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Space, Cyber, and Telecommunications Law Program Faculty Publications Law, College of

2010

Too-Close Encounters of the Third Party Kind: Will the Liability Too-Close Encounters of the Third Party Kind: Will the Liability

Convention Stand the Test of the Cosmos 2251-Iridium 33 Convention Stand the Test of the Cosmos 2251-Iridium 33

Collision? Collision?

Frans G. von der Dunk University of Nebraska - Lincoln, fvonderdunk2@unl.edu

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von der Dunk, Frans G., "Too-Close Encounters of the Third Party Kind: Will the Liability Convention Stand the Test of the Cosmos 2251-Iridium 33 Collision?" (2010). Space, Cyber, and Telecommunications Law Program Faculty Publications. 28. https://digitalcommons.unl.edu/spacelaw/28

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Published in the Proceedings of the International Institute of Space Law (2009): 199-209.Copyright 2010, Frans von der Dunk. Used by permission.

IAC-09.E8.3.1

TOO-CLOSE ENCOUNTERS OF THE THIRD-PARTY KIND:WILL THE LIABILITY CONVENTION STAND THE TEST OF THE COSMOS 2251­

IRIDIUM 33 COLLISION?Frans G. von der Dunk

University of Nebraska, College of Law, Space and Telecommunications Law ProgramFvonderdunk2@unl.edu

1. The facts of the collision

space law regime may need elabor~tion

alld refinement to deal with suchincidents in an optimal fashion.

Abstract

Cynics would say: space lawyers nlusthave been waiting for this for decades,and now will of course iInmediatelycall for additional regulation. Butindeed, the recent collision betweenthe Cosmos 2251 and the Iridium 33 On 10 February 2009 the Cosnlos 2251satellite, the first time since the and Iridium 33 satellites collided at anCosmos 954 disintegrated over Canada altitude of some 785 kilometres 'above'that the Liability Convention stands a Northern Siberia, presumably with achance of officially being invoked, relative velocity of at least severalraises a number of issues regarding the hundreds of miles per hour,applicability of that Convention, and iInmediately transfomling at least onetIle level of precision with whicll it can of the Iridium's mobile telephonybe applied. nodes as well as all of the RussianThe present paper undertakes a critical satellite into a debris cloud likely toanalysis of some of these issues. remain in orbit for at least decades. I

Notably, this concerns the involvement Iridium 33 was a comnlercial telecomof a cOInmercial satellite run by a satellite owned by a US privateprivate .operator in the collision (the company, even if de.facto its operationsLiability Convention providing for a were sustained by the US military as anvery nluch state-oriented liability anchor custonler. Cosmos 2251 was aregime), the issue of 'fault' as Russian military satellite also used fordetcnninative of the level of liability of telecommunications.the two principal states involved in the Cosmos 2251 had been launched incollision, alld the concept of 'space June 1993 from Plesetsk in Russia, bydebris' - as Cosnlos 2251 was the Russian Space Agency on top of aapparently non-operational and out of Proton vehicle, and registered by meanscontrol for more than thirteen years - of a note verbale with the Unitedand what to do with it legally, in tenns Nations in June 1994.2 The satellite,of liability as well as otherwise. however, had become defunct and -In view of the gradually growing presumably - completely out of controlpopulation of alIter space with man- during 1995.3 Iridium 33 had beenmade artefacts the Cosmos 2251- launched together with six otherIridium 33 unfortunately but very Iridiunl satellites in September 1997 onlikely will not be the last too-close a Proton launch vehicle froInencounter of this third-party kind. And Bajkonour, the Russia-nln spaceport incynics or not, lawyers will have to Kazakhstan, of which Russia informedaddress the extent to which the CUlTent the United Nations in March 1998.4

Copyright©2009 by Frans G. von der Dunk. Published by the American Institute ofAeronautics and Astronautics, Inc., with permission.

Copyright © 2010 by F.G. Von der Dunk. Published by the American Institute of Aeronautics and Astronautics, Inc., with perrriission.

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Published in the Proceedings of the International Institute of Space Law (2009): 199-209.Copyright 2010, Frans von der Dunk. Used by permission.

2. TIle collision and the LiabilityConvention

There should be - and indeed is ~ littledOllbt that liability issues arising fromthe collision would first and foremosttrigger the applicability of the 1972-L.iability Conventions. The collisionconcerns two space objects involving atleast t\VO diflerent l1ations, the UnitedStates and the Russian Federation, and~ as will be seen - both the question ofliability as between the two respectiveoperators/owners, a11d the question ofliability towards allY potential further\lictims., be they in outer space., in airspace or on earth, are principally to beregulated by the Liability Convention.6

Even as the Liability Convention'sapplication hinges on the damage beingcaused by a space object, whicll in turnis generally defined as an objectintended to be lallllched into outerspace, ill view of the altitude of thecollision there can be no doubt that ittook place in outer space making thetwo satellites space objects for the

7present purpose.Still, it should be noted that as SUCll theapplicability of other legal regilnes fordealing with liability claims is not to befundatnentally excluded. The LiabilityConventioll itself already expresslydeclares that its invocation would notstand in the way of any clailTI regardingthe sanlC event being pursued "in thecourts or administrative tribunals oragencies of a launching State'~.R

F'urthennorc, prior to triggerillg theapplication of the parts of the LiabilityConvention providing for a disputesettlement procedure, the paliies to adispute on liability for damage causedby a space object are supposed to find asol-ution through 'diplolnaticnegotiations9 - which nlay well includetIle option of using other liability rulesor principles than those provided by theLiability COllvention, and/or another

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dispute settlell1cnt procedure t]lat thatprovided for in tIle COllventioll.The GIlly case \vhere., so far, theLjability Convention has been formallyapplied, even if only explicitly referredto in the claimant's statementl()~ thedisintegration of the Soviet Cosmos954 satellite over Canada in 1978, interalia illustrates this very point. In thefinal document settling the dispute itwas agreed by the Soviet Union to payan amount of C~$ 3~OOO,OOO ex gratitI -­and the final document itself did notInention the I~iability Convention. 11

It should be pointed out that in thepresent case the Liability Conventionhas not (yet) been invoked by eitherparty (neither has any other potentiallyliability dispute settlement regill1e beenso invoked), but once it \vould be, suchinvocation would ill11nediately be seennot to lead to easy and autonlaticsolutions and results. There are (atleast) three interrelated aspectscomplicating any such application.,~lllich \vill be discussed in thefollowing three sections.

3. The involvement of a COilllTIercialsatellite

Firstly, a closer look at the collision andpossible application of the LiabilityConvention briIlgs the issue of theexisting lack of clarity of the properplace of private entities in theinternational space law liability regin1cback_ on the table - the operator of theIridium 33 satellite., of course, \vasIridiulTI, a private US company_The issue is 110t so lTIuch that lridillnlitself, in case it would consider doingso., COllld not invToke the LiabilityCOllvelltion. This would be Ulldisputedas the Convention unequivocally onlyallows states to assert claillls under it. 12

In this case, therefore, IridiulTI'I being a"juridical person" of the United States,

Published in the Proceedings of the International Institute of Space Law (2009): 199-209.Copyright 2010, Frans von der Dunk. Used by permission.

might try to convince the USgovenlment to assert a claim on itsbehalf. 13

The problenls arise essentially on theother side of the fence: if the RussianFederation would feel like establishinga claim under the Liability Convention,could it do so against the UnitedStates? The Liability Conventionclearly establishes "the launchingState" to be the liable entity fordamage caused by a space object forwhich it qualifies as such a "launchingState", but only lists the four criteriafor qualifying as SUCll by reference to"a State" - "A State which launches orprocures the launching of a spaceobject [or] A State from whoseterritory or facility a space object islaunched". 14

Does that make the United States the"launching State" of the Iridium 33satellite? As stated, the launch of thatsatellite was undertaken by the RussianSpace Agency on a Proton vehicle,procured by Iridium itself (which is not'the United States'), and took placefrom Bajkonour, which is inKazakhstan. The only legal linkbetween the United States as a state andIridium as a company having procuredthe launch of a satellite therefore is thelatter's US nationality but'nationality' of an operator is not assuch referred to in the context of thedefinition of the "launching State" .15

On the other hand, various scholarshave argued that the link of nationalitywould somehow make the UnitedStates the liable entity in a case like thepresent one, either as the "state whichlaunches" (which thus is effectivelyinterpreted to read 'a state which itselflaunches or whose entities launch') therelevant space object, or as the 'stateprocuring the launch' somehow as if byproxy through such nationality of theactual entity procuril1g it. While afurther argument for legally equating

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the activities of Iridium to those of theUnited States as a sovereign party tothe Liability Convention could bederived from Article VI - which makesa ~. relevant state internationallyresponsible as much for its ownactivities in outer space as for those ofnon-governmental entities - also thisargument is a matter of interpretationdeviating from the literal text of theConvention's clause.] 6

Neither does state practice help much,as various states have detennined thescope of their national authorisationregimes, supposed to take care ofdomestic consequences of internationalliability claims being paid out of state'streasuries, quite differently. Some statesrequire entities with their nationality toobtain a license for undertaking spaceactivities, others focus on other criteriafor such requirements, for examplereferring to the territory from whichrelevant activities are conducted. 17

In the case of the United States,notably, the Commercial Space LaunchAct (which takes care inter alia ofinternational liability) in its presentiteration does require a license withattendant obligations only for thoseintending "to launch a launch vehicleor to operate a launch site ( ... ) in theUnited States", as well as any "citizenof the United States ( ... ) [wishing] tolaunch a launch vehicle or to operate alaunch site (... ) outsjde the UnitedStates" - not, for example, to SOlneoneonly operating the satellite launchedand/or having ordered such launch. Is Intum, the US Comm'unications Act,which deals with the licensing ofsatellite operators, does not require anycoverage of intenlational liabilityclaims under the Liability Conventionthat the United States might be facedwith - and moreover applies itslicensing obligation only to thoseundertaking their satellite operationsfj US

. 19rom terrItory.

Published in the Proceedings of the International Institute of Space Law (2009): 199-209.Copyright 2010, Frans von der Dunk. Used by permission.

Consequently, in the (so farhypothetical) case of .Russia wishing topursue a liability clailTI under theLiability Convention, this might serveas a clinching argunlent for the UnitedStates to deny any qualification as a~'laullching State" with respect toIridium 33.This is further reillfore-ed by the factthat the launch of the satellite was notregistered \vith the United Nations bythe ·United States, again providing clearevidence that the Ullited States does notconsider itself a 'launching state,20(whereas Russia merely lnentioned it inthe note verbale, in contrast to its alsoproviding for proper registration ofsome other spacc objects).More problematically still, the laLlnch[rOlTI Bajkonour Inakes bothKazakhstan (as the state whoseterritory was used for the launch) andRussia (""hose launch facilities were soused) into launching states for thelridiunl 33.21 Even if the United Stateswould be considered a launching state,a clainl between two launchillg stateswould be thus at stake!The Liability Conventioll, essentiallydealing wit]1 third-party liability is - tosay the least - not geared to suchscenarios. It deals \vith joint launchingstate-scenarios only to the extent thatjoint liability towards third parties isconcenled ~... where it provides: "Alaunching State which has paidcOlTIpensation for danlage shall havethe right to present a claim forindemnification to other participants inth.c joint lallnching. The participants ina jOillt launching may concilldeagreenlents regarding the apportioningalnong themselves of the financialobligation in respect of which they arejointly and severally liable.,,22 ..~In sum: in the end the qualification ofRussia as a launclling state also ofIridiunl 33 to use a non-US launcllprovider laullching from nOll-US

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territory and facilities l'vould 1110ke .fornon-applicability' (~f' the Liability'Convention to the collision at issue.This, it should be stressed, was tl1econsequence of the choice of theprivate US cOll1pany cOllcemedwithout further (fannal) interferenceby th.c US authorities23 - leading to theSOl11cwhat ironic result that Russia, assuccessor to a Soviet Union which hadbeen so vehclnently against grantingprivate enterprise any legal personalityunder thc space treaties, would now befundalnentally unable to recover anydaillages under the LiabilityConvention as a consequence of theSoviet Unjon's Sllccess in tllis

j4respect ... ~

Secondly, even if Iridiu111 would havechosen to have its satellite launched,for exanlple., froIII KOllrou byArianespace, clainls under the LiabilityConvention should have beenaddressed towards France and not theUnited States., as an argumcllt that theUnited States would be a launchingstate merely on account of Iridium'snationality, gi,ren the lack of clarity onthe illtemational level and tIleinterpretation of the United States aselnanating from its national acts, meetswith considerable probablyinsurmountable - problems.

4. TIle issue of 'fault'

The difficulties with applying tilCLiability Convention discussed aboveleft asidc, it would be clear that anyliability issues under the LiabilityCOllvention would be a ll1atter forArticle III, as concerning "dalnagebeing caused [by a space object]elsewhere than on the surface of theEarth to a[nother] space object". Inthose cases liability w'ould beapportioned according to fault.

Published in the Proceedings of the International Institute of Space Law (2009): 199-209.Copyright 2010, Frans von der Dunk. Used by permission.

PriJl1a .facie, this seems to be a verysensible and logical approach. Spaceobjects are operated consciously andknowingly, and if one of theln leaves

nominal or orothcnvise starts to behave and move

it to illtoanother, the operator of the [ortnerwould be held liable on the basis of

for the by thelattcr., whereas the operator of the latterwould in the of fault not beliable for an~y damage susta1tled by the[oriller as a result of the collision""Fault' thus, presumably of itsseelningly obvious clarity, was notdefined any further yet, firstinternational satelllte collislon as perIridiulTI 33 versus Cosmos 2251 raises

questions in this Prin1G

facie., to be sure, as varlOUSCOll1ll1entators already pointedout, such an analysis \vould seem topoint at liability on the Russian side, asit was with doubt the Cosmos2251 that, having enjoyed a complete

of control from ground,strayed [raIn its original nominal orbitso as to cross the path of the fll1lyfunctioning Iridium 33.However: 'fault' has been defined as:'"1" error or orof conduct; any deviation fronlprudcl1ce or duty resulting fronlinattention, badfaith, or Inismanagement. ( ... ) 2. Theintcn1iona1 or tomaintain sonle standard of conductwhen that failure results ill hann to_...... ,"' ........._.. person. 'Fault liability' thenis ""liability based on SOl1le degree of

, alternatively "atYl1c of liability in which the plaintiffmust prove that the defendant's

was either orintentional" and as such the opposite ofstrict liabi lity2?

In other ,vords: a 'fault' preSllmes achoice for the person at faldt, a choice

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between at least two options of"conduct", w11ere that person whetherby "intention' or 'negligence' haschosen an option (that is by flawed"jttdgmcnt") leadl11g to the hannconcerned'! where choosing anotheroption would not have led toharnl.Applying this gClleric definition of'fault' to case at hand, however,would lead to the cOllnter-intuitivcconclusion that, if entity, Iridiumwould be the liable one. As wascontinned by Iridiunl spokespersonElizabeth Mailander, companyindeed could have moved the satelliteout of the way if awarning. By contrast., ever sil1ce(~oslnos 2251 had run out of controlSaIne years there wasnothing the Russians COllld have doneto 11lake 1 a collisionwith IridiumAt the saIne tinle: could Russia reallyhold the United or thecompany conccmed29 liable for'da111age' done to a lifeless piecemetal in outer space the logicalconclusion of the above reasoning?While it might still serve SOlnepractical purposes and/or representSOlne real to the OWller~ inabsence of applicability of any conceptssuel1 as 'abandonlllent' and 'salvage' inouter law generally speaking it isstill for the operator to make adetennination ofIn order to circum\'ent the abo've first­lc\rcl conclusion as leading "'to a resll1twhich is manifestly absurd orllnreasonable,,30 one \vould have tonlove to a analysis.preSul11ption of a Cll0icc of action onboth sides does not only preSUlne actualcapability to manoeuvre, butknowledge of a need to do 80'\ in otherwords: a sound' which tomake a "judgemcllt" in the sense of

Published in the Proceedings of the International Institute of Space Law (2009): 199-209.Copyright 2010, Frans von der Dunk. Used by permission.

and would be able to replace the 33 onshort .L..L ....... ~ .... •

At the same time all parties hedgedtheir bets, for one good reason: withthe hundreds of of debris(counting only the traceable ones) andin view of their lifetime there is afrom-theoretical possibility for decadesinto the future that third parties' spaceobjects be damaged. This wouldbring i11to play Article IV of theLiability Convention, which statesrelevant part: "In the event of dalnagebeing caused elsewhere than on thesurface Earth to a spaceof one launching State or to persons orproperty on board such aby a space object of another launchingState, and of damage thereby beingcaused to a third State or to its naturalor juridical persons, the first two Statesshall be jointly and liable tothe third State, to tIle extent illdicatedby the following: ( ... ) (b) If thedalnage been to a spaceobject of the third State or to personsor property on boardelsewhere than on the surface of theEa11h, their liability to the third ..)lateshall on the oj'the ./irst fvvo 5"ftates or on the .fault qf'

wholn eitherresponsible. Note, that if forexample - a French satellite would bedalnaged by a piece debris ofIridillm-Cosmos collision, it vvould notInatter theactually be f'r01l1 the one or fron1 theother; what matters is solely which ofthe two was at fault the primarycollision.Mutatis saIne wouldapply in case of third-party dalnage onearth, for which as SUCll absoluteliability would apply, but the issuefault would deterrnine the distribution

"""'-JJ.J.J."........... J.J."'-H~f.... J......,'J.J. to third ...... n-r..- .. r'loC'

amongst Rllssia and the UnitedStates. 34

Black's Law Dictionary's definitiol1 asto appropriate course of __ "'.,....., ........If the Russia11 authorities would havehad knowledge of at least a substantial

a collision, they might perhapsnot have been able to Inove Cosnlos

lout of the but \\louldcertainly have been able to infonnIridiunl that a mal10euvre might be

A failure to then do sowould ccrtaill1y establish a largemeasure of fault on their ascan be glanced, however, the Russianauthorities ~o far have denied anyknowledg(~ potential for acollision.

the of(dis)proof shifts again to the US side.Not only is the US space surveillancenetwork generally considered to be themost advanced and sophisticated

according to aarticle aerospace analyst T.S. Kelsofound that the Pentagoll's public datashowed that the two satellites wouldhave missed each other by a mere 584Inetres whilst error raninto several kilometres. Also lTIovingto this second level of analysis,

still seell1S to lead to theunsatisfactory result of making one

of perfectlysatellite in its nOlninal orbit liable fordalnage caused to another satellite,which had stopped having apparentuseful hlnction many years earlier and

left as aconseqllencc long since.One lnight of course argue that all this

at least for the tilne meretheory, since both parties have desisted

any formal and are actuallylooking for a de-escalation of anythreatening dispute. 32 Rllssia does notwish to pursue a somewhat p~rverse

claim for dalnage to a useless piece ofjunk, whilst has

announced it had a spare ready anyway

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In sum: the absence of a clear, or atleast \vorkable definition of 'fault' thattakes into C011sideration the specifics ofspace activities and satellites, such asthe virtllal absence of possibilities ofOIl-site investigatiollS looking for the'real" causes of the accident, ITIig}lt stilltum Ollt to present a major problem ifsonlcwhcre in the future debristraceable to the Cosnl0s 225] -Iridiunl33 collision causes damage to a thirdstate's satellite.

5. The issue of 'sQace debris'

A final important elel11ent in thediscussion on \vhom to blall1c prilllarilyfor the collision, not discussed so far,concerned the element of "deviationfrom prudence or duty" or "failure toInail1tain some stalldard of COl1duct", inthe ternlS of Black's Law Dictiol1ary.Sonlc comnlcntators have SOllght tocircumvent the countcr- intuitive resultof an application of the LiabilityConvention to the letter by seeking thefault of Russia in the lucre fact that ithad 'allo\vcd' its satellite to run out ofcontrol ill the first place, thus creating apiece of space debris and aln10st'willingly' accepting the risk it nlightlater on cause SOlne damage. Indeed,had Russia by doing so violatedapplicable rules of international law,the step to declaring it conseqllentlyliable for the harmful consequences ofits acts ~rould have been relativelysn1a11.However, even apart frolll the lack ofclarity abollt \vhcthcr the disablc111cntof tI1e (~oslnos 2251 back in(presumably) 1995 was a sudden andunforeseen event or vvhether theoperators had seen it COining, back in1995, let alone i11 1993 wIlen COSlll0S

2251 was launched., there was no suchthing as a "duty" or "standard ofCOllduct" requiring Russia to, for

205

example, use the last bit of on-boardfuel to relegate tIle satellite to aj-un.kyard orbit or to l1ave it de-orbited.Article IX ~f the Outer Space Treaty~

the single relevant clause in thiscontext (al1d of course ill force forRussia in 1993 al1d 1995) lTIerelyrequired states to "conduct ex.plorationof them so as to avoid their harmfulcontalllination"~ which is at best anobligatioll of effort rather tl1a11 anobligation of result, of t1J~ing in goodfaith rather then being obliged to avoidany harmful contan1ination.Only ill recent years 11as tl1isfundamental lack of legal limitations tothe 'freedom to create space debris'started to be curbed - thanks, in firstinstance, to the Inter-Agency SpaceDebris (~oordination Committee(lADe) and th.e guidelines it haddrafted by Scptenlbcr 2007.35 Thoughstill in voluntary' fashion, theguidelines on debris mitigationincluded strong recomnlendations tomove satellites nearing their elld of lifeto junkyard orbits or to dc-orbit them;guidelil1es which are novy beingimplemented as licensing requirementsfor private operators ill some states aswell as having been. lifted to a higherlevel of visibility, political andultinlately also legal relevance bynlcans of a UN Resolutiol1.36

Whilst such developnlents areobviollsly to be applauded., theyequally Ob\T101ISly COnfirlTI that back in1993 or 1995 nothit1g of the so]1existed - in other \vords, only withgreat difficulty could Russia be held toha\le fallen short of "deviation from[applicable] prudence or dllty'~ or"failure to maintain some [applicable]standard of conduct".Even no\v, there is no apl"licable clear­cut and conlprehensive legal obligationof the sort under illternational law.Once such an obligation \vould becomeestablished beyond doubt - whether by

Published in the Proceedings of the International Institute of Space Law (2009): 199-209.Copyright 2010, Frans von der Dunk. Used by permission.

international treaty or as a matter ofundisputed customary' international law

the Liability COllvention couldconsiderably gain in effectiveness or... ..l'- ........ 'Iloot_ .... applicability, since 'fault'could be established by criteria thatmake sellse in the particular context of

activities.In sum: the collision also confirlTIS that

is value further'juridifying't obligations to lTIinimiseboth tlle of space debris andits potentially hannful consequences~ifonly to allow the Liability (~onvention

to work more in contextof fault.

international law-orie11ted liabilityregil11e back on the table.In Vie\\l of the absence so far of damagecaused to the 'real' third parties (that isbeyond United IridiunlRussia), the Ljability Convention hasnot been invoked yet~ but whether itwould stand the test once it lrvou/cl be, isstill a matter of grave doubt. 'The cowmay 110t have left ban1, but itsellses the opening and tilne may berU11nlllg out to close the barn door.

Elldnotes

. See of 13 June1994, p. 2. Cosmos 2251 waserroneously referred to as2551 here.

5. Convention on International Liabilityfor Dall1age Caused by Space Objects(hereafter Liability Convention),London/Moscow/Washington, doneMarch 1972, entered i11to force 1SeptelTIber 1972; 961 UNTS 187; TIAS7762; 2389; UKTS 1974

1. See "It Finally Happened .TwoSatellites Collide!", Launcllspace Staff,Special for SpaceDaily.colll, 11February 2009. The Report refers tosome 300 new detectable fragments;the US statement delivered at the 46thSession of tIle UNCOPUOS Scielltificand Technical Subconlmittee ofFebruary to some 700.

4. Sec ST/SG/S.ER ..E/332, of 19 MarcIl] 998, p. 2.

. See statement, "Russial1 andsatellites collide", BBC "News, 12February 2009, with AFP athttp://news.bbc.co.uk/2/hi/science/nature/7885051.stln.

6. Concluding remarks

The situation is further aggravated bythe key involvement of a partyon one side of tIle dispute bringingdiscussions on a lTIOre private

Whilst the above analysis may not eventaken on board all facts

or even facts which as such could notbe subject to cOITectiollS as a

italready shows that the very firstseemingly clean-cut case for applyingthe Liability Convention does noappear so clean-cut anYIllorc. Further

encounters of the third-partykind will, unfortunately but inevitably,becol11e lTIOre rather than likely,and hence l11ake tIle question ofwhether the Liability Convention stood

test at this rather relevant.Especially where 'fault' COlnes into

in view of the specifics of spaceactivities, the lack of any definitiolltakillg these into account and the lack

binding tomeasure 'fault' against~ the LiabilityConvention certainly leaves much to bedesired in tenllS of solving the problelTI,theoretical as it may SeelTI for tIle tilne

206

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16; Cmnd. 5068; ATS 1975 No.5; 10TLM (1971).

14. Art. I(c), Liability Convention;

16. Cf. Art. 3], esp. sub (1), Viennaon the

Vienna, done 23 May 1969, entered intoforce 27 1980; 1] 55 UNTS331; UKTS 1980 No. 58; Cmnd. 48] 8;ATS J974 No.2; 8 ILM 679 (1969); onthe interpretation of treaty "".1LL'U ..'''''·0.

I . Cf. the PrivateEnterprise and Public Interest in the'Ezlro/Jean Spac'escape t (1998), 130-1on on Activities,]982: 963, ]8 Noven1ber ] 982;National ofWorld, Vol. I (2001), at 398~ SpaceLa\\' Basic Legal Docunlcnts, E.II.I;

flir Luft- lIndWeltraulnrecht (1987), at 1]; 134-7 011

the United Space18 July 1986, 1986 Chapter 38;National Space Legislation of theWorld, Vol. 1 (200 1)~ atLaw-Basic Legal Documents,E.I: 36Zeitschrifl Luft- und Weltraunrrccht(1987), at 12; 142-4 on Russia's Law ofthe Russian Federation 011 SpaceActivities, 5663-1, August1993, effective 6 October 1993:National ofWorld, Vol. T (2001), at 101; and 149­51 on South Africa's Space AffairsAct, 6 1993, assel1tcd to on23 JtUle 1993, No. 84 of 1993; Statutes

the Republic of South Africa Tradeand Industry, Issue No. 27, 21-44;Natiollal Space Legislation of theWorld, Vol. I (2001), at 413.

15. See ftlrther of thisargument e.g. the author's Sovereigntyversus Space - Public Law and PrivateLaunchSingalJOre .Journal 0.1' International

(2001),38-44.

XIV, Liability

11 See Protocol Between theGoveffil11cnt C~anada theGovernment of the Union of SovietSocialist Republics of 2 April 1981;

Law Legal Doculnents,A.IX.2.2.

7

IO. See the Statement of Claim byCariada~ Space La"v Basic Legal

: further B.A.Hurwitz"l Reflections on the Cosmos

Incident, theThir(v-Seco/1c{ Colloqlfiunl on the La~v

~f'Outer Space (1990),350-3.

VIII(l), Liability

12. See Art. VIII, Liability Convelltion.

The Liability C~onvention~s

applicatioll would be triggered bydamage "caused by ( ... ) space

(cf. II, III; I Ideals witll dalnage caused in outer

itself and III with F't<:l1"'t'1f'lrro

caused in airspace or on the ground),whereas clainls only involving

and astate essentially are exclllded frolll the

of the application theConvention (cf. Art. VII(a»).

x. Art XI(2), Liability COllvention.

ArttConvention.

9

for the discussion on thefundalnental relationship between

and object"extensively S. Gorove, IssuesPertaining to the Legal Definition

Object", 2(Jnd l-)pace Journal (1995)~ ] 36-45.

207

Published in the Proceedings of the International Institute of Space Law (2009): 199-209.Copyright 2010, Frans von der Dunk. Used by permission.

19

1~ . Sec. 70104(a)(I) & (2), C0111lnercialSpace Transportation - C~Ol1llnercial

Space Launch Activities, 49 U.S.C~.

7010 I (1994); elnphasis added. Cf.also sub (3) & (4).

See already Sec. 301,Communicatiolls Act, 19 June 1934; 47U.S.C. 151 (1988); 48 Stat. 1064;rcquiring a license for anyone to "use oroperate any apparatus for thetranslnission of (... ) communications orsignals by radio" from the territory orquasi-territory of tIle United States.Though the Comnlunications Act hasbeell thoroughly anlcndcd ovcr tIleyears, this clause has relnainedfundamentally unchanged.

20 Also for application of theRegistration Convention (Conventionon Registration of Objects Launchedinto Outer Space (hereafter RegistrationConvention), New Yark, done 14January 1975, entered into forcc 15September 1976; 1023 UNTS 15; TIAS8480; 28 UST 695; UKTS 1978 No. 70;Cmnd. 6256; ATS 1986 No.5; 14 ILM43 (1975)) the exact same notion of'launching state' triggcrs the relevantobligations; cf. Artt. I(a), II, IV.

21. The two states have conclllded abilateral agreelnent by llleans of whichRussia agrees to reimburse Kazakhstanfor any international clailTI addresscdto the latter as a conscquencc of alaul1ch from Bajkonour; see Treatybctween the Govenl1nent of Russia alldthe G.overnment of the Republic ofKazakhstan on the Leasing of theBaikonour-ColTIplex, of 10 Decelllber1994; also M. Hoskova, The 1994Baikonour Agreements in Operation,Proceedings 0.[ the ForfJJ-SecondC-lolloquium on the La11' o.f'Outer Space(2000), 265-8. Of coursc, this is onlyan inter se arrangelnent, not capable of

208

touching upon the definition as such ofeither states as a launching state oreven upon the obligation of either stateto answer relevant claims under theLiability Convention.

22. Art. V(2), Liability Convention; cf.also Art. V( 1), providing that "a Statefrom whose territory or facility a spaceobject is launched shall be regarded asa participant in a joint launching."

23. The main exception here might wellhave been the applicatiol1 of US exportregulations, notably the infamousITAR's (International Trade in AnnsRegulations) under the Arll1s ExportC~ontrol Act of 1976, 22 U.S.(~. 2751;al1d the United States MUllitions List(USML), 22 C.F.R. 121, last revised 1April 2008; for the purpose of ensuringthat the launch of the satellite outsidethe US docs not lead to highly­sensitive dual-use know-how fallinginto the hands of those representing asecurity threat to the United States.However, in view of the complexity ofthis issue as well its non-relevance forthe liability and launching state issues,this will not be discussed preselltly.

24. At least, this is the situation underinternational law; the scenario wherebyRussia could apply donlestic law toIridium's possible liability as aconsequence of its satellitc beinglaunched from a Russian launchfacility - and thus supposedly havingacquired the Rllssian licenseinandatory for those activities; cf. Art.9(2), Law of the Russian Federation onSpace Activities - is not furtherinvestigated here.

25 Black's LalV D;ctionaly (8th

cd.)(2004), 641; elllphasis added.

Published in the Proceedings of the International Institute of Space Law (2009): 199-209.Copyright 2010, Frans von der Dunk. Used by permission.

27

26 Black'L't' Latv Dictionar.J" (8th

ed.)(2004), 933.

The O.~ford ComJ)anion to~4mericanLall' (2002), 297; emphasisadded.

'E I A' d P~. n an Ssoclate ress report(Borenstein, Birch), 13 February 2009.

19.... It should be noted that Art. III,Liability Convention, in this contextrefers to "its falllt or the fault of.persons for whom it is responsible",which might nlake the United Statesliable once one would accept thatprivate procurement leads toqualification of the state \vhoseC0111pany did so procure the launch as alaunching state, as discussedbcforc.

30. Under the Vienna Convention onthe Law of Treaties, Art. 32 allows forll1eans of interpretation suppleJnentaryto terms, object, purpose and contextof the treaty in case application of thelatter leads to "to a restilt which ismanifestly absurd or unreasonable'''.

31. See "Satellite crash prediction isplagued with u'nccrtainty"', NewScientist, 13 Febnlary 2009, athttp://\VW\V.newscie11tist.cOln/aliicle/do16592-sateIiitc-crash-prediction-is­plagued-with-uncertainty.html.

32. Formally, of course, the LiabilityConvention would allow either partyuntil 10 February 2010, a full yearafter the col1isio11, to assert their clail11;see Art. XCI).

33. Art. IV(1), Liability Convention;el11phasis added.

35 lADe Space Debris MitigationGuidelines, IADC-02-0 1, Revision 1,Septenlber 2007.

36. Space Debris Mitigation Gliidelincsof the United Nations Coml11ittee onthe Peaceful Uses of Outer Space(A/62/20) endorsed by GeneralAssembly Resolution 62/217, of 21December 2007; A/RES/62/217.

34 Cf. Art.Convention.

IV(2), Liability

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