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The Effectiveness of the Liability Regime in

the 1972 Liability Convention on Damage

Caused by Space Debris to the Space Object

of a State in Outer Space

Laura Verëll

Name of supervisor: dhr. dr. M. Karavias

Date of submission: 27th July 2017

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Abstract

The purpose of this thesis has been to analyse whether the liability regime contained in the Liability Convention 1972 provides an effective system on damage to space objects in outer space caused by space debris. With the increasing number of abandoned non-functional space objects in outer space and with an absence of effective regulation on space debris, there is a need to consider whether an effective liability regime for damage caused by space debris exists. In this context, it has been examined whether the Liability Convention is applicable on damage caused by space debris and whether it provides an effective liability system. Article III of the 1972 Liability Convention provides for the liability of a launching state in the case of damage caused by its space object to the space object of another launching state in outer space. It has been analysed that article III is applicable on ‘space debris’ as it is included under the term ‘space object’. This is concluded by examining the object and purpose of the Convention as well as the travaux

préparatoires. Subsequently, it has been examined whether article III is effective on

damage caused by space debris. Article III applies a fault-based regime, meaning that a launching state causing damage is held liable provided that it has breached a legal norm. It can be concluded that the ‘fault-based’-liability regime is ineffective on space debris owing to practical and legal problems. The main legal problem is based on the

impossibility of states to prove fault due to the absence of a standard of care for activities in outer space. In such a situation a non-fault liability regime which exclusively responds to damage is a more appropriate alternative. For this reason, this thesis closes with a proposal for an effective regime based on strict non-fault liability applicable on damage caused by space debris in outer space, which eventually will incentive states to cooperate to tackle the problem of space debris.

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Table of Contents

Abstract... 2

I. Introduction... 4

II. The problem of space debris in outer space I. Introduction... 7

II. The definition of ‘space debris’... 7

III. The scientific background to the danger of space debris to spacecraft... 8

III. The concept of international liability in international law I. Introduction... 9

II. The historical development of the concept of international liability... 9

III. The various types of international liability and its difference to the concept of international responsibility... 11

IV. The liability regime in the Convention on International Liability for Damage Caused by Space Objects (1972) I. Introduction... 13

II. The background of the 1972 Liability Convention... 13

III. The concept of international liability under the Liability Convention 1972... 14

IV. The applicability of the Liability Convention on space debris... 15

i. Introduction... 15

ii. The definition of ‘space object’... 15

iii. The coverage of space debris under ‘space object’ ... 16

V. The effectiveness of the ‘fault liability’-regime in the Convention on space debris... 17

i. Introduction... 17

ii. The meaning of the term ‘fault’... 17

iii. The necessity of a standard of care... 18

iv. The scope of the term ‘damage’... 20

v. Identifying the launching state causing damage... 21

V. A proposal for an effective regime for the compensation of damage caused by space debris I. Introduction... 23

II. The proposal of international responsibility as an effective regime... 23

III. The proposal of international liability as an effective regime... 23

i. The legal and policy considerations underlying the concept of non-fault (strict or absolute) liability... 24

ii. Analysing the effectiveness of a regime based on non-fault strict liability 25 i. An effective regime based on non-fault liability... 25

ii. An effective regime based on the strict liability regime... 27

iii. A proposal for an effective regime based on non-fault strict liability... 27

VI. Conclusion... 30

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Chapter I

Introduction

Since the first launched space vehicle in 1957, outer space has become increasingly filled with man-made space objects. As outer space is considered to be a ‘common area’ (res

communis), all states are allowed to have access to outer space.1 Space vehicles are

launched by states to explore and exploit outer space. However, when the space objects become malfunctioned it is practice that states will abandon them, causing the objects to remain in orbit as debris. With the increasing amount of space debris the security of future space activities in outer space will be severely affected by the growing risk of collision.2

Furthermore, none of the existing space treaties contain specific provisions on how to deal with the problem of space debris. In reaction to the growing number of space debris, guidelines were adopted by the Inter-Agency Space Debris Coordination Committee (IADC) and were later transposed into guidelines of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS).3 These Space Debris Mitigation Guidelines intend to reduce the growth of space debris by regulating ongoing and future space activities. However, the Guidelines are non-binding and will not completely solve the problem of damage caused by debris. 4 Due to the fact that each collision of debris generates more debris, it is necessary to make rules concerning the reduction of the already existing space debris. While there are some technological proposals, there is still no practice of states removing debris from orbit causing the current lack of a custom rule.5

1 Dupuy & Viñuales 2015, p. 82, 83; Article I 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 (1967).

2 COPUOS 2013, p. 2.

3 Mey 2012, p. 251; Pelton 2013, p. 32; IADC Space Debris Mitigation Guidelines 2002, revised 2007;

COPUOS, Space Debris Mitigation Guidelines, Report of 15 June 2007, as annexed to Doc. A/62/20. The IADC is an international forum consisting of several governmental bodies involved in the coordination of activities regarding man-made and natural debris in space.

4 Salter 2016, p. 235; Mey 2012, p. 252.

5 Schladebach 2013, p. 75, 82-85; Salter 2016, p. 232, 233. Mey 2012, p. 253. Since the beginning of the space

age general practice of states has been the ‘fire and forget’-practice, in which states launched objects into outer space. However, they did not find it important to consider (how) to get the objects down again. Of course, in order to remove space debris from orbit working technological proposals were necessary, but states have not been active in encouraging (national) research on measures to remove debris from orbit (General Assembly Resolution 45/72 1990, paragraph 22). Still many states seem unwilling to individually invest in higher environmental standards which causes additional costs, but benefits all spacefaring nations.

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To incentive states to solve the problem of space debris an effective liability system may provide a solution. So, the question may arise as to how the liability of states is regulated in the case that space debris causes damage to the active space object of another state? The United Nations took the lead by adopting the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies in 1967, containing two articles on liability.6 However, more specific rules were required which is why the United Nations adopted the Convention on International Liability for Damage Caused by Space Objects in 1972. This Convention applies two separate regimes of liability depending on the location the damage occurs. The Convention regulates the liability of damage caused by a space object to the surface of the earth or to another space object in outer space. So far, only one claim has been presented on the basis of the Liability Convention, which was based on damage to the earth’s surface.7 However, in the end the Convention was never applied as the two nations settled.8

This thesis will analyse the liability regime applicable on damage caused by a space object to a space object of another state in outer space. This thesis is based on the research

question:

Does the 1972 Liability Convention provide an effective liability regime for damage to the active space object of a state caused by space debris in outer space? If not, which regime can be proposed to make the Convention effective on this damage?

This thesis will analyse the liability regime contained in the Liability Convention from an internal perspective in order to examine its effectiveness on damage caused by space debris. First of all, through a descriptive legal analysis of the liability regime it will be assessed whether the Convention is applicable on space debris and if so, whether the Convention provides an effective liability system for damage caused by space debris. The Convention has been interpreted by applying the rules of the 1969 Vienna Convention on

6 Article VI, VII of the Treaty on Principles Governing the Activities States in the Exploration and Use of Outer

Space Including the Moon and Other Celestial Bodies

7 Pedrazzi 2008, p. 15. In 1979 the Convention was invoked because the satellite Cosmos 954, belonging to the

Soviet Union, fell on Canadian territory. The satellite contained nuclear power sources posing a risk of damage to people and property. However, the Convention turned out to be too unclear to be actually applicable on the dispute.

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the Law of Treaties. The Convention is interpreted by examining the ordinary meaning of its terms in their context, its object and purpose and its travaux préparatoires.Finally, through a normative analysis the thesis will close with a prescriptive proposal for an effective regime applicable on damage caused by space debris. The proposal is an

outcome of the comparison of the concept of international responsibility with international liability and of a legal and policy analysis of different liability regimes.

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Chapter II

The problem of space debris in outer space

I. Introduction

Since the start of the space age in 1957 humans are polluting the outer space environment with artificial debris at a high rate.9 More than hundred million pieces of debris move at high speed in space orbit which poses a serious danger of damage to spacecraft.10 This chapter will analyse the practical problem posed by space debris to spacecraft in outer space.

II. The definition of ‘space debris’

Current international space law treaties contain no legal definition of ‘space debris’.11 The United Nations defines space debris in its Space Debris Mitigation Guidelines as: ‘all

man-made objects, including fragments and elements thereof, in earth orbit or re-entering the atmosphere, that are non-functional’.12 This specific definition has been taken from the Mitigation Guidelines of the IADC and appears in multiple scientific sources as well.13 While the definition is included in the introductory section of the non-binding UN

Guidelines, according to Pelton this is an internationally agreed definition of space

debris.14 Regarding this definition space debris only includes products of human activity it does not include particles of natural origin, such as meteorites and asteroids.15 Examples are defective or broken-up satellites, exploded rocket upper stages and fragments resulting from collision of existing debris.16

9 ESA March 2017 (accessed 10 June 2017).

10 Salter 2016, p. 224; ESA March 2017 (accessed 10 June 2017). 11 Bressack 2011, p. 745.

12 COPUOS, Space Debris Mitigation Guidelines, Report of 15 June 2007, as annexed to Doc. A/62/20. 13 IADC Space Debris Mitigation Guidelines 2002, revised 2007. Example of sources incorporating the

definition: ESA March 2017, ISO 2011 (accessed 17 July 2017).

14 Pelton 2013, p. 32; Schladebach 2013, p. 65. 15 Schladebach 2013, p. 65.

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III. The scientific background to the danger of space debris to spacecraft A number of factors need to be taken into account in order to understand the danger of space debris to existing spacecraft in outer space.

First of all, the largest part of debris in outer space is currently located in the altitude range of 160 to 2000 kilometres, called the Low Earth Orbit (LEO).17 Some debris in LEO will re-enter the atmosphere due to the attraction of the earth. However, this gravitational removal only works for debris in orbits up to 700-800 kilometres, debris on higher altitudes will remain in orbit for decades and even centuries.18 On top of that, the amount of space debris in LEO will continue to increase through collisions between pieces of debris itself. This so-called ‘Kessler syndrome’ is the primary problem regarding space debris.19 Moreover, most commercial satellites, manned space stations and other

spacecraft operate in LEO. Since the authorization of private activities in outer space it is possible for governments and private companies to initiate projects which caused a raise in number of space objects.20 Already numerous collisions between active space objects and pieces of debris in LEO are confirmed.21 An example is the Iridium-Cosmos collision, which was the first collision between two intact satellites. In 2009 the commercial

‘Iridium 33’-satellite collided with the inactive Russian ‘Cosmos 2251’-satellite in orbit creating a cloud of debris consisting of more than 2000 pieces.22 Consequently, due to the large quantity of active space objects and space debris present in LEO collision is likely to occur.

Secondly, space debris can be dangerous because of the speed at which it travels in LEO. Fragments of debris in low orbits have an average speed of 10 km/s which makes it possible for even millimetre-sized particles to cause considerable damage to operating space objects on its path.23 An additional problem to this is the fact that these small objects (up to 5 centimetres) cannot be tracked in order to predict the location to move spacecraft away from a collision trajectory.24

17 Lampertius 1992, p. 450; IADC Space Debris Mitigation Guidelines 2002, revised 2007; Salter 2016, p. 225. 18 Bressack 2011, p. 747; Salter 2016, p. 225; Pelton 2013, p. 7-8; ESA March 2017, p. 3.

19 Pelton 2013, p. 6. 20 Kerrest 1997, p. 134-135. 21 Bressack 2011, p. 760.

22 Bressack 2011, p. 760-762; Secure World Foundation 2010. 23 ESA March 2017, overview; Bressack 2011, p. 746, 747.

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Chapter III

The concept of international liability in international law

I. Introduction

In order to analyse and understand the liability system in the Liability Convention with regard to space debris, it is first of all necessary to get a better understanding of the concept of liability in international law. That is why this chapter will elaborate on the concept of international liability by describing the historical development of the concept, its various forms and its difference from the concept of responsibility.

II. The historical development of the concept of international liability

The origin of the concept of international liability can be found in Roman law, in which the Latin maxim: ‘sic utere tuo ut alienum non leadas’ expressed the rule to use your own property in such a way as not to cause harm to others.25 This is an early formulation of the ‘no harm’ principle, on which the concept of international liability is based.26 Despite its old roots, international liability was generally unregulated in international law for a long time.27 While the no harm principle, evolved from early environmental case law and enshrined in the Stockholm and Rio declaration, was recognized by the International Court of Justice (ICJ) as customary law at the international level, the principles of liability and compensation in cases of transboundary damage were not that well developed.28 Case law and treaties on the concept showed variation and disparity in content.29 In the Trail

Smelter Case of 1941 the arbitral tribunal had to decide on the consequences of Canada

for a smelter on its territory which released emissions of sulphur dioxide causing damage to crops near the border of the United States.30 The tribunal decided that Canada was liable irrespective of the degree of diligence of the owners of the smelter. This judgement

25 Rao 2004, p. 224. 26 Sucharitkul 1996, p. 829. 27 Rao 2004, p. 224.

28 Rao 2004, p. 224; Dupuy & Viñuales 2015, p. 55-58. In the Trail Smelter Arbitration (United States/Canada),

Decision of 11 March 1941, Reports of International Arbitral Awards, the tribunal introduced the classic formulation of the ‘no harm’ principle. In the judgements: Corfu Channel Case, Decision of 9 April 1949, ICJ Reports 1949 and Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, the ‘no harm’ principle became accepted as custom. Later, the principle is enshrined in legal instruments: Principle 21 of the Stockholm Declaration of the United Nations Conference on the Human Environment (1972); Principle 2 of the Rio Declaration on Environment and Development (1992).

29 Rao 2004, p. 224; Charme 1989, p. 80.

30 Dupuy & Viñuales 2015, p. 5; Trail Smelter Aribtration (United States/Canada), Decision of 11 March 1941,

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seems to support the concept of international liability. However, other case law is not conclusive on this point.31 In the Corfu Channel Case of 1949 the ICJ put great

importance on the negligence of the accused state, which seems to favour the applicability of the responsibility regime over the concept of liability.32 Consequently, the doctrine of international liability was not uniform enough to be an independent concept of customary law.

It was not until 1978 that the topic of international liability was first put on the agenda of the International Law Commission (hereinafter: ILC).33 It was in the course of the work on the Draft Articles on State Responsibility that the ILC identified the need for the concept of international liability as separate topic.34 The Commission stressed the need to examine, not only the responsibility for wrongful act, but also the questions concerning obligations to repair the harmful consequences resulting from lawful activities.35 In the ILC Yearbook of 1970, the Commission stated that: ‘Owing to the entirely different basis,

the different nature of the rules, its content and the forms it may assume, a simultaneous examination of the subject of international responsibility and that of international liability could only make both of them more difficult to grasp.’36 The ILC examined the topic since 1978 and finally adopted the ILC Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities in 2006 (hereinafter: ILC Draft Principles 2006).37 During the examination of the topic the ILC made an important change to the original concept. Where the earlier reports contained rules of liability imposed on the state, since the Draft Principles adopted in 2004 the regime targets the liability of the economic operator.38 The sole obligation of the state is to ensure payment of prompt and adequate compensation to victims of transboundary harm.39 This idea is based on the polluter pays principle, which requires an internalisation of the cost meaning that the financial burden of pollution is borne by those who caused it.40 The efforts of the ILC to establish a general system for the concept of liability should not be underestimated.

31 Charme 1989, p. 85, 86; Corfu Channel Case, Decision of 9 April 1949, ICJ Reports 1949. 32 Charme 1989, p. 88, 87.

33 Rao 2004, p. 224.

34 Rao 2004, p. 225; ILC Yearbook 1970, Vol. II, p. 178, par. 6. 35 Rao 2004, p. 225.

36 ILC Yearbook 1970, Vol. II, p. 178, par. 6. 37 Sucharitkul 1996, p. 829-831.

38 Dupuy & Viñuales 2015, p. 255, 256; Rao 2004, p. 225.

39 Principle 4(1) of the ILC Draft Principles on the Allocation of Loss in the Case of Transboundary Harm

Arising out of Hazardous Activities (2006); Rao 2004, p. 225.

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Although the instruments never became binding, the principles provide an effective guideline for other instruments in the field of liability for transboundary damage, which contributes to the uniformity of the law of liability.41

III. The various types of international liability and its difference to the concept of international responsibility

The distinction between the concept of international liability and the concept of

international responsibility often causes confusion. The concepts may seem to overlap in the sense that they both concern the obligation to provide reparation. However, there are some important differences.

The first main difference is the fact that under the general rule of state responsibility a breach of an international obligation is required, whereas international liability can be established regardless of unlawfulness.42 The general rule of state responsibility can be found in article 1 and 2 of the ILC Articles on State Responsibility. Article 1 states that: ‘A state is responsible for every internationally wrongful act it commits.’43 Whereas articles 2 adds that: ‘There is an internationally wrongful act of a state when conduct is

attributable to the state under international law and this conduct constitutes a breach of an international obligation of the state.’44 Under the concept of international liability the wrongfulness of an act is insignificant, it is sufficient to establish the existence of harmful consequences of the activity.45 Under the concept of liability strict liability can be

distinguished in its nature from absolute liability. Under the absolute nature of the liability regime no grounds of exemption are allowed, whereas under strict liability the economic operator could sometimes be exempted from liability, for example in a case of force

majeure.46

Another difference can be found in the fact that ‘damage’ is not an element of state responsibility anymore, whereas under the concept of liability ‘damage’ is the main criterion. The exclusion of damage under the concept of state responsibility removed the common criterion of the two concepts. The motive of the ILC for the so called

41 Idem., p. 261.

42 Sucharitkul 1996, p. 833.

43 Article 1 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001). 44 Article 2 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001). 45 Sucharitkul 1996, p. 834.

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‘objectivization’ of international responsibly lies in the fact that ‘international law must

be respected independently of the consequences of a violation, and any breach entails the responsibility of its author’.47

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Chapter IV

The liability regime in the Convention on International Liability

for Damage Caused by Space Objects (1972)

I. Introduction

This chapter will provide an analysis of the liability regime in the Liability Convention. This chapter will first introduce the Liability Convention by appointing the developments in space law leading to the adoption of the Convention. Next, this chapter will provide a comparison of the general concept of liability, as discussed in the previous chapter, to the liability regime contained in the Convention applicable on damage in outer space.

Subsequently, it will be analysed whether the liability regime in the Convention is applicable on space debris. Finally, the effectiveness of the liability regime on damage caused by space debris will be determined.

II. The background of the 1972 Liability Convention

With the beginning of the exploration of outer space in 1957 the United Nations began to examine the legal aspects. In 1958 the General Assembly established an Ad Hoc

Committee which one year later was transformed into the current committee: COPUOS.48 In 1962 the first formal proposal on liability for space vehicle accidents was brought before the Legal Sub-Committee of COPUOS.49 In 1963 the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space was established. This Declaration regulated the activities in outer space and contained two principles on liability. Since the Declaration did not provide binding rules the United Nations adopted the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies (hereinafter: Outer Space Treaty) in 1967. The Outer Space Treaty contains some general principles that govern activities in outer space and two articles on liability.50 However, the treaty did not provide a procedure for compensation and the articles were not precise enough for application.51 Realizing these shortcomings of the Outer Space Treaty, the

48 Heard 1986, p. 168.

49 Heard 1986, p. 168; Cheng 1997, p. 287.

50 Article VI, VII 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 (1967).

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COPUOS drafted the Convention on International Liability for Damage Caused by Space Objects (Liability Convention) which was adopted in 1972. The negations of the Liability Convention turned out to be difficult and lengthy.52 Mainly because of the different political interest of the influential nations active in outer space as the United States, the Soviet Union and the European Nations.53 The Convention is currently adopted by 90 parties including almost all spacefaring nations.54

III. The concept of international liability under the Liability Convention 1972 The Liability Convention regulates the individual liability of launching states for damage caused by space objects as well as their joint and several liability. Under the Liability Convention two regimes of liability are adopted which need to be distinguished depending on the location where the damage has occurred. In case of damage on the surface of the earth or aircraft in flight article II applies a regime of absolute liability. The focus of the thesis will be on the damage in outer space which is regulated by article III, stating that:

‘In the event of damage being caused elsewhere than on the surface of the earth to space

object of one launching State or to persons or property on board of such a

space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.’

It should be noticed that, first of all, the Liability Convention describes the state as the liable entity, this is because the Convention was adopted prior to the conceptual

modification of the ILC. Before the adoption of the ILC Draft Principles in 2004, a state could be considered a liable entity. Nowadays the liable entity is the economic operator. Secondly, the Convention seems to contain an inherent contradiction in terms of the concepts underlying the articles.55 On the one hand, article II of the Convention is based on the concept of liability because ‘damage’ is its sole requirement.56 On the other hand, article III of the Convention implements a fault-based standard of liability.57 The fact that

52 Lampertius 1992, p. 454. 53 Idem.

54 Pedrazzi 2008, p. 17.

55 Charme 1989, p. 84; Convention on International Liability for Damage Caused by Space Objects (1972). 56 Hennessey 1988, p. 320; Heard 1986, p. 185; Article VI of the Convention on International Liability for

Damage Caused by Space Objects (1972). Article II states that it establishes a regime of absolute liability. However, in literature it is sometimes referred to as strict liability because the Convention provides for the possibility of exoneration.

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‘fault’ is required, next to ‘damage’, in order to hold the launching state liable means that the article is not based on the general regime of liability, since ‘in the context of liability,

it is not necessary to establish fault (negligence or wilful misconduct).’58 So, the

Convention might be interpreted as applying a lex specialis regime of liability with article III.

IV. The applicability of the Liability Convention on space debris i. Introduction

First and foremost, it is necessary to examine whether article III of the Liability Convention is applicable on damage caused by space debris in order to subsequently determine whether this article is actually effective on this damage.

ii. The definition of ‘space object’

Article III of the Convention regulates the liability of a state for damage caused by its

space object to a space object of another state in outer space. The Convention does not

contain any reference to space debris. Thus, in order to analyse the applicability of the Convention in this context the question which needs to be answered is whether space debris can come under the definition of ‘space object’?59

The Liability Convention does not define the term ‘space object’. The Convention merely describes what is included under the term, namely: ‘component parts of a space object as

well as its launch vehicle and parts thereof’.60 At the time that the Convention was drafted, the lack of a definition of the term ‘space object’ was not considered to be a problem. The drafters were of the opinion that ‘space object’ had a clear meaning which could be reasonably understood. For the purpose of the Convention the drafters believed it was only necessary to name the parts and equipment of a space object which could cause damage.61

58 Dupuy & Viñuales 2015, p. 262; Charme 1989, p. 84.

59 In order to analyse whether space debris is covered under the term ‘space object’, it is necessary to interpret

the Liability Convention. Article 31 and 32 of the Vienna Convention on the Law of Treaties (1969) provide the specific methods on how to interpret a treaty. The general rule is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning of the text.

60 Article I, subparagraph (d) of the Convention on International Liability for Damage Caused by Space Objects

(1972).

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iii. The coverage of space debris under ‘space object’

Regarding this explanation of a ‘space object’ under the Convention, I will now provide an analysis whether the term can be considered to cover space debris.

As explained, space debris consists of broken-up or inactive man-made objects, such as spent satellites or old engine parts. According to the scholarly literature ‘component parts’ need to be interpreted as anything normally regarded as part of a spacecraft, from rockets till an astronaut’s glove.62 The question may arise whether non-functional component parts can constitute to be a ‘space object’ as well? Some space law writers state that a space object with malfunctions or which cannot be controlled anymore, like a broken part, would no longer be regarded as space object or a part thereof.63 According to space

experts Gorove and Cheng this statement can hardly be supported as it runs counter to the intention of the drafters of the Convention. Under the Convention broken fragments of a space object that fall on the surface of the earth are considered ‘space objects’. Nothing in the Convention suggests that inactive fragments in outer space should be treated any differently.64 Moreover, an example of a proposal during the travaux préparatoires may provide some guidance as to the meaning of ‘space object’ in this context.65 At the discussions leading to the adoption of the Convention Argentina, Belgium and France presented a joint proposal of the definition of ‘space object’. They suggested to include under the term ‘space object’ ‘a launch vehicle and parts thereof, as well as all

component parts on board, detached from or torn from the space object’.66 This proposal definitely includes non-functioning parts under the definition of ‘space object’.

Moreover, there has been some debate over whether the smaller pieces of debris, for example debris arising from collision with other debris, can be considered ‘space

objects’.67 More specifically, the question is whether ‘a component part of a space object’ can be equated with the term ‘part’ in order to include small pieces of debris. It should be noticed that the Convention in its explanation of ‘space object’ not only mentions

‘component parts’ it makes reference to ‘parts’ as well, in the context of launch vehicles.

62 John 2012, p. 695; Gorove 1993, p. 14. 63 John 2012, p. 695, 696; Lyall & Larsen 2009.

64 Cheng 1997, p. 14, 15; Gorove 1993, p. 15; article 31(1) of the Vienna Convention on the Law of Treaties

(1969).

65 Article 32 of the Vienna Convention on the Law of Treaties (1969).

66 UN PUOS/C.2/70/WP.1/CRR16 (reproduced as Annex I in A/AC. 105/85, p. 16)). 67 Bressack 2011, p. 756; Gorove 1993, p. 14.

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According to literature, a distinction between the meaning of these two quoted definitions was not intended by the drafters of the Convention. Consequently, the argument can be made that paragraph (d) of article I can be read as including ‘a part of a space object’, which allows small pieces of debris to be included. On top of that, according to

Lampertius, even under a strict definition small pieces of debris can still be considered a space object since it is matter originating from component parts of space objects and their launch vehicles.68

So, regarding the foregoing observations article III of the Convention will be applicable on damage caused by space debris, as ‘space debris’ is included under the term ‘space object’.

V. The effectiveness of the ‘fault liability’-regime in the Convention on space debris

i. Introduction

Since article III can be interpreted as being applicable on space debris, this paragraph will provide an analysis of the effectiveness of the article on damage caused by space debris. This paragraph will discuss some unclear terms of the ‘fault liability’-regime contained in article III and will analyse any difficulties by applying the regime. Although the unclear terms in the article can give problems in every context, in this paragraph I will focus on the problems in the context of space debris.

ii. The meaning of the term ‘fault’

In order to apply fault-based liability to space debris it is particular necessary that the term ‘fault’ is clear. The criterion of ‘fault’ is not defined anywhere in the Convention and according to literature its meaning is still unclear. The term could be interpreted as ‘objective fault’, but there are contending views suggesting that the criterion implies ‘subjective fault’.69 ‘Objective fault’ means the mere breach of a pre-existing legal duty, whereas ‘subjective fault’ is about the wilful misconduct of a state.70 The difference is that ‘subjective fault’ takes into account the mental state of the actor, the actual intent, while

68 Lampertius 1992, p. 453; article 31(1) of the Vienna Convention on the Law of Treaties (1969).

69 Lampertius 1992, p. 456; Bressack 2011, p. 768; article 31 of the Vienna Convention on the Law of Treaties

(1969).

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assessing the breach of the legal duty. For the effectiveness and applicability of the Convention the absence of a similar interpretation of ‘fault’ in international law is a significant problem.

iii. The necessity of a standard of care

In spite of the ambiguity concerning the term ‘fault’, it is clear from the foregoing sub-paragraph that proving ‘fault’ would at least involve the breach of a legal duty.71 Therefore, it is necessary to analyse which standard of care needs be observed in outer space because by such a standard one can judge the reasonableness and legality of the actions of a state. With regard to space debris, it is needed to assess whether states are allowed to leave their inactive and broken objects in orbit. Furthermore, in order to examine the fault of the other party a standard of rules on navigation might be helpful.

The Liability Convention lacks any sign as to what standard of care exist for the activity of states in outer space. Other space law treaties, such as the Outer Space Treaty, likewise contain a lack of indicating specific standards for states in outer space as to pollution and navigation.72 Since a standard of care has not been established in the treaties, such a standard might be provided by customary law.

A rule of customary law for the removal of existing space debris has not yet developed. Since the beginning of human presence in outer space it even has been state practice to abandon objects launched into outer space after they stopped serving a useful purpose.73 This practice is enhanced by the fact that polluting outer space is not considered to be an illegal act.74 Furthermore, regarding the costs of technological innovation and probable damage to other states’ space objects while removing debris, there is little incentive for states to promote or invest in the decrease of debris in orbit.75

As stated in chapter I, in order to mitigate space debris the IADC established

guidelines which later have been later transposed into guidelines of the COPUOS. These Guidelines ask for states to take several steps in order to minimize the further increase of

71 Bressack 2011, p. 768, 769; Lampertius 1992, p. 456, 457.

72 Lampertius 1992, p. 456; Bressack 2011, p. 769; Jasentuliyana (1998), p. 143. 73 Mey 2012, p. 253.

74 COPUOS 2013, p. 3; Mey 2012, p. 253, 254; Bressack 2011, p. 769; Lampertius 1992, p. 456, 457. 75 Schladebach 2013, p. 82-85; Salter 2016, p. 232, 233.

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space junk.76 For example, the Guidelines require that future spacecraft should be designed as to avoid break-ups and after the end of its mission a space vehicle should be removed from LEO. This can be done by a system which causes a reduction in altitude of the object making it sink into the atmosphere where it burns up.77 Nevertheless, the Guidelines are non-binding and are expressed to be undertaken on a voluntary basis. According to COPUOS the commitments contained in the Guidelines ‘has not yet

achieved the status of a legal obligation’.78

Possible rules concerning the navigation of space craft in outer space might be helpful for the establishment of fault on part of the claiming state. Since space debris consists of inactive and uncontrollable pieces and objects, the navigational rules cannot be applied to examine the fault of the state causing damage. It should be noticed that the Liability Convention does not specifically express the possibility to take into account the fault of the other party. However, article III may be interpreted as imposing liability on a launching state only to the extent of its fault.79 In the event of this being the proper interpretation, article III opens up the possibility of assessing the degree of fault of the other party. This is when navigational rules may come into play. However, there is currently no internationally accepted standard of care for traffic by which one can assess the fault of the other party.80 While some guidance may be found in the general principles of space law, of which some are laid down in the Outer Space Treaty, these principles are not precise enough to provide a rule on which decisions can be made.81 Moreover, outside the scope of space law some basic elements may be found in international

telecommunication law. However, the rules are not complete and are more concerned with the avoidance of radio-frequency interference, than rules on physical interference.82 That is why space law experts call for a binding comprehensive space traffic management regime, however, such a system is still missing.83

76 Mey 2012, p. 251; Salter 2016, p. 235.

77 Guideline 2, 5 and 6 of the COPUOS, Space Debris Mitigation Guidelines, Report of 15 June 2007, as

annexed to Doc. A/62/20.

78 COPUOS 2013, p. 2.

79 Cheng 1997, p. 328; article 31(1) of the Vienna Convention on the Law of Treaties (1969). 80 Dunk 2015, p. 587; Bressack 2011, p. 769; Foster 1992, p. 770.

81 IAA 2006, p. 38, 39, 54. 82 Idem., p. 44, 45, 54. 83 Idem., p. 40.

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Fault should be measured according to appropriate behaviour laid down in legal rules. Since a standard of care for actively removing debris and for navigating space objects is absent or too vague, it is not possible for the parties to prove fault which constitutes a serious shortcoming of the Convention.

iv. The scope of the term ‘damage’

In order to successfully claim compensation under article III of the Convention, a state must prove that it has suffered damage to its space object or persons or property on board of such a space object. Furthermore, the Convention requires a causal link between the damage and the activity from which the damage resulted.84 The Convention defines ‘damage’ as:

‘the 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 organizations.’85

It is clear from this article that direct damage, which means the initial hit of space debris to a space object, is covered by the Convention.86 Questionable is whether damage to other objects of the claimant state due to debris generated by the prior collision, is incorporated in the term. The coverage of this so called ‘consequential damage’ by the Convention is still unclear. Christol states that damages resulting from a direct hit as well as indirect damage resulting from the malfunctioning of a space object should be covered by the Convention.87 However, with some scholars opposing this view there is still no consensus on this issue.88

The uncertainty about which damage can be claimed for compensation constitutes a problem for the functioning of the liability system.

84 Gorove 1978, p. 141.

85 Article I, subparagraph (a) of the Convention on International Liability for Damage Caused by Space Objects

(1972).

86 Article 31(1) of the Vienna Convention on the Law of Treaties (1969). 87 Christol 1980, p. 362; Kayser 2004, p. 49

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v. Identifying the launching state causing damage

In order for a state to claim compensation for damage to its space object it is necessary to make sure which launching state caused the damage. Space debris consists of artificial objects which means that every piece of debris present in outer space in the end can be traced back to a creating entity. This can be a state or a private entity, however the

Convention only recognizes the ‘launching state’ as the subject which can be held liable.89 The definition of a ‘launching state’ can be found in article I, subparagraph (c). This subparagraph specifies a ‘launching state’ as ‘a state which launches or procures the

launching of a space object and a state from whose territory or facility a space object is launched’.90 By classifying the state from which territory a space object is launched as a ‘launching state’ the definition covers the launching of objects by private entities.91 However, private entities launching objects outside the territory of any state, for example the high seas, would not be covered by it. This problem is solved by article VI of the Outer Space Treaty which attributes private activities in outer space to the national state, which combined with the Liability Convention thus qualifies as ‘launching state’.92 Consequently, it is necessary to assess to which launching state the piece of debris creating the damage originates.

Proving who is liable for the damage caused by space debris is the most practical problem of the Convention. First it is necessary to examine which specific piece of debris caused the damage in order to then examine its national origin. In 1976 the United Nations established the Convention on Registration of Objects Launched into Outer Space (hereinafter: Registration Convention) which requires the registration of a space object launched into earth orbit or beyond.93 The Convention furthermore requires the name of the launching state which is helpful for assessing the national origin of the space object.94

89 Berkely 1997, p. 441; Bressack, p. 765, 778. The launching state is the only recognized liable entity under the

Convention. However, this does not necessarily mean that the launching state has actual control over the space object. Often the private entity has control over the object, but it is the launching state who is liable for the actions of the entity (breach of a standard of conduct). That is why many states have adopted domestic law which allows to for the recovery of the sum from the private entity. For example: the United States adopted an act which requires the private company to take insurance and pay the value of the claim up to the insured amount, the remainder will be paid by the United States.

90 Article I, subparagraph (c), (i) and (ii) of the Convention on International Liability for Damage Caused by

Space Objects (1972).

91 Cheng 1997, p. 330; article 31(1) of the Vienna Convention on the Law of Treaties (1969). 92 Pedrazzi 2008, p. 7; article 31 of the Vienna Convention on the Law of Treaties (1969).

93 Article II, subparagraph 1 of the Convention on Registration of Objects Launched into Outer Space (1976). 94 Article IV, subparagraph 1, (d) of the Convention on Registration of Objects Launched into Outer Space

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However, it turns out that states not always have a very strict practice of registration now that the Convention provides for voluntary registration.95 Moreover, the Registration Convention is ineffective for identifying the space object causing the collision.96 While the Registration Convention requires information concerning the general movement of the space object this will often not be enough for identifying which space object has caused damage.97 That is why the Registration Convention provides for the opportunity to ask other states, which possess space monitoring and tracking facilities, to help identifying objects.98 Although actively tracking space objects seems a better alternative there are still shortcomings to this approach. First, there exists no official internationally body

responsible for tracking pieces of debris in orbit. The domestic systems cataloguing and tracking space objects are not interconnected so data may not always match.99

Furthermore, debris moves at high velocity and the smallest pieces of debris are

impossible to trace even with the latest technology.100 If the piece of debris causing the damage cannot be traced, it is impossible to examine the national origin.

The problem set out in this sub-paragraph constitutes a serious obstacle for the ability of states to claim compensation under the Convention of another launching state.

95 COPUOS 2016, p. 3; Kayser 2004, p. 46; Lampertius 1992, p. 460. 96 Kayser 2004, p. 46; Lampertius 1992, p. 460.

97 Article IV, subparagraph 1, (a) of the Convention on Registration of Objects Launched into Outer Space

(1976).

98 Article VI of the Convention on Registration of Objects Launched into Outer Space (1976). 99 Bressack 2011, p. 748, 749.

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Chapter V

A proposal for an effective regime for the compensation of

damage caused by space debris

I. Introduction

The foregoing chapter shows the inability of the fault-based system to provide an effective regime for claims of states regarding damage caused by space debris. The ineffectiveness is based on practical as well as legal problems. This chapter will exclusively focus on the legal problems, therefore excluding the issue of the inability of identifying the launching state as this is mainly created by a shortcoming of current technology.

This chapter will analyse which system is able to be effective on space debris and consequently can replace the ‘fault-based’ liability regime of article III. As showed in chapter III, current international law recognizes two concepts which can be applied to provide reparation: (non-fault) international liability and international responsibility. This chapter will analyse which concept is capable of providing an effective regime for article III of the Convention as to damage caused by space debris.

II. The proposal of international responsibility as an effective regime

The regime of international responsibility and the fault-based regime resemble each other by both requiring unlawfulness. Unlawfulness is described under the concept of

international responsibility as an ‘internationally wrongful act’, while article III requires ‘fault’ which is interpreted as the breach of a legal duty. As stated in the foregoing chapter precisely the criterion of unlawfulness causes the most difficulty by applying the

Convention on damage to space debris. Due to the absence of any legal standard of care, which gives guidance as to the appropriate behaviour required, it is impossible to prove the breach of a legal duty. The inability in the present circumstances to prove a breach constitutes the determining factor for international responsibility to be ineffective for damage caused by space debris.

III. The proposal of international liability as an effective regime

The concept of international liability differs from the concept of responsibility in the sense that it takes damage as its main criterion instead of unlawfulness. In chapter IV it is

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concluded that the fault-based liability regime covered by article III might be considered a

lex specialis liability regime as it does not match with the general concept of international

liability. That is why the general concept of liability (non-fault) can be analysed as an alternative which might provide a more effective regime for article III. In order to analyse whether this (non-fault) liability regime is effective, this section will first examine the reasons behind the introduction of the concept of liability in international law and next the motivation of the drafters for applying liability on article II of the Convention.

Subsequently, this paragraph will explain the effectiveness of the regime on space debris and will close with suggesting a proposal for a properly working system.

i. The legal and policy considerations underlying the concept of non-fault (strict or absolute) liability

The rationale behind the emergence of the (non-fault) liability concept in international law is based on the fact that the regime is applicable without the need to consider the breach of a legal duty. Another argument can be found in the fact that it seemed fair that a state which operates and benefits from a certain activity, especially ultra-hazardous activities, must accept the disadvantages such as the causation of transnational harm.101

Furthermore, since the prove of damage alone will suffice to establish liability, states will be stimulated to adjust their conduct in order to mitigate the likelihood of harm.102

The rationale for article II of the Convention to apply non-fault liability, is based on the fact that the victim or claimant state would not have the ability to gather enough

information to prove that the injury is caused by the breach of a legal duty.103 Since the negotiating states already considered the difficulty of proving fault, the question may arise why it has been decided to incorporate a fault-based liability in article III? Space experts suggest a couple of reasons for the distinction between fault-based and non-fault based liability by the Convention. First of all, during the drafting of the Convention the

negotiating states were probably more concerned with damage caused by debris falling to earth.104 Back in 1972 the ‘big sky’ theory prevailed, which assumed that the chance of two objects colliding in outer space was nihil regarding the large volume of orbit

101 Charme 1989, p. 76; McDermott 1992, p. 154. 102 Charme 1989, p. 76.

103 Heard 1986, p. 185. 104 DeBusschere 1994, p. 100.

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compared to the number of objects in it.105 So, at the time of the completion of the

Convention damage caused by space debris seemed less likely to occur making the regime of fault liability more suitable. Secondly, the rationale for a fault-based regime under article III is based on the fact that states which launch space objects into outer space impose an identical risk on each other. Whereas non-fault liability is appropriate where the activity creates a non-reciprocal risk.106 This is the case in article II, since a space object of a launching state may cause damage to an area within the territorial boundaries of a state non-active in outer space. Furthermore, back then the drafters considered states who were engaged in activities in outer space in a suitable position to assess fault.107

ii. Analysing the effectiveness of a regime based on non-fault strict liability

With regard to these policy considerations, I would like to explain the effectiveness of the non-fault liability regime to damage caused by space debris. In this section I will first set out the reasons for applying a non-fault liability system and assess whether this liability regime is able to be applicable on space debris. Thereafter, I will give reasons for

applying a strict non-fault based liability regime instead of an absolute based system and I will subsequently introduce and explain my proposal.

i. An effective regime based on non-fault liability

A non-fault based liability regime (strict or absolute liability) should be given preference over a fault-based regime. By applying a strict or absolute liability regime, the claimant state is relieved of the burden of proving fault since only damage is required. Furthermore, a non-fault based system seems fair in the sense that states which enter into a risky

activity, such as space flight, should bear the costs of the damage resulting from the activity.108 Moreover, a state which is liable on the basis of damage caused by its space debris will have more incentive to actually change the existing practice causing the damage, namely the abandoning of inactive objects in outer space.109 Finally, considering

105 Firestone 1985, p. 761; Bressack 2011, p. 758. 106 Hennessey 1988, p. 328.

107 Hennessey 1988, p. 328; Lampertius 1992, p. 461. 108 Heard 1986, p. 184; Lampertius 1992, p. 462.

109Charme 1989, p. 76. Being held liable will incentive states to comply with the mitigation guidelines and to

invest in (and internationally cooperate on) research for effective debris-removal techniques, which will change the practice of abandoning objects.

In the case of ‘fault’ on the part of the private entity the state can adopt domestic law which allows the state to refund the sum from the private entity. However, this structure does not mean that the state will not be

encouraged any longer to prevent its liability, still actions of states are required. First of all, the state is the liable entity and according to the Convention states are obliged to present their claim for compensation through

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new insights and an outer space which has become more crowded over time, the ‘big sky’-theory cannot be uphold anymore. The chances of damage between space objects are greatly increased and an effective regime responding to this damage is needed.

A guideline on the general regime of liability is defined in the ILC Draft Principles 2006.110 Under this regime, liability is imposed on the operator due to transboundary damage resulting from a hazardous activity.111 Because it is necessary to assess whether the general non-fault liability regime can provide an effective system within the

Convention, it might be helpful to examine whether the criteria of the ILC Draft Principles are able to be applicable on damage caused by space debris.

The ILC Draft Principles 2006 will be analysed in the context of the Liability

Convention, meaning that the Draft Principles will be applied only in the situation where it is not regulated by the Convention.112 First of all, it should be noticed that under the Liability Convention the ‘operator’ is defined as the ‘launching state’. Secondly, the concept of international liability requires ‘transboundary damage’. ‘Damage’ is limited defined by article I of the Convention. However, it is clear that at least damage to a space object direct resulting from the initial hit of space debris is covered by the Convention. For an exact definition of ‘damage’, the ILC Draft Principles may provide guidance. According to these Principles, damage should be ‘significant’ which means that the damage is more than mere ‘detectable’ or ‘appreciable’.113 Space debris moves at high velocity through orbit making it highly probable of causing ‘significant damage’. If space debris causes damage to a space object of another launching state this will be considered ‘transboundary damage’. Furthermore, the requirement of damage ‘resulting from a hazardous activity’. A ‘hazardous activity’ means an activity which involves a risk of causing significant harm.114 According to literature, space flight can be considered to be a ‘hazardous activity’ as it can generate debris which can cause significant damage to other

diplomatic channels (article IX of the Liability Convention). States will need to consult each other. Furthermore, domestic law often requires the states to pay the remainder of the costs above the insured amount. So, there is still incentive for states to change the existing practice (of the operator) in order to prevent liability.

110Dupuy & Viñuales 2015, p. 260, 261.

111 Rao 2004, p. 225; Principle 1 of the ILC Draft Principles on the Allocation of Loss in the Case of

Transboundary Harm Arising out of Hazardous Activities (2006).

112 Dupuy & Viñuales 2015, p. 260, 261. 113 Rao 2004, p. 225.

114 Principle 2(c) of the ILC Draft Principles on the Allocation of Loss in the Case of Transboundary Harm

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space objects.115 Proving the casual link between space debris and the damage it has made will be possible because of current technology which can track pieces of debris from 5 cm. Unfortunately, even with the latest equipment smaller pieces of debris are currently unable to track.

In light of the foregoing considerations the current system of international liability will provide an applicable and effective system for damage caused by space debris and will be more preferable than the system of fault liability currently incorporated in article III.

ii. An effective regime based on the strict liability regime

Secondly, a regime of strict liability should be given preference over a regime of absolute liability. The regime of absolute liability provides a system in which no exoneration is possible. While this will be beneficial for claiming states it might not always be

reasonable for the state causing damage. As stated in this chapter, one of the rationales for applying a fault-based regime in outer space is the fact that the risk imposed by launching states is reciprocal. In outer space each launching state poses a risk on the other launching states by engaging in space activities. That is why fault, in my opinion, should still be taken into consideration in a proposal for an effective system. This can be done by making ‘fault’ part of the exoneration-clause as will be explained in the next paragraph.

iii. A proposal for an effective regime based on non-fault strict liability

In light of the foregoing considerations my proposal contains a strict liability regime. In my proposed system a launching state can be held liable if its space debris caused damage to a space object of another launching state (hereinafter: claiming state), however there is a possibility of exoneration.116 The launching state can be exonerated from a part of its liability by proving the objective fault of the claiming state, for example the breach of a rule concerning the navigation of space objects. If the launching state can prove that the

115 Heard 1986, p. 184; Lampertius 1992, p. 462.

116 John, p. 695, Berkely, p. 427. Intentionally I did not substitute the liable actor of article III (the launching

state) to the current liable actor: the ‘economic operator’. First of all, the Liability Convention is interconnected with other space law treaties which all contain a state-based regime. The Liability Convention specifies and clarifies the liability regime contained in the Outer Space Treaty. This means that changing the actor of article III of the Liability Convention will mean that the liability provisions of the Outer Space Treaty should be changed to the economic operator as well, in order to let the treaties still function together. Analysing the effect of incorporating the economic operator in other space law treaties is outside the scope and purpose of my thesis. Furthermore, as stated in footnote 89, while the launching state is the recognized liable subject, through domestic law it can still recover the sum from the private entity, if that entity had control over the space object causing the damage. In that way an internalisation of the cost to the actual polluter is still present, which is a fair system for the launching state.

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claiming state was at fault, then it should be assessed to what extent the claiming state was at fault compared to the fault of the launching state (breach of a rule concerning the pollution of outer space). Consequently, the liability will be divided to the extent of the fault of each party.

This proposal will be preferable as to the following reasons. First of all, this proposal makes it possible to assess the liability of each launching state to the extent of their fault. This will provide a fair system which takes into account the position of both parties. Moreover, as has become clear, fault will be difficult to prove since a standard of care for activities in outer space is still absent. At present, it is practically impossible for the

launching state to prove the fault of the claiming state meaning that, for now, the proposed system will almost equate an absolute liability regime, as states are unable to exonerate themselves. While this may seem as a lack in the proposal this is actually intended and favourable. States will be stimulated to define a legal standard of care in order to be able to limit their liability. With this proposal states will be encouraged to adopt binding rules concerning the removal and mitigation of space debris and on the other part, regarding the navigation of space objects. On the contrary, the current article III does not encourage states to establish rules for the activities in outer space, as states are nearly being held liable for their damage.

The adoption of clear and binding rules will not only help in making the liability regime more effective but in addition it will help in decreasing the population of space debris in outer space. As for mitigation, the guidelines require future space objects to be

automatically removed from orbit after they become inactive. Making the guidelines obligatory will enhance the global compliance which prevents the population of debris from increasing in the future. Furthermore, an international binding agreement which requires the removal of space debris can draw attention to the need for technological innovation.117 The agreement has to provide rules to share the burden of the costs for scientific research among the spacefaring nations. International cooperation is necessary as states are unwilling to individually invest in higher environmental standards which

117 Imburgia 2011, p. 627. Only with effective space debris removal techniques and a binding agreement, the

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benefits all spacefaring nations.118 Consequently, my proposal will incentive states to cooperate and work on the problem as ‘only international cooperation can solve the

problem of orbital debris’. 119

118 Schladebach 2013, p. 84, 85; Hacket 1994, p. 207. The environmental changes of the state will rise the costs

of space activities and eventually may cause a competitive (scientific or commercial) disadvantage to other spacefaring nations.

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Chapter VI

Conclusion

In this thesis it is analysed whether the 1972 Liability Convention provides an effective liability regime for damage to the active space object of a state caused by space debris in outer space. Since the start of the space age in 1957 humans are polluting the outer space with artificial debris at a high rate. Due to the proliferation of space debris an increasing risk of damage to future space missions and space objects currently in orbit exists. With numerous incidents of space debris colliding with active objects and with an absence of effective regulation on space debris, an increasing need is present to consider whether there exists an effective liability regime for this damage. Article III of the 1972 Liability Convention might be an effective liability regime as it provides for the liability of a launching state in the case of damage caused by its space object to the space object of another launching state in outer space. In order to analyse the effectiveness of this regime, this thesis assessed whether the Liability Convention is actually applicable on damage caused by space debris. It can be concluded that article III is applicable on ‘space debris’ as it is included under the term ‘space object’. Subsequently, it has been examined whether article III is effective on damage caused by space debris. Article III applies a fault-based regime meaning that a launching state causing damage is held liable provided that it has breached a legal norm. This thesis established that this ‘fault-based’ liability regime is ineffective on space debris owing to practical and legal problems. The main practical problem is based on the fact that current technology is still unable to trace pieces of debris smaller than 5 centimetres. This constitutes a serious obstacle for the ability of states to claim compensation under the Convention, as it is unclear which launching state has caused the damage. Moreover, the main legal problem is the fact that article III

requires ‘fault’. Fault should be measured according to appropriate behaviour laid down in legal rules. However, a standard of care for activities in outer space is absent or too vague, making it impossible for the parties to prove fault.

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Since we established that the current regime of article III is ineffective to the problem of space debris, this thesis analysed which system could be replacing the fault-regime of article III. Current international law recognizes two concepts which can be applied to provide reparation: (non-fault) international liability and international responsibility. Since ‘fault’ is the principal failure of the current regime, proposing international responsibility as an alternative is not favourable because responsibility responds to unlawfulness. That is why I propose a regime based on strict (non-fault) liability, which exclusively responds to damage. However, my proposal includes a clause in which the launching state can exonerate itself from strict liability by proving fault on the part of the claiming state. If the launching state can prove that the claiming state was at fault, then it should be assessed to what extent the claiming state was at fault compared to the fault of the launching state. Consequently, the fault of each party will be examined. It should be noticed that fault is still incorporated in this proposal. Fault can be established by a standard of care, which is currently absent for activities in outer space. So, by

incorporating fault in the exoneration clause, states are unable to exonerate themselves from liability. This is actually favourable as it will stimulate states to establish a standard of care in outer space for pollution and navigation, which eventually will not only help in making the liability regime more effective but in addition will decrease the population of space debris in outer space.

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