Exploring Space in the Spirit of Kinship
other means ” conflicts with other provisions of the Treaty . Pursuant to Article VIII , objects left in space remain under the ownership and control of the State that put them there . 24 In fact , pursuant to Article VII of the Outer Space Treaty and Article III of the Liability Convention , States are “ internationally liable ” for damage caused to an object in space belonging to another State . 25 Yet leaving the objects in situ , or giving them wide berth in order to avoid liability , essentially results in perpetual occupation of the surface upon which they rest . Certainly , this runs afoul of the non-appropriation principle encapsulated in Article II .
C . Due Regard
In addition , Article IX of the Outer Space Treaty requires all activities in outer space be conducted with “ due regard ” to the corresponding interests of other States , 26 which suggests that States should not interfere with or otherwise despoil the objects of another . But “ due regard ” is a standard that remains undefined . It is also used in the United Nations Convention on the Law of the Sea which states that freedom of the high seas “ shall be exercised by all States with due regard for the interests of the other states in their exercise of the freedom of the high seas .” 27 An arbitral tribunal considered the meaning of “ due regard ” in 2015 and determined that :
the ordinary meaning of “ due regard ” calls for the [ first State ] to have such regard for the rights of [ the second State ] as is called for by the circumstances and by the nature of those rights . The Tribunal declines to find in this formulation any universal rule of conduct . The Convention does not impose a uniform obligation to avoid any impairment of [ the second State ’ s ] rights ; nor does it uniformly permit the [ first State ] to proceed as it wishes , merely noting such rights . Rather , the extent of the regard required by the Convention will depend upon the nature of the rights held by [ the second State ], their importance , the extent of the anticipated impairment , the nature and importance of the activities contemplated by the [ first State ], and the availability of alternative approaches . 28 ( emphasis added )
Space Treaty in Its Defence , 50 Proc . L . Outer Space 526 , 530 ( 2007 ). 24 Outer Space Treaty , supra note 6 , art . VIII .
25 Id . art . VII . Liability Convention , supra note 15 , art . III . To compound matters , both the Outer Space Treaty and Liability Convention liability is not based on ownership of the object , but on status as a so-called “ launching state .” Per the treaty regime , any one of four States may be considered a “ launching State ” for liability purposes : 1 ) the State which launches ; 2 ) the State which procured the launch ; 3 ) the State from whose territory the object was launched ; and 4 ) the State from whose facility the object was launched . Liability Convention , supra note 15 , art . I .
26 Id . art . IX . 27 United Nations Convention on the Law of the Sea art . 87 ( 2 ), Dec . 10 , 1982 , 3 U . N . T . S 1833 . 28 The Chagos Marine Protected Area Arbitration ( Mauritius v . U . K .), Case No . 2011-03 , Award ,
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