Anti-satellite missiles, formerly a thing of science fiction, have relatively recently come to the fore of the world’s attention thanks to test performed by multiple States. Such tests create massive quantities of space debris unnecessarily, which pose a significant threat to the entire space ecosystem.
Russia’s anti-satellite missile test, like similar tests previously carried out by China, India and the United States, destroyed a satellite and left a potentially significant debris cloud. The question emerges: What are the legal consequences when space actors create significant debris in space?
On 15 November 2021, Russia conducted a test of its A-235/PL-19 Nudol ASAT system, a direct ascent anti-satellite missile, against the defunct Russian satellite Kosmos-1408 (also known as Tselina-D). The test reportedly created at least 1,500 pieces of space debris in the low Earth orbit (LEO). These pieces of space debris could be of special concern to space operators which have or plan to have operations in LEO. Space debris can be created both by anti-satellite missile tests and by peaceful operations in space.
While the risks of space debris are well known, the legal regime governing liability for operators and States whose space debris damages a satellite is less so. It is, however, important that space operators be aware of the protections offered to them under international and domestic law so that they can appropriately prepare and react to any space debris threat.
The physical risks of space debris
Space debris is usually defined as anthropogenic objects that persist in extra-atmospheric orbit but do not, or no longer, serve any useful function. The speed at which space debris travels is a function of the orbit in which the debris is located. Space debris can travel at speeds up to 28,000 km/h, several times faster than a bullet. Space debris can persist in orbit for decades.
Space debris creates a significant risk to operational space objects. Because it travels at such high speeds, irrespective of size, space debris can damage or even destroy satellites. It can also require satellite operators to conduct costly manoeuvring operations to avoid a collision.
Increasingly, insurers are suggesting that they will not cover the risk of space debris damage.
The potential damage caused by space debris raises pertinent legal questions of great practical significance for the day-to-day activities of space operators. In particular, must satellite operators bear the risk and costs of space debris damage and of space debris avoidance, absent any form of compensation? There is no definitive answer. Three related questions arise:
What protection do space operators have under international law?
What protection do space operators have under domestic law?
How can space operators prepare for a dispute if it comes to that?
What protection do space operators have under international law?
Where space debris causes damage, international law may enable the affected space operator to obtain relief indirectly through the so-called launching state.
Public international law governs the relations between states. Space law is one of its fields. As space law was substantially created during the Cold War, when space exploration was controlled by governments, it focuses on the protection of States rather than of other space actors, such as private companies.
One key instrument of international space law is the 1972 Convention on International Liability for Damage Caused by Space Objects (the Liability Convention). According to the Liability Convention, in the event of outer space damage, the right to compensation belongs to the state under whose auspices the impacted satellite was launched – not to the space operator directly. Thus, the space operator’s ability to obtain compensation will depend on the willingness of the launching state to seek international compensation on its behalf.
The Liability Convention offers relief through diplomatic channels or, should these fail, a claims commission – an international and independent tribunal that will decide the case.
Establishing fault is a critical issue for such a claim to succeed. A state is only liable under the Liability Convention if the space damage is due to the fault of that State or of an entity for which it is responsible. The definition of ‘fault’ under space law is not clear. Some legal commentators have suggested that the concept could imply the lower threshold of ‘negligence,’ while others argue that it implies the higher standard of ‘intent.’ Depending on how that controversy is resolved, and on the specific circumstances, performing an anti-satellite missile test with prior knowledge that the test might create space debris could arguably constitute fault. This position is supported by non-binding space law, such as the Inter-Agency Space Debris Coordination Committee’s Space Debris Mitigation Guidelines and the Space Debris Mitigation Guidelines of the United Nations Committee on the Peaceful Uses of Outer Space. Both of these instruments stipulate that States should avoid the intentional destruction of space objects where this might create long-living debris.
The Liability Convention also covers damage to property on the surface of the Earth. The threshold for recovering such damage is lower than for damage in space. A State is “absolutely liable” to pay compensation for damage caused by space objects or debris for which it is responsible to property on the surface of the earth or to aircraft in flight. Fault is not required; the impacted State has only to demonstrate a causal link between the launching State and the object or debris that caused the damage.
Importantly, however, under the Liability Convention, recoverable damages are limited to “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.” The costs of tracking space debris and avoiding collisions are not expressly covered by the Liability Convention. The result of a claim for such costs would therefore be uncertain.
As an alternative, some legal commentators have suggested that space operators could resort to investor-State arbitration in order to obtain compensation. International investors can use this dispute settlement mechanism to resolve certain disputes with the State where they have invested (the host State) before a neutral international tribunal constituted specifically to adjudicate the dispute. Investor-State claims are based on bilateral or multilateral investment treaties between the host State and the investor’s home State.
Even where investment arbitration is legally feasible, other factors should also be considered. Political and commercial aspects will play a role, especially where a State’s sovereign military decisions are involved. However, both Liability Convention-based and investment treaty-based claims may also open the possibility of seeking commercially or politically driven amicable settlement or redress.
What protection do space operators have under domestic law?
In addition to the redress potentially available to States on behalf of their space operators, space operators themselves can seek compensation before domestic courts.
The domestic court route provides space operators with the option of acting independently from their home State. However, a major uncertainly arises in determining which domestic courts have jurisdiction to decide such a claim.
As space does not belong to any State, no domestic court could exercise jurisdiction over space damage claims based on the place where the damage occurred. The courts most likely to accept jurisdiction would be the home courts of the party responsible for generating the space debris. Given this uncertainty, it is important to timely seek expert public international law advice in this regard.
Beyond jurisdictional hurdles, a space operator could face other obstacles in its efforts to obtain compensation before a domestic court. For example, there could be concerns regarding the independence of those courts, particularly where a foreign space operator files a claim against an influential domestic entity in the latter’s home court under its domestic law. Other concerns might include the rapidity of domestic legal proceedings.
In most circumstances, domestic courts other than the home courts of the entity allegedly responsibly for the damage are unlikely to offer adequate redress to space operators. To begin with, if a State is responsible for the space debris, the space operator would have to overcome the doctrine of sovereign immunity in order to pursue a claim or enforce a judgment against the responsible State before the domestic courts of another State.
Furthermore, space damage claims – whether before international tribunals or domestic courts – will also face challenges in relation to obtaining and presenting relevant evidence. The entity responsible for the space debris is usually the entity with access to the relevant evidence, including technical data from terrestrial stations, telemetry and tracking analysis, collision probability assessment, and commands that may have been transmitted to the spacecraft, among others. Even if the space operator manages to access this evidence, expert professional assistance will be required in order to present the evidence in a comprehensible, non-technical manner to a non-expert court or tribunal. Indeed, a domestic court is even less likely to possess relevant expertise than an international tribunal constituted specifically to resolve a given space dispute.
The key to overcoming all these challenges is to be prepared before a dispute arises.
How can space operators prepare for a dispute?
A space operator’s prior preparation for a dispute can make all the difference to the result, whether the dispute is ultimately resolved before an international tribunal or before a domestic court. Such preparation is particularly important in relation to gathering evidence and establishing the quantum of damage suffered by a space operator.
Keeping a paper trail of the data obtained and the decisions taken is key in the evidence production phase of a dispute. Space operators should therefore implement internal evidence collection procedures that can be deployed, once a dispute arises, to facilitate the retrieval of such evidence.
Hiring expert space lawyers who understand how to translate highly technical evidence into legal arguments and proof of damage capable of being understood by non-technical judges and arbitrators is another essential part of a successful space law claim.
Finally, an early assessment of the damage caused is also of extreme relevance. A space operator should be prepared to quantify rapidly, with a high degree of accuracy, all the damage resulting from a collision of space debris with its satellite, or of manoeuvres required in order to avoid such a collision.
In summary, space debris can lead to significant damage to space objects, including satellites and, consequently, to disputes involving the impacted space operators. If such disputes arise, both international and domestic systems may offer avenues for space operators to obtain compensation for the resultant damage. Nonetheless, a space operator’s ability to obtain compensation is subject to significant legal uncertainties.
A prudent space operator should prepare, with expert counsel, for such disputes and for potential changes in national and international law.