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Freeland, Steven --- "There's a Satellite in My Backyard! - Mir and the Convention on International Liability for Damage Caused by Space Objects" [2001] UNSWLawJl 31; (2001) 24(2) UNSW Law Journal 462

[*] B Com (with merit), LLB (UNSW), LLM (UNSW/Utrecht); Part-time lecturer and PhD candidate, Faculty of Law, University of New South Wales, Australia. Member of the International Institute of Space Law and the International Law Association. The author teaches various international law courses, including Space Law, at the University of New South Wales. The views and opinions in this article are those of the author only.

[1] Mir was launched on 20 February 1986. At that time it was intended to operate for only five years but, despite a number of mishaps and accidents along the way, it remained in orbit for 15 years.

[2] The participants in the ISS project are the United States (‘US’), Russia, Japan, Canada and 11 Member States of the European Space Agency (‘ESA’) (Belgium, Denmark, France, Germany, Italy, Netherlands, Norway, Spain, Sweden, Switzerland and the United Kingdom). These countries signed the Inter-Governmental Agreement the Agreement Among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America Concerning Cooperation on the Civil International Space Station, opened for signature 20 January 1998 (‘1998 IGA’) establishing the ISS project on 29 January 1998. Brazil subsequently became a participating nation in the project. There are currently ongoing discussions taking place between the ESA and the Chinese Space Agency China National Space Administration (‘CNSA’) in which ‘an intention to collaborate’ has been reached with a view towards admitting China as a participant in the ISS project in the near future: W Long, ‘ESA To Help China Join ISS’, Space Daily, 29 July 2001, .

The 1998 IGA replaced an earlier Inter-Governmental Agreement signed in 1988 the Agreement Among the Government of the United States of America, Governments of Member States of the European Space Agency, the Government of Japan, and the Government of Canada on Cooperation in the Detailed Design, Development, Operation, and Utilization of the Permanently Manned Civil Space Station, opened for signature 29 September 1988 (‘1988 IGA’) between the US, Canada, Japan and nine ESA countries.

[3] Richard D Lyons, ‘Skylab Debris Hits Australian Desert; No Harm Reported’, The New York Times (New York, US), 12 July 1979, 1.

[4] The US State Department has requested the return of the debris so that Defence Department scientists can determine why the debris did not burn up during re-entry into the Earth’s atmosphere: ‘US demands back space debris that landed on S. African farm’, Space Daily, 3 June 2001, .

[5] Richard Macey, ‘Duck when the space junk lands in your backyard’, The Sydney Morning Herald (Sydney), 28 December 2000, 11.

[6] Australia has enacted the Space Activities Act 1998 (Cth), which establishes a legal framework for the development of launch activities from this country. The legislation allows private entities to establish and operate launch facilities from Australian territory, subject to obtaining an appropriate government licence. The Australian Government has embarked on a strategy designed to enable the country to enter the space launch market, which it anticipates will contribute up to AUD$2.5 billion to its balance of payments for the period to 2010: ‘Australia Signs Space Launch Agreement With Russia’, Space Daily, 23 May 2001, . In May 2001, it signed an agreement with Russia – Agreement Between the Government of Australia and the Government of the Russian Federation on Cooperation in the Field of the Exploration and Use of Outer Space for Peaceful Purposes, 23 May 2001, Australia-Russian Federation – which paves the way for the establishment of jointly sponsored space operations between the two countries. In June 2001, the Australian Government announced that it would contribute up to AUD$100 million towards a planned AUD$800 million space launch facility to be built on Christmas Island, an Australian territory located off the Indonesian island of Java.

[7] Opened for signature 29 March 1972, 961 UNTS 187 (entered into force 1 September 1972).

[8] It should be noted that under the various treaties which regulate space law, the definition of a ‘space object’ is itself circular and unsatisfactory. Article I(d) of the Liability Convention, eg, defines a space object as ‘includ[ing] component parts of a space object as well as its launch vehicle and parts thereof’.

[9] Liability Convention art XIX(2).

[10] Liability Convention art XIX(2).

[11] Joseph A Bosco, ‘International Space Law – A Brief Overview’ (1995) 9(4) The Air and Space Lawyer 3, 3. Bosco makes reference to formal legal publications on space law dating back to 1910.

[12] The significance of the Sputnik launch has been described in the following terms: ‘it is no exaggeration to say that what the Wright brothers did for air law, Sputnik 1 did for space law’. I H Ph Diederiks-Verschoor, An Introduction to Space Law (2nd ed, 1999) 2.

[13] UN GA Res 1348, 8 UN GAOR (13th Session) Supp No 18, UN Doc A/4090 (1958) provided that outer space shall be exclusively ‘used for peaceful purposes only’. Diederiks-Verschoor, above n 12, 140.

[14] Bin Cheng, ‘The Commercial Development of Space: The Need for New Treaties’ (1991) 19 Journal of Space Law 17, 19.

[15] UN GA Res 1472, 14 UN GAOR, Supp 16, UN Doc A/4354 (1959).

[16] Opened for signature 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967).

[17] See, eg, UN GA Res 1721, 16 UN GAOR, Supp 17, 6, UN Doc A/5100 (1962). See also David J Harris, Cases and Materials on International Law (5th ed, 1998) 248.

[18] Outer Space Treaty art II.

[19] Outer Space Treaty art III.

[20] Outer Space Treaty Preamble para 2 and art XI.

[21] Sylvia M Williams, ‘International Law and the Military Uses of Outer Space’ (1989) 9 International Relations 407, 416.

[22] For example, art 2 of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature 18 December 1979, 1363 UNTS 3, 18 ILM 1434 (entered into force 11 July 1984) (‘Moon Agreement’) provides that all activities on the Moon ‘shall be carried out in accordance with international law’ and art 3(1) provides that the Moon shall be used ‘exclusively for peaceful purposes’. It should be noted, however, that the Moon Agreement has only been ratified by nine states thus far (Australia, Austria, Chile, Mexico, Morocco, Netherlands, Pakistan, Philippines and Uruguay), and signed by a further five states (France, Guatemala, India, Peru and Romania). It has not been accepted by the major space-faring states. This significantly reduces the influence of the Moon Agreement on the future practice of those states.

[23] Outer Space Treaty art VI.

[24] Outer Space Treaty art VII.

[25] Dimitri Maniatis, ‘The Law Governing Liability for Damage Caused by Space Objects’ (1997) 22 Annals of Air and Space Law 369, 370.

[26] Opened for signature 22 April 1968, 672 UNTS 119 (entered into force 3 December 1968).

[27] Outer Space Treaty art I.

[28] Due to the current number of space objects and the increasing level of space debris, it is now widely thought that the greatest risk of damage, at least from a commercial viewpoint, arises from the possibility of collisions between space objects or between space objects and space debris.

[29] In 1962, a piece of metal weighing almost 20 pounds, almost certainly from the Soviet Sputnik 4 rocket, fell to Earth, landing in a street in a Wisconsin town. In June 1969, five Japanese sailors were allegedly injured off the coast of Siberia by fragments from a device launched into outer space: Bin Cheng, Studies in International Space Law (1997) 287.

[30] Henri A Wassenbergh, ‘International Space Law: A Turn of the Tide’ (1997) 22 Air & Space Law 334, 339.

[31] Carl Q Christol, The Modern International Law of Outer Space (1984) 59.

[32] Maniatis, above n 25, 377.

[33] UNCOPUOS is the main United Nations organ involved in the development of formal rules relating to the use and exploration of outer space. It was established as an ad hoc committee in 1958 (UN GA Res 1348, 13 UN GAOR (13th Session) Supp 18, UN Doc A/4090 (1958)) and was formally inaugurated by the United Nations General Assembly on 12 December 1959: Diederiks-Verschoor, above n 12, 75. Much of the work undertaken by UNCOPUOS is conducted by its two formal sub-committees – the Scientific and Technical Sub-committee and the Legal Sub-committee. Since its establishment, its membership has grown as more states have become interested in the use and exploration of space and the regulation of those activities. It currently has 61 members: Nandasiri Jasentuliyana, International Space Law and the United Nations (1999) 26.

[34] The vote was 94 in favour, none against, with four abstentions (Canada, Iran, Japan and Sweden). These four abstaining states supported the goals of the Liability Convention, but wanted more favourable provisions for claimants included in the final text: Christol, above n 31, 88.

[35] In 1972, the US and the USSR concluded a series of agreements following the Strategic Arms Limitation Talks (‘SALT 1’). The most important of these agreements was the Limitation of Anti-Ballistic Missile Systems Treaty, 26 May 1972, US-USSR, 23 UST 3435 (entered into force 3 October 1972) (‘ABM Treaty’). The US is currently questioning the relevance of the ABM Treaty following its decision to proceed with its proposed Missile Defence Shield (‘MDS’) system, the development and deployment of which is in breach of arts I and V of the Treaty.

[36] Aldo A Cocca, ‘The Advances in International Law Through the Law of Outer Space’ (1981) 9 Journal of Space Law 13, 19.

[37] Carl Q Christol, Space Law – Past, Present and Future (1991) 209.

[38] As an example of the views of developing states at the time, the representative of the Philippines complained in the United Nations General Assembly that ‘the lack of agreements on the draft convention was discouraging to non-space powers which had signed the [Rescue] Agreement because [they] had been given the impression that the agreement on liability would be forthcoming as a complement to that Agreement’: United Nations, United Nations Yearbook (1969), quoted in Bruce A Hurwitz, State Liability for Outer Space Activities in Accordance with the 1972 Convention on International Liability for Damage caused by Space Objects (1992) 10.

[39] Hurwitz, above n 38, 10.

[40] For example, the Liability Convention does not extend to damages which arise out of the establishment and use of space stations. Diederiks-Verschoor, above n 12, 94. See also below n 50. Article 17 of 1998 IGA relating to the ISS project expressly states that the participants in the project remain liable under the Liability Convention, subject to the cross-waivers of liability given pursuant to art 16.

[41] Cheng, above n 29, 303.

[42] Christol, above n 37, 211.

[43] Liability Convention art VIII.

[44] Liability Convention art XI(1).

[45] Gijsbertha C M Reijnen, The United Nations Space Treaties Analysed (1992).

[46] Liability Convention Preamble para 4.

[47] The incorporation of this mode of decision making within UNCOPUOS was itself the result of compromise, based in part on the prevailing tensions associated with the Cold War relationship between the two major space-faring states at the time: Jasentuliyana, above n 33, 27-8.

[48] Christol, above n 31, 112.

[49] Liability Convention Preamble para 4 (emphasis added).

[50] See above n 40. Another example of an issue not addressed by the Liability Convention is the risk of damage in outer space caused by space refuse: H A Baker, ‘Liability for Damage Caused in Outer Space by Space Refuse’ (1988) 13 Annals of Air and Space Law 183, 203.

[51] Cheng, above n 29, 300.

[52] Christol, above n 37, 232.

[53] Susanne U Reif and Bernhard Schmidt-Tedd, Legal Framework for Expanding Privatisation in Space: Views and Interim Results from the ‘Project 2001’ – Working Group on Privatisation (Unpublished, 1999) (copy on file with author).

[54] Article I(a) of the Liability Convention defines damage as meaning: ‘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’.

[55] Liability Convention art I(c)(i), (ii). It should be noted that this definition does not specifically include the state of manufacture of the space object. Some commentators now believe that it is appropriate to expand the definition of a launching state to include the manufacturing state, particularly as private industry from many countries have become involved in this aspect of space activities. See, eg, Jasentuliyana, above n 33, 36.

[56] Liability Convention art II.

[57] Liability Convention art III.

[58] Liability Convention art VI(1), (2).

[59] Liability Convention art VII.

[60] Paul G Dembling and Richard C Walters, ‘The 1986 Challenger Disaster: Legal Ramifications’ (1991) 19 Journal of Space Law 1, 4.

[61] Stephen Gorove, ‘The Shuttle Disaster and Issues of Liability’ (1996) 14 Journal of Space Law 58, 58.

[62] Liability Convention art IX.

[63] Liability Convention arts XV, XVIII.

[64] Liability Convention art XII.

[65] At general international law, breach of an international obligation gives rise to a secondary obligation to make reparation based on the restituo principle: Martin Dixon, Textbook on International Law (4th ed, 2000) 240. See also the decision of the Permanent Court of Justice in Chorzów Factory Case (Germany v Poland) (Indemnity) (Merits) [1928] PCIJ (ser A), No 17.

[66] Christol, above n 37, 212.

[67] Liability Convention art XIX(2).

[68] Karl-Heinz Böckstiegel, ‘Settlement of Disputes Regarding Space Activities’ (1993) 21 Journal of Space Law 1, 3.

[69] F A Silane, ‘Liability for Commercial Space Ventures’ (1994) 8(4) The Air and Space Lawyer 3, 7.

[70] Bryan Schwartz and Mark L Berlin, ‘After the Fall: An Analysis of Canadian Legal Claims for Damage Caused by Cosmos 954’ (1982) 27 McGill Law Journal 676, 677.

[71] Böckstiegel, above n 68, 3 (emphasis added).

[72] Baker, above n 50, 211.

[73] See, eg, Diederiks-Verschoor, above n 12; Jasentuliyana, above n 33; Böckstiegel, above n 68; Stephen Gorove, ‘Liability in Space Law: An Overview’ (1983) 8 Annals of Air and Space Law 373; Andre DeBusschere, ‘Liability for Damage Caused by Space Objects’ (1994) 3 Journal of International Law and Practice 97; Carl Q Christol, ‘Space Law: Justice for the New Frontier’ (1984) 68 Sky and Telescope 406; and Nandasiri Jasentuliyana, ‘Space Debris and International Law’ (1998) 26(2) Journal of Space Law 139.

[74] Frans G Von der Dunk, Public Space Law and Private Enterprise – The Fitness of International Space Law Instruments for Private Space Activities (Unpublished, 1988) 18, based upon chs II and III of Frans G Von Dunk, Private Enterprise and Public Interest in the European ‘Spacescape’ (1988) (copy on file with author).

However, the wording of the treaty does appear to allow for the possibility that an international organisation might, in appropriate circumstances, also be able to submit a claim for damage ‘sustained within the scope of employment of its personnel or even on behalf of its juridical entity’ based on contractual, agency or organisational relationships rather than on issues of nationality. Stephen Gorove, Developments in Space Law – Issues and Policies (1991) 233.

This article, however, only deals with claims made by States in accordance with the terms of art VIII of the Liability Convention.

[75] Paul B Larsen, ‘Expanding Global Navigation Services’ in Proceedings of the Workshop on Space Law in the Twenty-First Century (Paper presented at the UNISPACE III Technical Forum, Vienna, 20-23 July 1999) 165.

[76] Liability Convention art XI (2).

[77] Reijnen, above n 45, 193-4.

[78] Hurwitz, above n 38, 49.

[79] Cheng, above n 29, 307.

[80] Hurwitz, above n 38, 49.

[81] Ibid.

[82] Maniatis, above n 25, 385.

[83] W F Foster ‘The Convention on International Liability for Damage Caused by Space Objects’ (1972) 10 The Canadian Yearbook of International Law 137, 169.

[84] Mavromattis Palestine Concessions Case (Greece v United Kingdom) (Jurisdiction) [1924] PCIJ (ser A), No 2, 12.

[84] Ibid.

[85] Dixon, above n 65, 244.

[86] Panevezys-Saldutiskis Case (Estonia v Lithuania) [1939] PCIJ (ser A/B), No 76, 18.

[87] See Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174 and Case Concerning The Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) [1970] ICJ Rep 3.

[88] Hurwitz, above n 38, 50.

[89] Cheng, above n 29, 307.

[90] Ibid.

[91] Nicolas M Matte, Aerospace Law: From Scientific Exploration to Commercial Utilization (1977) 160 (emphasis added).

[92] Administrative Decision No V (United States v Germany) (1924) 7 RIAA 119.

[93] Ibid 153.

[94] Dixon, above n 65, 245.

[95] Harris, above n 17, 522.

[96] Dixon, above n 65, 150.

[97] Hurwitz, above n 38, 50.

[98] Ambatielos Arbitration (Greece v United Kingdom) (1956) 12 RIAA 83. Harris, above n 17, 617.

[99] Reijnen, above n 45, 197.

[100] Dixon, above n 65, 153.

[101] Interhandel Case (Switzerland v United States) [1950] ICJ Rep 5, 25.

[102] Harris, above n 17, 621.

[103] Finnish Ships Arbitration (Finland v Great Britain) (1934) 3 RIAA 1479. Harris, above n 17, 622.

[104] Robert E Brown Case (United States v Great Britain) (1923) 6 RIAA 120, 129. Harris, above n 17, 622.

[105] (1923) 4 RIAA 11.

[106] Harris, above n 17, 623.

[107] As referred to in Dixon, above n 65, 248.

[108] Elettronica Sicula SpA Case (United States v Italy) [1989] ICJ Rep 15, 42.

[109] Hurwitz, above n 38, 53.

[110] Ibid.

[111] Cheng, above n 29, 345-6.

[112] Hurwitz, above n 38, 52-3.

[113] Gorove, above n 74, 235.

[114] Schwartz and Berlin, above n 70, 711.

[115] Cheng, above n 29, 346.

[116] Cheng, above n 14, 43.

[117] Liability Convention Preamble para 4.

[118] The International Law Commission (‘ILC’) was established by the United Nations General Assembly in 1947 as part of the General Assembly’s mandate to ‘encourag[e] the progressive development of international law and its codification’ (art 13(1) UN Charter). This also reflects the object of the ILC (art 1(1) of the Statute of the International Law Commission). In 1949, the ILC selected the area of state responsibility as one which was suitable for codification.. It commenced its work on this topic in 1955: International Law Commission, The Work of the International Law Commission (3rd ed, 1980) 80.

The ILC Draft Articles deal with the international responsibility of a state for an ‘internationally wrongful act’ (art 1). Article 43 provides that an injured state is to notify the state in breach of an international obligation of its claim arising from that breach.

[119] Article 22 of the consolidated text of Draft Articles, adopted in 1998 by the ILC’s Drafting Committee on first reading (United Nations General Assembly, Draft Articles on State Responsibility, UN Doc A/CN.4/L.569), was titled ‘Exhaustion of local remedies’ and provided that there could only be a breach of an international obligation for the purposes of the ILC Draft Articles ‘if the aliens concerned have exhausted the effective local remedies available to them’ (emphasis added).

[120] Article 44 Draft Articles adopted by the ILC at its 53rd Session on 31 May 2001 and 3 August 2001 and which the it has recommended for consideration by the United Nations General Assembly, Draft Articles on State Responsibility, UN Doc A/CN.4/L.600, provides as follows (emphasis added):

The responsibility of a State may not be invoked if: The claim is not brought in accordance with any applicable rule relating to the nationality of claims; The claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted.

[121] The ICJ is competent to hear a dispute only if the states involved have voluntarily accepted its jurisdiction. One of the ways that this consent is given is by way of an optional Declaration made by a state under art 36(2) of the Statute of the International Court of Justice to the effect that it accepts the compulsory jurisdiction of the ICJ. Such Declarations may be made unconditionally or subject to reservations. In most cases, those states that have deposited Declarations have incorporated some form of reservation, the effect of which has been to limit the matters over which the ICJ may exercise jurisdiction: Dixon, above n 65, 280. As at October 2000, there were 60 Declarations deposited with the ICJ. A state may also withdraw its Declaration, as the US did in October 1985, following the decision in Nicaragua v USA [1984] ICJ Rep 169.

[122] Liability Convention art XII.

[123] Liability Convention art XII.

[124] Liability Convention art XII.

[125] For example, during the two year period 2000-01, Russia alone plans to launch 67 space vehicles: ‘Russia Plans 29 Launches in 2001’, Space Daily, 10 January 2001, .

[126] At the time that the Liability Convention entered into force, only the US and the USSR were engaged in space activities of any significance. The position has since changed radically, with many other states now also involved. These include such diverse countries as the eleven ESA Member States, Japan, Canada, Indonesia, China, Taiwan, Vietnam, Australia, Brazil, Egypt, India, Ukraine, South Korea, Iran, South Africa and Turkey.

[127] Böckstiegel, above n 68, 3.

[128] Liability Convention Preamble para 4.

[129] This seems to be particularly the case in the current political climate; eg, attempts to amend the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972, TIAS 8062 (entered into force 26 March 1975) by the addition of a new protocol have been thwarted by the stand taken by the US. In addition, amendments to the United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 31 ILM 849 (entered into force 21 March 1994) (‘UNFCCC’) by the introduction of the Kyoto Protocol to the UNFCCC, opened for signature 16 March 1998, 37 ILM 22 have also been met by US opposition, and it remains to be seen whether sufficient countries will ratify that agreement in order for it to come into force in 2002, as initially intended.