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International Liability for Damage Caused by Space Objects

Published online by Cambridge University Press:  27 February 2017

Carl Q. Christol
Carl Q. Christol*
Affiliation:
University of Southern California
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Extract

The exploration and use of the space environment, consisting of outer space per se, the moon, and celestial bodies, may result in harm to persons and to property. International law and municipal law have focused on rules allowing for the payment of money damages for harm caused by space objects and their component parts, including the “payload.” Both forms of law have accepted the basic proposition that money damages should compensate for harm. Principal attention will be given in this analysis to the kinds of harm caused by space objects that are considered to be compensable under international law at the present time.

Type
Research Article
Information
American Journal of International Law , Volume 74 , Issue 2 , April 1980 , pp. 346 - 371
Copyright
Copyright © American Society of International Law 1980

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References

1 Articles calling attention to U.S. statutes, such as the Federal Tort Claims Act, 28 U.S.C. §§2671-2680 (1970), and NASA's authority to dispose of certain classes of claims, 42 U.S.C. §2473(c)(13) (1970), as amended in 1979, where the amount in controversy is no more than $25,000, have been written by Dula, Management of Interparty and Third-Party Liability for Routine Space Shuttle Operations, 26 Drake L. Rev. Ins. L. Ann. 741, 746-54 (1976-77); Hosenball, Space Law, Liability and Insurable Risks, 12 The Forum 141, 153-54 (1976); Wilkins, Substantive Bases for Recovery for Injuries Sustained by Private Individuals as a Result of Fallen Space Objects, 6 J. Space L. 164-69 (1978). The Federal Tort Claims Act, as a waiver by the United States of its sovereign immunity from suit, is subject to exceptions. One is that a U.S. district court may not adjudicate in a situation where the tort has occurred abroad. M. Whiteman, 8 Digest of International Law 813 (1967).

2 Government of Canada, Department of External Affairs, Communiqué No. 8, January 23, 1979. Canada also indicated that its claim was for compensation and was “without prejudice to the right of Canada to make additional claims for compensation in this matter in respect of damage not yet identified or determined.” Letter, Canadian Secretary of State for External Affairs to the Ambassador of the Soviet Union to Canada,File No. FLA-268, January 23, 1979. Correspondence between the two states relating to the claim down to March 15, 1979, is set out in 18 ILM 899 (1979). In its note of March 15, 1979, to the Soviet Union, reference was made by Canada to its “claim for damage caused to Canada upon the crash of Soviet Satellite Cosmos 954.” Id. at 909. Canada also referred to costs incurred as a result of search and recovery operations “undertaken as a consequence of the events giving rise to Canada's claim.“ Ibid. Canada reserved its right to “claim from the Government of the Union of Soviet Socialist Republics payment of interest at an appropriate rate on the amount of compensation declared payable by a Claims Commission, such interest to accrue from the date of the decision or award of the Claims Commission.” Id. at 908. Canada had not received a substantial response from the Soviet Union as late as September 1979. However, on September 28 a discussion took place between the Canadian and Soviet representatives to the United Nations in New York. The latter stated that a response could be expected. Communication to the author from the Canadian Department of External Affairs, October 31, 1979. As of that date, the promised response had not been received by Canada.

3 24 UST 2389, TIAS No. 7762. The Soviet Union is also a party, as are about 60 other states. The agreement entered into force for the United States on October 9, 1973. It will be referred to hereinafter as the Liability for Damages Convention. An assessment of international space law agreements and general principles of international law applicable to the Cosmos 954 incident is provided by Galloway, Nuclear Powered Satellites: The V.S.S.R. Cosmos 954 and the Canadian Claim, 12 Akbon L. Rev. 401 (1979); Matte, Cosmos 954: Coexistence pacifique et vide juridique, 3 Annals Air Space L. 483 (1978).

4 Art. 10, para. 3, Draft No. 12, April 15, 1961, 55 AJIL 548, 553 (1961); compare Restatement (Second) of Foreign Relations Law of the United States §192 (1965).

5 Haanappel, Some Observations on the Crash of the Cosmos 954, 6 J. SPACE L. 147, 148 (1978) (emphasis in original). Canada, beginning in February 1978, has submitted statements to COPUOS describing materials and contamination found on Canadian territory following the Cosmos 954 mishap. UN Doc. A/AC.105/214 (Feb. 8, 1978); UN Doc. A/AC.105/217 (March 6, 1978); UN Doc. A/AC.105/220, at 3-8 (May 20, 1978); and UN Doc. A/AC. 105/236 (Dec. 22, 1978). The same information was provided directly to the Soviet Union. 18 ILM 912, 920-22, 929-30 (1979). The Soviet Union has also filed with COPUOS a statement concerning its policy on nuclear power for space objects. UN Doc. A/AC.105/220/Add.l, at 14-19 (June 27, 1978).

6 Hosenball, supra note 1, at 153. Section 308(a), (b), (c), (d), and (e) of the National Aeronautics and Space Administration Authorization Act, 1980, makes provision within the context of insurance and indemnification for conduct resulting in “death, bodily injury, or loss of or damage to property resulting from activities carried on in connection with the launch, operations or recovery of the space vehicle.” Pub. L. 96-48, 93 Stat. 349 (Aug. 8, 1979). Risks that can be insured against include prelaunch, launch, in-orbit, and third-party liability. Thoma Shimrock, Insurance of Satellites, Esa Bull. No. 16, Nov. 1978, at 65.

7 Disher, Space Transportation, Satellite Services, and Space Platforms, Astronautics Aeronautics, No. 4, Apr. 1979, at 42. 8 For a depiction of the profile of the shuttle's projected reentry into the atmosphere from outer space, see Doyle, , Reentering Space Objects: Facts and Fiction, 6 J. Space L. 107 (1978)Google Scholar; Menter, Relationship of Air and Space Law, in Proceedings of the 19th Colloquium on the law of Outer Space 164 (1977).

8 For a depiction of the profile of the shuttle's projected reentry into the atmosphere from outer space, see Doyle, , Reentering Space Objects: Facts and Fiction, 6 J. Space L. 107 (1978)Google Scholar; Menter, , Relationship of Air and Space Law, in Proceedings of the 19th Colloquium on the Law of Outer Space 164 (1977)Google Scholar.

9 Sloup, , The NASA Space Shuttle and Other Aerospace Vehicles: A Primer for Lawyers on Legal Characterization, 8 Cal. W. Int'L L.J. 403, 453 (1978)Google Scholar; Sloup, Mossinghoff, Legal Issues Inherent in Space Shuttle Operations, 6 J. Space L. 47 (1978)Google Scholar.

10 This will clearly be the case regarding anything launched from the shuttle while the shuttle is in orbit. In 1972 when the U.S. Senate was seeking to understand the meaning of the term “space object” as it appeared in the Convention on International Liability for Damage Caused by Space Objects, the Department of State supplied a memorandum stating:

It appears to be the view of most international lawyers that the term “space object” includes any object launched by man for the purpose of orbiting or escaping the celestial body from which it is launched…. The test is not only whether the object does go into orbit or beyond, but also whether any object that is launched by rocket propulsion is intended to go into orbit or beyond….

Senate Comm. on Foreign Relations, Convention on International Liability for Damage Caused by Space Objects, S. Exec. Rep. 92-38, 92d Cong., 2d Sess. 9 (1972) [cited hereinafter as S. Exec. Rep. 92-38].

Pursuant to the terms of sec. 308(f)(1) of the National Aeronautics and Space Administration Authorization Act, 1980, adopted on August 8, 1979, dealing with insurance and indemnification relating to launch, operations, or recovery of the space vehicle, the shuttle was treated as a space vehicle. Thus, “the term ̒space vehicle̓ means an object intended for launch, launched or assembled in outer space, including the space shuttle and other components of a space transportation system, together with related equipment, devices, components and parts.” Pub. L. 96-48, 93 Stat. 349 (1979). Prior to the 1979 statute, the U.S. Federal Aviation Administration had decided not to treat the shuttle as an aircraft under the 1958 Federal Aviation Act.

11 Foster, , The Convention on International Liability for Damage Caused by Space Objects, 10 Canadian Y.B. Int'l L. 137, 159 n.73 (1972)Google Scholar.

12 18 UST 2410, TIAS No. 6347, 610 UNTS 205, reprinted in 6 ILM 386 (1967). This treaty entered into force for the United States on October 10, 1967. The Soviet Union is also a party, as are about 80 other states. This treaty will be referred to hereinafter as the 1967 Outer Space Treaty.

13 Hosenball, supra note 1, at 154.

14 Monetary harm for which compensation is to be paid pursuant to Article 12 of the Liability for Damages Convention is based on the duty of the international tort feasor to “restore the person, natural or juridical, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred.” By October 15, 1978, a total of 4,621 objects had been observed in space by the Space Detection and Tracking System (SPADATS) of the North American Air Defense Command (NORAD). Of this number, 3,574 were earth orbiting and space probe debris. The United States was responsible for the introduction of 2,573 and the Soviet Union for 935. Menter, Space Objects: Identification, Regulation and Control (paper delivered at the Symposium on International Law and the Environment, University of Virginia School of Law, October 20, 1978). The landing of Skylab in and off the coast of Australia on July 11, 1979, relieved anxieties over prospective harm of considerable magnitude. In November 1979, the U.S. space object Pegasus II made an ocean landing without incident.

15 Dembling, , Cosmos 954 and the Space Treaties, 6 J. Space L. 129, 131 (1978)Google Scholar. Compare Galloway, supra note 3, at 405-07.

16 However, Article VII of the 1972 Liability for Damages Convention excluded from coverage “foreign nationals” who are participating in a launch, who are engaged in the launch until its descent, or who are at a launching site as the result of an invitation by the launching state.

17 States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.

See note 12 supra.

18 Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the moon and other celestial bodies. Ibid.

19 Article 38 of the Statute of the International Court of Justice. Whiteman (note 1 supra, at pp. 1241 and 1263) notes that customary international law and general principles of law may be taken into account in dealing with the subject of damages. 20 Reis, , Some Reflections on the Liability Convention for Outer Space, 6 J. Space L. 126 (1978)Google Scholar.

20 Reis, , Some Reflections on the Liability Convention for Outer Space, 6 J. Space L. 126 (1978)Google Scholar.

21 [1928] PCIJ, Judgment No. 13 (Merits), ser. A, No. 17, at 47.

22 Ibid. See also Restatement (Second) of Foreign Relations Law, supra note 4, §188.

23 Staff of Senate Comm. on Aeronautical and Space Sciences, 92d Cong., 2D,Sess., Report On Convention On International Liability For Damage Caused By Space Objects, Analysis And Background Data 44 (Comm. Print 1972).

24 General Assembly Resolution 2995 (XXVII) of December 15, 1972, also acknowledges the legal significance of Principle 21.

25 [1949] ICJ Rep. 4, 22, reprinted in 43 AJIL 558 (1949).

26 3 R. Int'l Arb. Awards 1965-66 (1949), reprinted in 35 AJIL 684 (1941).

27 GA Res. 1963 (XVIII), Dec. 13, 1963; GA Res. 2130 (XX), Dec. 21, 1965; GA Res. 2222 (XXI), Dec. 19, 1966.

28 .UN Doc. A/AC.105/C.2/SR.60, at 4 (1966).

29 UN Doc. A/AC.105/C.2/L.8/Rev.3 (1965). A comparison of the U.S. proposal with those of Belgium and Hungary is contained in UN Doc. A/AC.105/C.2/W.2/Rev.3 (1965). It has been reprinted in S. H. lay & H. J. Taubenfeld, the Law Relating to Activities of Man in Space 277-87 (1970).

30 UN Doc. A/AC.105/C.2/L.8/Rev.3 (1965).

31 UN Doc. A/6431, Ann. 3, at 12 (1966).

32 UN Doc. 105/35, Ann. 3, at 10 (1966).

33 UN Doc. A/AC.105/C.2/L.8/Rev.3 (1965). However, this provision later became a key part of Article XII of the Liability for Damages Convention.

34 Treaty on Outer Space: Hearings before the Senate Coram, on Foreign Relations on Executive D, 90th Cong., 1st Sess. 39 (1967).

35 Id. at 71. An assessment of the relationship between Articles 7 and 9 is contained in C. Q. Chmstol, Satellite Power System (SPS) White Paper on International Agreements 138-41 (Department of Energy/National Aeronautics and Space Administration, 1978).

36 Senate Comm. on Foreign Relatiotions, Treaty on Outer Space, S. Exec. Rep. No. 8, 90th Cong., 1st Sess. 5 (1967).

37 S. Exec. Rep. 92-38, supra note 10, at 1. 38 See note 3 supra.

38 See note 3 supra.

39 G A Res. 2260 (XXII), Nov. 3, 1967;

40 GA Res. 2345 (XXII), Dec. 19, 1967; GA Res. 2453B (XXIII), Dec. 20, 1968.

41 GA Res. 2601B (XXIV), Dec. 16, 1969.

42 S. EXEC. Rep. 92-38, supra note 10, at 7.

43 TIAS No. 8480, GA Res. 3235 (XXIX), Sept. 15, 1976. The agreement entered into force for the United States on September 15, 1976.

44 Sec. 308(f)(1), Pub. L. 96-48, 93 Stat. 349 (1979).

45 Id., sec. 308(f)(2).

46 Foster, supra note 11, at 159 n.79.

47 Ibid.

48 N.Matte, Aerospace Law 157 (1977). He finds support for this generalized conclusion in the definition of a space object and in the travaux préparatoires of the Liability Convention, citing UN Docs. A/AC.105/C.2/SR.94, 95, and 97 (1968).

49 Reis, supra note 20, at 127.

50 UN Doc. A/AC.105/C.2/L.8/Rev.3 (1965).

51 [1928] PCIJ, ser. A, No. 17, at 47.

52 It will be recalled that this convention also allows foreign natural or juridical persons to make direct claims against the launching state.

53 Alexander, , Measuring Damages Under the Convention on International Liability for Damage Caused by Space Objects, 6 J. Space L. 151, 153 (1978)Google Scholar.

54 W. L. Phosser, Law of Torts 49-51 (4th ed., 1971).

55 Christol, , Protection of Space from Environmental Harms, 4 Annals Air & Space L. 433 (1979)Google Scholar.

56 Dembling, supra note 15, at 133 et seq.

57 Recovery depends on a showing of the medical and hospital expenses occasioned by the injury, the extent of the injury and the physical suffering resulting therefrom, loss of time from gainful employment, extent of impairment of earning capacity, and, where there is personal injury, “mental suffering, shock, grief, worry and the like.” M. Whiteman, supra note 1, at 887.

58 Id. at 900.

59 Foster, supra note 11, at 155.

60 Ibid.

61 Preamble, , Constitution of the World Health Organization, World Health Organization, 2 Official Records 100 (1948)Google Scholar.

62 Comm. on Aeronautical and Space Sciences Report, supra note 23, at 24.

63 Ibid.

64 Hosenball, supra note 1, at 151.

65 M. Whiteman, supra note 1, at 993.

66 Ibid.

67 Foster, supra note 11, at 157.

68 Id. at 158 n.65.

69 Ibid. Such an approach, by focusing on causality and avoiding the direct-indirect debate, would allow for the greatest amount of flexibility in determining individual cases.

70 N. Matte, supra note 48, at 157.

71 Ibid.

72 Haanappel, supra note 5, at 148 (emphasis in original).

73 Gorove, , Cosmos 954: Issues of Law and Policy, 6 J. Space L. 141 (1978)Google Scholar.

74 Foster, supra note 11, at 158 n.65.

75 Cases and Materials on International Law 843 (eds. Friedmann, Lissitzyn, 6c Pugh, 1969), citing L. Oppenheim, 1 International Law (8th ed. Lauterpacht, 1955), at 352.

76 S. Exec. Rep. 92-38, supra note 10, at 7.

77 For a listing of potentially recoverable types of harm, including consortium, see Reis, U.S. Discusses “Applicable Law” for Outer Space Claims, 62 Dept State Bull. 18 (1970).

78 Comm. on Aeronautical and Space Sciences Report, supra note 23, at 24.

79 Foster, supra note 11, at 173.

80 S. Exec. Rep. 92-38, supra note 10, at 7.

81 Hosenball, supra note 1, at 151.

82 Alexander, supra note 53, at 155. He bases his conclusion on the convention's goal of serving “moral right.“

83 Friedmann, Lissitzyn & Pugh, supra note 75, at 845.

84 C. Q. Chmstol, supra note 35, at 135.

85 Restatement (Second) of Torts 2D §904 (1979).

86 .Id §905.

87 Id., §912; compare, C. T. Mccohmick, Handbook on the Law of Damages, 88. 11, “Personal Injuries,” 299 ff. (1935). 88 Hosenball, supra note 1, at 150.

88 Hosenball, supra note 1, at 150.

89 N. Matte, supra note 48, at 169.

90 Foster, supra note 11, at 172.

91 Alexander, supra note 53, at 154.

92 Ibid.

93 Ibid.

94 Id. at 157.

95 Ibid. The author also states: “While such a measure might constitute a ̒damage̓ arising from the launching State's activity, it would certainly go beyond the remedial goal of restoration” (footnote omitted). Ibid.

96 S. Exec. Rep. 92-38, supra note 10, at 10.

97 International Space Law 170 (ed. Piradov, trans. Belitsky, 1976).

98 G. H Hackworthm, 5 Digest of International Law 723-26 (1943).

99 M. Whiteman, supra note 1, at 1215. Compare M. Whiteman, 1 Damages in International Law 716, 722 (1937); 3 id. at 1874 (1943).

100 M. Whiteman, 1 Damages, supra note 99, at 627-30; quotation at p . 628.

101 Reis, supra note 20, at 127.

102 DeSaussure & Haanappel, A Unified, Multinational Approach to the Application of Tort and Contract Principles to Outer Space, in Proceedings of 21st Colloquium on the Law of Outer Space 138 (1978).

103 Ibid.

104 It is clear that the concept of equity is frequently finding its way into important international agreements at present. For example, Article 33 of the 1973 Telecommunication Convention of the International Telecommunication Union provides that the natural resources of the space environment must be used so that countries may have equitable access. TIAS No. 8572, October 23, 1973. The convention entered into force for the United States on April 7, 1976. The Third United Nations Conference on the Law of the Sea in its revised Informal Composite Negotiating Text provides for the delimitation of the continental shelf pursuant to equitable principles. UN Doc. A/CONF.62/WP.10/Rev.l, Art. 83(1), April 28, 1979, reprinted in 18 ILM 725 (1979).