issues more complex. See, for example, the Sea Launch case, analyzed in von der Dunk, Fr., Sovereignty Versus Space – Public Law and Private Launch in the Asian Context, Space and Telecommunications Law Program Faculty Publications, Paper 1, 2001, pp. 42–44.
- 73.
See Art. 136, LOSC.
- 74.
See Art. 137, para. 1, LOSC.
- 75.
This hesitation is reflected in Art. 147, where paragraph 1 writes “Activities in the Area shall be carried out with reasonable regard for other activities in the marine environment” vis-a-vis paragraph 3 “Other activities in the marine environment shall be conducted with reasonable regard for activities in the Area,” in an attempt to achieve a balance between uses.
- 76.
See Art. 138, LOSC.
- 77.
See Art. 137, LOSC.
- 78.
See Art. 141, LOSC.
- 79.
Especially referring to fixed or anchored floating installations.
- 80.
See Art. 110. LOSC. For a short description, see G. Tsaltas and G. Rodotheatos, “Maritime Interdiction Operations: A View through International Law Lens” (2010) 2 NMIOTC MIO Journal, 45–48.
- 81.
For a general comment, see P. Manikowski, “Examples of space damages in the light of international space law” (2006) 6:1 Poznan University of Economics Review, 54–68.
- 82.
See Art. 2 of the Liability Convention, Art. 9 of the Outer Space Treaty, and Art 7 of the Moon Agreement.
- 83.
See Principles 2 and 13, Rio Declaration on Environment and Development, 1992.
- 84.
See Art. 194, para. 2, LOSC.
- 85.
Instead of many, see J. Rochette et al., Seeing beyond the horizon for deepwater oil and gas: strengthening the international regulation of offshore exploration and exploitation, IDDRI Study, no 1/14, February 2014.
- 86.
The problem is more likely to spread with the deployment of floating installations and submarines that may operate in different spots.
- 87.
For experience gained from the Oil and Gas Industry, see P. Ekins et al., “Decommissioning of offshore oil and gas facilities: a comparative assessment of different scenarios” (2006) 79:4 Journal of Environmental Management, 420–438.
- 88.
The dynamics of the Space Industry is described in OECD, The Space Economy at a Glance 2014, OECD Publishing, 2014.
- 89.
Where exists a series of airports already operating: Kansai, Kobe, Kitakyushu, Chūbu Centrair (Japan), Chep Lap Kok (Hong Kong), Macao, Incheon (S. Korea), and Ordu-Giresun (Turkey). There are also scenarios for Europe (The Netherlands has considered the option of constructing an airport in its EEZ). For details on the legal ramifications of offshore airports, see P M de Leon and E J Molenaar, “Still a Mile too Far? International Law Implications of the Location of an Airport in the Sea”, (2004) 14:1 Leiden Journal of International Law, 233–245.
- 90.
It has been observed that offshore airports are suitable for specific situations and are not considered to be a generic solution; see P Nijkamp and H Yim, “Critical Success Factors for Offshore Airports. A Comparative Evaluation”, (2000) 35 Serie Research Memoranda, no 35, Faculteit der Economische Wetenschappen en Econometric, Vrije Universiteit Amsterdam.
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Rodotheatos, G. (2019). From Sea to Outer Space and Back: Political, Economic, and Environmental Considerations for Ocean-Based Space Launching Activities. In: Kyriakopoulos, G.D., Manoli, M. (eds) The Space Treaties at Crossroads. Springer, Cham. https://doi.org/10.1007/978-3-030-01479-7_8
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