Liability for damage caused by space objects

After the first rocket launches in the late 1950s, it became clear that space objects, both at launch and on return to the Earth, can pose danger to people, the environment, and property. It is natural that with the expansion of the national space programs across the globe in the early 1960s increasing the number of rocket launches, cases of space objects falling onto Earth also became more frequent. The United Nations responded to the problem by adopting the Convention on International Liability for Damage Caused by Space Objects in 1963. The Convention was developed in a single paradigm in sync with other international treaties in the field of space activities and regulates the liability of states arising from activities related to outer space. Since its adoption, the Convention has been applied in several cases, however, only a handful of them have become public. This article discusses the contents of the Convention and the examples of its application to the disputes arising out of damage caused by space objects.

1.Introduction

Fourth of October 1957 is considered the beginning of mankind's space-age. That day, the Union of Soviet Socialist Republics (USSR) launched into orbit the first spacecraft "The Simplest Satellite-1" (PS-1) on the carrier rocket "Sputnik, "developed based on the intercontinental ballistic missile"R-7". Since then, over 6,000 successful rocket launches have taken about 10,680 spacecraft into different orbits of the Earth. 6,250 of those are still in space, but only 3,300 are operational. In addition, more than 28,000 objects of space debris are registered in outer space, which are catalogued and under constant observation. According to mathematical calculations, the total number of unaccounted objects of space debris from 1 mm to 10 cm is about 129 million units with a total mass of more than 9,200 tons. The problem of space junk and debris worsens every year and can lead to the so-called "Kessler effect,"[1] when space debris leads to the complete unsuitability of near space for practical use. According to NASA's calculations, the volume of accumulated debris in low Earth orbit is sufficient for the Kessler effect to occur since 2007, implying that, on average, every five years, large collisions will begin to occur, which will lead to an avalanche of even more debris, collisions in space and debris falling onto Earth.

After the first rocket launches, it became clear that space objects, both at launch and on return to the Earth, can pose danger to people, the environment, and property. It is natural that with the expansion of the national space programs across the globe in the early 1960s increasing the number of rocket launches, cases of space objects falling onto Earth also became more frequent.

A Thor DM-21 rocket was launched into space carrying a satellite at the launch centre Cape Canaveral (the United States/US) on 30 November 1960. Sometime after the launch, the rocket exploded, and its debris fell on Cuba, killing a cow named Rufina. Fidel Castro called the accident a "cruel attack and violation of Cuba's air space." Shortly after, about 250 Cubans with several cows demonstrated in front of the US Embassy in Havana. "The Yankees are killing us without mercy," "Eisenhower, you murdered one of my sisters," etc., said the banners of the protestors' cows. Eventually, the Cuban and US governments agreed to settle the damages claim for 2 million USD. The world remembered Rufina as the most expensive cow in history.

Nevertheless, the problem of damage caused by space debris was growing and required international legal regulation. In this regard, a working group at the United Nations (UN) began to develop a draft Convention on International Liability for Damage Caused by Space Objects (the "Convention") in 1963. By the Resolution at its 1499 plenary meeting on 19 December 1966, the UN General Assembly requested the Working Group to continue to work on the elaboration of an agreement on liability for damages caused by the launching of objects into outer space.[2]

While the Convention was being developed, space objects continued to fall to Earth regularly. However, due to the lack of a legal framework, no standard solution applied to the issue of compensation for damage. As a rule, spacecraft debris was simply returned to the country concerned under article 5 (3) of the 1967 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space.[3] The only compensation that could be claimed from the launching State was the costs incurred in fulfilling the obligations to detect and return the space object or its components. Interestingly, the preparatory materials for the Convention contain a letter from the representative of the US, who informed the Committee on the Peaceful Use of Outer Space (COPUOS) about the fact that four fragments of the Soviet spacecraft fell on the territory of Texas, Oklahoma, and Kansas and were returned to the USSR in September 1970.[4]

Eventually, the Convention was approved by the UN General Assembly on 29 November 1971. As of 1 September 2021, ninety-eight States have ratified the Convention, and another twenty-one States have signed but not ratified the Convention.

2.The Convention at a Glance

2.1. General terms and conditions

The Convention was developed in a single paradigm in sync with other international treaties in the field of space activities. Thus, it is based on universal principles, has cross-references to other documents, and operates within a single terminology of space law. In addition to the existing body of space law, developers introduced in Article I such terms as:

(a) "Damage" mean[ing] loss of life, personal injury or other impairment of health; or loss of or damage to the property of States, or of persons, natural or juridical, or property of international intergovernmental organizations. In addition, article XII explains that the amount of damage is determined in accordance with international law and the principles of justice and equity, in order to provide reparation in respect of the damage as will restore the person, natural or juridical, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred;
(b) "Launching" include[ing] both successful launching and an attempted launching;
(c) "Launching State" mean[ing]:
(i) The State which launches or procures the launching of a space object,
(ii) The State from whose territory or facility a space object is launched;
(d) "Space object" includ[ing] component parts of a space object, as well as its launch vehicle and parts thereof.

Thus, the Convention establishes a nexus between the subject of the damage ("launching State"), the object that may cause damage ("space object"), the action that may result in harm to the health and property of third parties ("launch") and the negative result of such action ("damage").

2.2. Allocation of liability for damage

The Convention establishes several types of liability for damage, including 1) absolute (Articles II and VI), 2) conditional (Article III), 3) joint and several absolute (Article IV(1)(a)), and 4) joint and several conditional (Article IV(1)(b)).

The absolute responsibility of the launching State for damage caused on the surface of the Earth or to an aircraft in flight arises without the need to establish the fault of the launching State (Article II). The limitation of liability of the launching State is permitted only if it proves that the damage was caused in whole or in part by gross negligence or by an act or omission on the part of the claimant State, or by the natural or legal persons it represents and committed with intent to cause damage. As an example, if the claimant State, having been notified of a possible fall of spacecraft debris, did not establish a no-fly zone in the relevant territory or did not evacuate people in the area of the fall of debris, despite having the time and resources to evacuate (Article VI). However, no exemption is granted in cases where the damage resulted from the activities of the launching State that violate international law, including, in particular, the UN Charter and the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Article VI). An example of that scenario would be the launch of spacecraft not aimed at peaceful exploration of space and celestial bodies.

Conditional liability occurs if the damage is caused by a space object of launching State A to a space object of launching State B, or persons or property on board of such a space object (other than damage on the surface of the Earth). In such a case, State A is liable only to the extent that the damage is caused by its fault or by the fault of the persons for whom it is responsible (Article III). This provision of the Convention assumes that States should conduct space activities with due diligence, or as stated in the Preamble to the Convention, with all "precautionary measures" and, therefore, they understand that "these objects may sometimes cause damage." Therefore, compensation for damage is allowed only if the fault of the relevant party is established.

Joint and several liability is provided for in cases where:

(i) as a result of the harmful interaction of space objects of two launching States, the damage is caused to a third State or its natural or legal persons (Article IV (1)), or
(ii) when two or more States jointly launch a space object, including if one State launches and the other provides its territory for the launch of a space object (Article V (1)).

A noted, joint and several liability is divided into two types. First, the damage can be caused by several States to the third State on the surface of the Earth or aircraft in flight, leading to so-called absolute solidarity (Article IV(1) (a)). Let us recall that absolute liability does not require proof of the fault of the violator. Still, a possible element of protection is the existence of gross negligence or an act or omission on the part of the claimant State committed with intent to cause damage. Second, the damage can be caused to a space object of a third State or persons or property on board that space object elsewhere than the surface of the Earth, leading to the so-called conditional joint and several liability (Article IV(1) (b)). Let us recall that conditional liability is determined based on the fault of any of the first two States or the fault of the persons for whom either of these two States is responsible.

In all joint and several liability cases, the burden of compensation for the damage shall be apportioned between the responding States in accordance with the extent to which they were at fault. If the extent of the fault of each of these States cannot be established, the burden of compensation for damage shall be apportioned equally between them. Such apportionment shall be without prejudice to the right of a third State to seek the entire compensation due from any of the launching States or all launching States which are jointly and severally liable (Article IV(2)).

In case of joint and several liability, the launching State, which has paid compensation for the damage, has the right of recourse to the other participants of the joint launch. Participants in a joint launch can enter into agreements on the distribution of financial obligations among themselves, for which they are jointly and severally liable. Article XIII of the Convention allows concluding additional interstate agreements confirming, supplementing or expanding its provisions. Such agreements shall not affect the right of the injured State to claim all compensation for damage under this Convention from any of launching States or all launching States that are jointly and severally liable.

An example of such agreement between a State that provides its territory and a State that launches spacecraft is the Lease Agreement for the Baikonur complex between the Government of the Russian Federation and the Government of the Republic of Kazakhstan[5] , which regulates this issue. Article 8.4 (d) distributes liability for damage as follows:

"in the event of damage caused by the activities of the Baikonur cosmodrome during the implementation of Russian space programs, Russia is liable as the launching State in accordance with the Convention on International Liability for Damage Caused by Space Objects of 29 March, 1972. At the same time, the Republic of Kazakhstan is not considered as a participant in the joint launch or a launching state.
In the case when the launch of a space object is carried out by Russia jointly with the Republic of Kazakhstan, the liability for damage is determined by article V of the said Convention.
In the event that the launch of a space object is carried out by Russia jointly with other countries, these countries are jointly and severally liable for any damage caused in accordance with said Convention. At the same time, the Republic of Kazakhstan is not considered as a participant in the joint launch or a launching state."

2.3 Persons who may be harmed

The Convention has clearly defined the range of persons whom the launching State may harm. This catalog includes the third State that is harmed or natural or legal persons located on its territory, including citizens, residents, or persons temporarily located on its territory. By way of the exception, the Convention does not apply to nationals of the launching State itself and foreign nationals at the time when they participate in operations related to a space object from the time of its launch or at any subsequent stage up to its descent, or at the time when they are, at the invitation of that launching State, in the immediate vicinity of the area of the planned launch or return of the object. In this case, the compensation is made within the framework of the contractual relationship or the domestic law of the launching State and not within the framework of the Convention.

It should be noted that, according to the Convention, the mechanism for compensation for damage operates at the interstate level, and individuals and legal entities are not entitled to make claims under the Convention (Article VIII). Therefore, if State A has caused damage to a natural or legal person (and not directly to the launching State B), the dispute over compensation for damage to a private company is resolved at the interstate level through (i) the State of "nationality of the injured party", (ii) the State in whose territory the damage was caused to any natural or legal person, or (iii) the State in which the person who suffered the damage is permanently resident.

Similarly, suppose the damage is caused by a legal entity that launched a private space object from the territory of a State. In that case, the requirements under the Convention must still be imposed on the State from whose territory the object was launched. The launching State, in turn, has the right to submit, within the framework of its domestic law, recourse claims against such a company (or insurer) for compensation for the amount of damage that was paid to a third State under the Convention.

2.4. Persons who may be brought liable

The Convention regulates the liability of the so-called Launching States, by which it understands either the state which launches or procures the launching of a space object or the State from whose territory or facility a space object is launched. Nevertheless, the Convention is silent about the liability of non-governmental actors in relation to their activities in space.

As noted above, the Convention must be read in conjunction with other outer space treaties, such as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, effective as of 10 October 1967 (the Outer Space Treaty) and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, effective as of 11 July 1984 (The Moon Agreement).

Article VI of the Outer Space Treaty establishes that states parties to the treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that those national activities are carried out in conformity with the provisions set forth in the Outer Space Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate state party to the Outer Space Treaty. When activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with the Outer Space Treaty shall be borne both by the international organization and by the states parties to the Outer Space Treaty participating in such organization.

Furthermore, Article VII of the Outer Space Treaty states that each state party that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each state party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Outer Space Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in the air or outer space, including the moon and other celestial bodies.
Similarly, Article 14 of the Moon Agreement establishes that the parties to the Moon Agreement shall bear international responsibility for national activities on the moon, whether such activities are carried on by governmental agencies or by non-governmental entities. The Moon Agreement also envisages that detailed arrangements concerning liability for damage caused on the moon may become necessary as a result of more extensive activities on the moon in the future.

Therefore, international space law liability exists only between the States, which bear liability for the non-governmental actors existing and operating under their respective jurisdictions.

2.5 Mechanism for resolving claims for compensation for damage

A claim for compensation for damage is made to the launching State through diplomatic channels. Suppose a State does not maintain diplomatic relations with the launching State concerned. In that case, it may request another State to present its claim to that launching State or otherwise represent its interests under this Convention. It may also file a claim through the UN Secretary-General, provided that both the claimant State and the launching State are members of the UN (Article IX).

The general limitation period under the Convention is one year from the date of damage or the determination of the launching State that it is responsible for the damage (Article X). For example, it often takes time to determine the identity of fallen debris, as in the case of the Soviet satellite with a mini nuclear reactor, which fell on the territory of Canada in 1978, which was hardly identified by scraps of Cyrillic markings on its parts.

Further, suppose the full extent of the damage is not known. In that case, the claimant State has the right to review the claim and submit additional documentation after such time limits have expired, but not later than one year after the full extent of the damage has become known.

According to Article XI of the Convention, a claim for damages under the Convention by a launching State does not require that the claimant State or the natural or juridical persons it represents have previously exhausted any local remedies available to them. However, the State, natural or juridical person to whom the damage has been caused, has the right to claim compensation for the damage through the State courts or the executive authorities of the launching State. To avoid "double compensation," a State is not entitled to present a claim under the Convention for the same damage for which a claim is being pursued in the courts or administrative tribunals or agencies of a launching State, or under another international agreement which is binding on the States concerned.

Suppose a claim settlement is not reached through diplomatic negotiations within one year from the date the claimant State notifies the launching State that it has submitted documentation for its claim. In that case, the parties concerned shall establish a Claims Commission at the request of either party. The Claims Commission would consist of three members, including one member appointed by each party within two months from the date of the request to establish the Commission. The claimant States acting jointly shall collectively appoint one member of the Commission. The Chairman is chosen jointly by the two parties. Suppose the parties do not agree on the choice of a chairman within four months from the date of the request for the establishment of the Commission. In that case, either party may request the Secretary-General of the UN to appoint a chairman within a further two-month period. If a party does not appoint its own member of the Commission, the Chairman shall act as the sole member of the Commission at the request of the other party.

The Commission must make a reasoned decision, which is final and binding if this has been agreed between the parties. Otherwise, the Commission makes a final decision of a recommendatory nature. As a rule, the costs are distributed equally between the parties.
The decision or determination is made as soon as possible and no later than one year from the date of its creation, but the period may be extended if necessary. A certified copy shall be transmitted to each party and the UN Secretary-General for publication of the decision or determination.

3. Examples of liability cases

3.1. The fall of the satellite "Cosmos 954" in Canada (1978)

The USSR launched a satellite in September 1977, of which the UN Secretary-General was notified.[1] However, on 24 January 1978, the satellite descended from orbit and entered the dense layers of the atmosphere, where it partially collapsed. The debris fell on the territory of Canada. According to the Soviet Embassy in Canada, the satellite carried a nuclear reactor with uranium-235 isotopes. According to the engineers ' calculations, the embassy said that the satellite was supposed to burn up in the dense layers of the atmosphere, and its insignificant remains could fall in the area of the Aleutian Islands. The USSR expressed its readiness to send its specialists to Canada to eliminate the consequences of the satellite crash.

The Canadian government independently undertook an operation to search for, remove the satellite debris and decontaminate the surface, of which the UN Secretary-General was notified.[7] The costs of liquidation of the consequences amounted to about fourteen million Canadian dollars (CAD). However, only about CAD six million were included in the request of Canada toward the USSR under article II of the Convention, which provides for absolute liability.

Diplomatic negotiations resulted in the signing of the protocol on the conclusion of a settlement agreement in Moscow on 2 April 1981. The protocol was signed by the Canadian Ambassador to the USSR and the Deputy Minister of Foreign Affairs of the USSR. It provided the settlement of Canadian claims and compensation of CAD three million.

3.2. Collision of the satellites Iridium 33 and Cosmos 2251 over Siberia (2009)

Another textbook example is the collision of the satellites Iridium 33 and Cosmos 2251 at an altitude of 785 km over Siberia on 10 February 2009.

Cosmos 2251 was launched from the Plesetsk cosmodrome in 1993 by a Proton rocket and was used by the Russian military for telecommunications purposes. Presumably, in 1995, Cosmos 2251 ceased to function and control over it was lost. The Iridium 33 was launched from the Baikonur cosmodrome in 1997 by a Proton rocket, formally owned by the private company Iridium LLC, but presumably provided a communication channel to the US military. The UN was notified of the launch of both satellites.

The collision of these satellites exposed the shortcomings of the Convention. First, since both satellites were launched from territories controlled by Russia and Russian Proton missiles, the launching State was Russia, which formally led to the coincidence of the plaintiff and the defendant in one person (Article III). Secondly, as noted in the commentary to the Convention, legal entities can expect compensation for damages. However, they must act through the State of which they are residents, or they can apply to the judicial authorities of the launching State. Thus, to resolve the dispute at the interstate level, the participation of US official bodies was required, who, apparently, decided not to "shine" their satellite. Third, the scenario of a spacecraft collision in space presupposes the establishment of a fault within the framework of Article III of the Convention ("is liable only if the damage is caused by its fault..."). Since at the time of the collision in 2009, Cosmos 2251 had been out of control for fourteen years, the trajectory could only be changed by a working Iridium 33. Therefore, it was the Iridium 33 that could have avoided the collision, and it was its fault that could have been seen in the incident. At the same time, by 2009, the failed Cosmos 2251 probably did not represent any value, and the collision did not cause damage to the Russian satellite. As a result, neither party has made any claims for damages under the Convention to the other.

It should be noted here that in 2007, the Inter-Agency Space Debris Coordination Committee (IADC) issued recommendations for reducing the amount of space debris. In particular, the recommendations suggest that the spacecraft flight program should include the disposal stage, that is, the removal of spent spacecraft and launch vehicle orbital stages from areas that are densely loaded with functioning spacecraft (decapitation, removal from the orbit, or change to a less loaded orbit and destruction).[8] Although this document is recommendatory, in theory, it expands the list of actions that can lead to negative consequences. In particular, the "uncollected garbage" that caused the damage may also be a "culpable" action.

4. Uncertainties in the Convention

The Convention was a product of its time when access to outer space was the patrimony of sovereign states. Rocket launches were just a few and the problem of space debris did not yet exist. Today, when space debris has become a considerable problem that continues to evolve exponentially, the question is whether the Convention applies to damage caused by the debris. As noted above, the Convention establishes that a space object includes component parts of a space object, as well as its launch vehicle and parts thereof. However, it is not clear whether inactive, dysfunctional, and disintegrated parts of space objects are encompassed by the term “space object”. The collision of the satellites Iridium 33 and Cosmos 2251 over Siberia in 2009 sparked a debate over the application of the Convention to space debris. The fact that the U.S. did not bring liability claims for damage caused by debris to Iridium 33 may demonstrate that there is still a question of whether the Convention applies to the space debris. This accident also gives rise to a practical debate on whether the owners must be responsible for de-orbiting their space objects.

Another aspect that may require clarification is whether the Launching States are responsible for damage caused by their nationals. Although the interpretation of the Convention in conjunction with the Outer Space Treaty leads to the conclusion that the Launching States are liable for their nationals, the increased role of private actors in outer space may require more clarity in this regard. This may also call for a model law developed at an international level to uniformly regulate recourse actions by Launching states against their nationals who are responsible for damage caused to other states of their nationals.

Finally, it is far from clear whether “damage” under the Convention also includes damage to the environment. Given the lack of clarity on this issue, when a damaged state seeks compensation for damage caused to the environment, it can only rely on the goodwill of a Launching State, as was the case when the debris of the satellite Cosmos 954 fell on Canadian territory. As discussed above, the dispute was settled amicably, in the spirit of transparency and cooperation. This, however, may not always be the case, especially in the upcoming era of the highly competitive space race between the states and private actors.

5. Conclusion

The Convention is an important part of the international legal system for space activities. Although the Convention does not regulate certain areas, such as compensation for damage caused by private launch companies, liability in purely domestic cases, damage to the environment, and other increasingly important issues, the Convention is a cornerstone of space law. As can be seen, the gaps in international private law regulation are actively filled with soft law norms (for example, the IADS recommendations), generally recognized principles, and customs in the space industry.

The increased involvement of private actors in the space industry prompts unified international regulations. Such regulations could be made in the form of a model law on damages caused by space objects and developed under the auspices of the Committee on the Peaceful Use of Outer Space. Until then, each state has its own national rules for tort claims, including for damages caused by space objects.

[1] The theory was first described by NASA engineer Donald Kessler in 1978. D. J. Kessler, Burton G. Cour-Palais. Collision Frequency of Artificial Satellites: The Creation of a Debris Belt // Journal of Geophysical Research: journal. — 1978. — Vol. 83. — P. 63
[2] https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html
[3] <https://www.un.org/ru/documents/decl_conv/conventions/astronauts_rescue.shtml>.
[4] <https://www.unoosa.org/pdf/reports/ac105/AC105_087_and_AC105_087Add1E-lc.pdf>.
[5] Lease agreement for the Baikonur complex between the Government of the Russian Federation and the Government of the Republic of Kazakhstan (dated December 10, 1994, as amended on November 9, 2017).
[6] No. A/AC.105/INF.368 of November 22, 1977.
[7] A/AC.105/214 and 214/Corr.1 of February 8, 1978; A/AC.105/217 of March 6, 1978 and A/AC.105/236 of December 22, 1978.
[8] IADC Space Debris Mitigation Guidelines (2007) <https://www.unoosa.org/documents/pdf/spacelaw/sd/IADC-2002-01-IADC-Space_Debris-Guidelines-Revision1....
*NASA image. NASA Orbital Debris Program Office, photo gallery