Legal Ramifications of Damage by Space Debris and the Adequacy of the Liability Regime in the 21st Century.
July 28, 2021, 2:56 a.m.
Pens of Law students
Profile of the Author - Aishwarya Gairola is a third-year law student at Lloyd Law College.
The news of Long March 5B’s debris falling in the Indian Ocean with no recorded injury came as a sigh of relief for the international community that had been closely monitoring the trajectory of the Chinese rocket for days. There were large apprehensions and speculations in the international community, which were fuelled by the mishap caused by the spacecraft’s predecessor in May 2020 damaging several buildings.
The remnants of space objects, such as rockets and satellites, plummeting back to Earth is not a new phenomenon. With the number of debris objects estimated to be over 128 million, the probability of space debris entering into the earth’s atmosphere and causing damage is particularly high. This raises the following questions- Do space debris pose a serious threat to the advanced civilization of the 21st Century and who will be liable in the event of space crashing in a developed and heavily populated region causing immense damage?
SPACE DEBRIS: MEANING AND THREAT
Space Debris, known as space junk or space waste, is defined as non-functional, human-made objects like fragments and elements of Rockets or Satellites in the Earth’s orbit. The 60 years of space activity since the launch of the first man-made satellite, Sputnik, has borne witness to as many as 6000-plus launches that have placed around 10,000 satellites into space and an estimated number of about 28600 debris objects are regularly tracked by the Space Surveillance Networks with approximately 34000 debris object capable of dealing harm to the objects in space. The already alarming statistic doesn’t even come close to the actual number of unregulated debris objects floating around space. If NASA space debris experts are to be believed, the total amount of space debris will keep on increasing resulting from the perpetual collisions in space. The collision will eventually produce impenetrable debris that will encase the Earth, with even the smallest of debris causing substantial harm.
The space debris, orbiting the earth, not only pose threat to the objects in space but larger debris, reentering the Earth’s atmosphere after surviving the exposure heat resulting from the energy conversion of air drags, can cause potential damage to both persons and property on Earth. The fragments of the Soviet Union’s reconnaissance satellite, Kosmos 954 powered through a nuclear reactor, crashed in Canada. Though the trajectory and the site of the crash were calculated well in advance and timely warnings were issued, the odds in favour of radioactive debris going rogue upon reentry were substantially high. The possibilities of unmanned, unregulated man-made debris wreaking havoc upon uncontrolled reentry, causing damage to life and property alike, has resulted in the establishment of rules and procedures for ascertainment of liability for the damage caused by these falling objects.
LIABILITY FOR DAMAGE CAUSED BY SPACE DEBRIS
The launch of the first artificial earth satellite has revolutionised the discourse surrounding the legal regulation of space activities. Space activities and outer space operations, apart from the prospect of exploration, also entail the possibility of inflicting harm, both in outer space and on earth. The initial absence of any formal rule and procedure regulating the outer space activities in the midst of various new excursions undertaken by different countries led to the formulation of the first major treaty governing the use of space, the Outer Space Treaty of 1967. Basic rules of the “Outer Space Treaty” connected with international responsibility and liability were even enlarged upon in the Liability Convention. The 1972 International Liability for Damage Caused by Space Objects, known as the Liability Convention, ascertains the liability for the damage caused by the space objects and ensures equitable measures for compensation to the victims.
THE 1972 INTERNATIONAL LIABILITY CONVENTION
Liability imposes a legitimate duty on states to demonstrate their lawful commitment towards one another. Under the 1972 Liability Convention, Liability alludes to a situation or incident where a State, having caused damage to the people or property of another state, commits compensation proportionately to the damages. In the event space debris falls on Earth, causing damage to life and property, the launching State  shall be absolutely liable to compensate for damage caused by its space object on the surface of the earth or to any aircraft amid flight. A launching State is any State that “launches or procures the launching of an object into outer space”, and any State “from whose territory or facility an object is launched.” The amount ascertained for compensation is restricted and proportional to the damage caused directly by the space objects. When two or more States jointly launch a space object, the states become jointly and severally liable for damage caused. The country whose territory is used to launch the satellite also falls within the category of joint launching. For damages caused elsewhere than on the surface of the earth to a space object of one launching space or to any person or property on board, liability on the launching state will arise only for the damage caused by the fault of the object or fault of the people for whom the launching state is responsible.
The launching states shall be absolutely liable to compensate for damage caused by its space object on the surface of the earth or to aircraft flights. However, the scope of the damage is limited by the definition clause and includes loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or judicial, or property of the international intergovernmental organisation. The claimant state may initiate the procedure to claim compensation for damage caused by space debris through the diplomatic channels in the launching state. Where no diplomatic relations exist between the countries, the claimant state may ask another state to represent its claim or can represent its claim through the Secretary-General for member nations of the United Nations.
The claim for compensation for damages has to be presented to the launching state within a period of one year from the date of occurrence of the damage or from the identification of the launching state. If the claimant state was oblivious to the damage, the state can still claim for damage within one year following the date on which it discovered the said damage. The prerequisite of exhausting local remedies does not restrict the claimant state from taking the recourse of the Liability Convention to claim for damages.
THE INADEQUACY OF THE EXISTING LIABILITY REGIME.
The liability regime adequately plays out in a vacuum; the lack of damage dealt by the remnants of China’s biggest rocket, Long March 5B that landed in the Indian Ocean required no apparent claim for compensation. However, in the event of damages caused by the falling space debris in heavily populated or industrially developed areas, the successful imposition of a liability regime yielding desirable effects remains largely debatable. The splashdown of the remnants of Long March 5B with certainty about the details of the launching state and the proper identification of the space refuse could have aided in establishing liability, even in the event of the remnants crashing in a densely populated region, but the hypothetical landing of the March 5B and the presumption of ease in ascertaining liability is not a testimonial to the adequacy of the existing liability regime under the 1972 Liability Convention. Of the three crucial factors pertinent to create a well-rounded claim for compensation: the identification launching state, proximate damage and the fault-based liability; all fall short to keep pace with the advancement of nations in the race-to-space.
LAUNCHING STATE: AMBIGUITY IN IDENTIFICATION
The concept of ‘launching space’ was developed to facilitate the proper identification of space objects to strengthen the claim of the claimant state. However, the simple mechanism to aid in the identification fails to take into account the major hurdles like unidentifiable debris fragments, lack of monitoring the international establishment and the indistinguishable component part, each with a launch history of its own.
The increasing operation of overseas acquisitions to stay relevant in the international space market has ridden the identification mechanism of the identification of the launching state under the 1972 Liability Convention with ambiguity. The acquisition of the German-owned ‘Rapid Eyes Satellite’ by the Canadian Company, ‘Blackbridge’, creates a gap in establishing the claim for damage caused by the Rapid Eyes Satellite, with Germany as the launching state having no effective control over the satellite. Another infestation of fault in the concept of the launching state lies in the unaccounted, ever-increasing statistic of the debris. Despite the mandatory registration of the space objects with the United Nations, regulated by the Convention of Registration, drafted with the aim to provide for attribution of nationality and identification, the high speed orbiting speed of the space debris (as much as 10 km per second) makes them untraceable with no apparent signs or marks of identification, rendering the mechanism redundant in a time when human activity pervades all spaces.
The growing commercialisation of space activity makes exploration particularly vulnerable to the misuse of technology. Technology shatters the traditional norms of human limitations and the outreach of technology has contributed to the growth of cyberwarfare. The manipulation of innocuous satellites commanded to obliterate or deorbit another satellite by a bad estate agent, with no inquiry into the incident, could land the launching state in extreme trouble. The increasing use of cyber warfare does not qualify to be a uniform concept that could have easily crossed the mind of the drafters of the Conventions, yet the weaponization of technology poses a serious threat not only to the launching states but to the very concept.
DAMAGE: ABSENCE OF ASSESSMENT MODEL
The cardinal rule of estimation of compensation to be proportional to the damage under the Liability Convention fails to establish the argument for the adequacy of the existing liability regime. The term “damage” means, for the purpose of the Liability Convention itself, “loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organisations.” This general definition leaves an open-ended discussion on the types of damages covered by the regime set by the Liability Convention. Liability for damage caused by space objects is now becoming of greater practical relevance due to the growing use of outer space technologies and the related increased risk of incidents involving space objects. Because damage awards under the Liability Convention are, in theory, unlimited, it is all the more necessary to determine exactly what kinds of claims can be brought. The absence of an internationally established standard for monitoring or assessment of the kind of damage and the absence of a mechanism for inquiry into the underlying cause of the accident, weaken the claim of both the claimant state and the launching state. The attribution of state liability with the owner and not with the causation of the damage with no system of inquiry into the cause of the damage creates a suspension of foul play with no redressal mechanism. Additionally, the ‘damage’ under the Liability Convention only covers the damage resulting from collision and dismisses the damage caused by the interference of radio transmission and interfering. In other words, if an earth-bound, deorbited debris disrupts the transmission of another satellite, substantially harming the operation of the satellite, the launching state of such space object or debris goes scout-free.
The Liability Convention also fails to compensate the Launching State for any damage dealt by such state, in its territories or to its people, by the components of the launching state’s space objects, that were later launched by other states. If a single satellite is launched by a state, A, then State A would be entirely outside the reach of the liability regime, even if the object or refuse that caused the damage was launched by another state. Likewise, if any part of the International Space Station were to fall back into the territory of the United States of America, the harm caused to the property or the people, would not be covered under the liability regime, despite the fact that the parts causing harm were launched states other than the USA.
FAULT: UNCERTAINTY IN MEANING
While the concept of launching state and damage are the most relevant factors contributing to the assessment of the compensation and claim for damages, identification of the launching state and the assessment of damage largely become operational only after the mishap. The fault-based liability establishes a standard of proof for the launching state in the absence of any customary law or emerging principle establishing and governing state practice in this regard. However, fault liability, like its other counterpart, falls prey to uncertainty and ambiguity. The United Nations treaties on Outer space or any other treaty governing the space operation of state-sponsored and private entities do not provide the definition of ‘fault’. Although the treaty directs the state to produce proof of fault for the damage, the treaty fails to define even the ‘standard of care’ for establishing fault, only interpreting potential fault, which is the closest any state will come to establishing fault-based liability in space against any other state. The absence of indication in the Liability Convention as to the standard of care for outer space activities, the establishment of the fault-based liability, that could potentially aid in identifying the origin of the debris and keeping the states from launching faulty objects in space is rendered ineffective.
The new age of technology has borne witness to the perforation of human activities in all spaces, but the laws governing the activities have failed to keep up with the new developments. With a record number of 6000-plus launch operations placing as many as 10000 satellites in space in the last six decades, while setting new milestones in the study of the universe, also raises serious concerns in the light of countless accidents resulting in substantial damage caused by space objects retracting to Earth. The Liability Convention was capable of resolving the issues pertaining to space exploration for the better part of the last century, but the existing liability regime under the Liability Convention is as good as non-existent in the absence of any positive addition and modification in the definitions and the rules governing space exploration.
The international regime pertinent to compensate the claimant state for damage on Earth caused by state objects, pacing ahead with sloth speed, has lost sight of the launch programs that are taking mammoth steps every day. The blind spot in the liability regime left by the limited foresight of the drafters and the constrained interest to initiate modification has facilitated the poor functionality of the Liability Convection in the 21st Century. The restricted scope of identification of launching states, the lack of assessment of damaged and the underlying cause of the incident, the reliance on fault-based liability to govern and regulate the objects in the state with no treaty or convention clearing defining the meaning of ‘fault’ and the blatant disregard to the serious criminal manipulation of technology successfully establish the fact of the inadequacy of the present liability regime.
The redundancy of the Liability Regime with no assessment for determining the underlying cause of the accident and ambiguous terms regulating the standard of care with respect to launches provides the state and non-state actors ominous liberty. With no mechanism to remove bigger debris from space in order to cure the problem at its origin, the modification of the liability regime is the only way forward. The changes in the Liability Conventions are necessary to actualize the purpose with which the Convention was conceived. Trade-offs in liability regimes are inevitable, but despite those, the scope of liability should be determined by the principle that in the events of retraction or crashing of debris resulting in damage on earth, the assurance that the liability, instead of taking the role of a classic textbook example of legal recourse, will compensate for the damage to the extent that justice and equity demand it.
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