The trouble with Westphalia in space: the state-centric liability regime.

Author:St. John, Dan
 
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ABSTRACT

What happens when a satellite owned by a private company in one state crashes into another state's satellite? International space law has an answer. The solution, however, reflects a bygone, state-centric era created by the Peace of Westphalia in 1648. A better system must meet demands of the emerging commercial space sector. The treaty framework governing state activities in outer space reflects Cold War fears. Consequently, the space liability regime favors diplomatic, cooperative dispute resolution between states. States, therefore, must sponsor private entities' claims. If the treaty process is ineffective, state responsibility and international liability fill the gaps left by the space liability regime. Today, space is increasingly crowded as commercial ventures launch into space. For them, a state-centric liability regime is ineffective. I conclude by suggesting that states back commercial ventures by subsidizing liability insurance and encourage the private sector to circumvent the treaty framework through contractual allocation of risk.

INTRODUCTION

Outer space has awed humanity for centuries. People, across the globe, turn their faces up to the night sky in wonder. Artists and musicians seek inspiration from it. Scientists, who until recently needed to look up for study, have found ways to break the chains of gravity and travel beyond our globe. With this achievement, humanity is reaching beyond the Earth's surface to place technology in space to enhance our quality of life through communicating nearly instantaneously throughout the global, (1) weather reporting, (2) remote sensing (3) of the Earth's surface to better manage natural resources, (4) and applying advances from space research and development here on Earth. (5) The horizon is bright for humanity if space is used in a thoughtful, efficient manner. For this to happen, law must govern outer space.

Before formal space law developed, prominent international law scholars, politicians, scientists, and some science fiction authors (6) considered how law and space would interact. This diverse collection of thinkers helped set the stage for more formal legal talks and helped cement the spirit of cooperation through the foundational legal documents enumerating outer space law. (7) These documents, although crafted with an eye on cooperation and a brighter future, are products of the Westphalian state system. In 1648, the Peace of Westphalia created the modern foundation of international law by building international relations around organized states with geographic boundaries. Consequently, solutions must come from the state-centric international legal regime despite the focus on cooperation. This cooperative spirit must continue and evolve to become a stabilizing force that tempers national interest. A space law liability regime that embodies this will likely be more effective than one where states jealously guard their sovereignty.

In 1989, Space Services, Inc. changed the status quo of space law when it becomes the first private company to launch a satellite into orbit. (8) Due to technological advancements in rocketry and the retirement of the Space Shuttle, even more private space actors are expected to launch payloads into space. (9) Cooperation is increasingly important (10) because outer space is becoming more cluttered as states and commercial ventures undertake other space missions and launch more satellites and space stations.

Experts estimate that of the approximately "19,000 man-made objects in orbit," only 900 of those objects are satellites. (11) This junk, which includes dead satellites, paint flecks, wrenches, and other spacecraft detritus, is called "space debris" and poses a significant danger to any operation in space. (12) For example, a 0.2 millimeter in diameter paint chip caused quite a scare when it pitted the Space Shuttle Challenger's windshield. (13) If space debris is left unchecked, scientists worry that low Earth orbit will become unusable. (14) The "Kessler effect" posits that at a certain point, a cascade of collisions will envelop Earth and close off access to certain areas of space. Debris mitigation policies, which ideally require space objects to not jettison debris and be removed from orbit at end-of-life, are not uniformly adopted by space powers. (15) The United Nations, however, made a large leap forward in 2008 when the General Assembly adopted debris mitigation guidelines with the intent to limit orbital hazards. (16)

With more actors in space, there will be more collisions, which will lead to more claims for liability. (17) These claims will present a challenge because, although international space law has a framework for assigning liability, it is a state-centric regime that does not address private actors. (18) General principles of international law, however, fill the gaps left in the space liability regime. While state responsibility and international liability do much to assuage liability concerns, they are still unwieldy for private actors. Going forward, states need to balance providing recovery to victims without stifling commercial space development.

Part I of this paper discusses the development of outer space law generally. The legal documents developed concurrently with leaps of technological advancements, meaning foundational documents were drafted with the future in mind. Coupled with the intent of tempering Cold War fears, early space law documents built a highly aspirational legal framework, which lead states to draft more workable laws guided by the space treaties. Part II focuses on the liability framework established by the Outer Space Treaty and the Liability Convention. In particular, this section clarifies important terms, discusses the claim process and the different liability regimes, explains how compensation is made, and how a state limits its liability. Part III explores traditional international law principles of state responsibility and international liability, which gaps in the space treaties. Part IV then discusses how Canada used the Liability Convention to make a claim for damages caused by the crash of the Soviet Union's Cosmos 954 satellite. This is the only case where Liability Convention has been used to solve a dispute. Although the procedures were not rigorously applied, the Convention did help resolve the dispute. In conclusion, the space liability regime must change to encourage private space development. The state-centric regime serves an important purpose, but it must relax in order to allow more commercial actors to develop.

  1. DEVELOPMENT OF OUTER SPACE LAW

    1. Enter Space Law

      On October 4, 1957, a beach ball sized metal sphere called Sputnik blasted into orbit and opened the eyes of the world to a new frontier of scientific and technological exploration. The 1960s were a decade of rapid advances in space technology as the United States and Soviet Union launched larger manned rockets and planned more ambitious space missions. (19) Because of the rapid scientific and technological strides, the law of outer space had to develop quickly. (20) In response, the United Nations established the Committee on the Peaceful Uses of Outer Space (COPUOS) in 1959 to address the unique legal issues that arise from space activities. (21) COPUOS's main goals were to promote peaceful space activities, encourage cooperation, and establish a legal regime. (22)

      After eight years of debate, the Committee proposed the Outer Space Treaty, (23) which laid out a general framework for governing space activities. (24) The treaty came into force in October 1968 and, as of January 2006, 125 states have agreed to be bound by its terms. (25) In 1972, COPUOS added more details to the Outer Space Treaty's liability provisions through the Liability Convention. (26) As of January 2006, 108 states follow the Liability Convention's regime. (27) To give more force to these treaties, (28) in 1976 the Registration Convention set up a structure for states to register and track spacecraft. (29)

      In total, five treaties govern activities in outer space, (30) while five General Assembly non-binding resolutions (31) further clarify principles of international law in outer space. (32) Despite the relative youth of space law, several core concepts have crystallized into customary international law through state practice. (33) Customary international law is state practice accepted as law. (34) It is a formative process where, over time, states give certain customs the force of law. (35) The customary international laws relating to space are that space is governed by international law; (36) national appropriation in space is forbidden; (37) space and its resources are to be used for the benefit of humanity; (38) states are responsible for their actions in space; (39) states are liable for damage; (40) and space objects have free transit over a state's "subjacent territory," meaning that a satellite may freely pass over a state's territory so long as the satellite is in orbit. (41) These rules of customary law, therefore, are binding on all states. (42)

      The Outer Space Treaty was a success partly because it was drafted by blending science and jurisprudence. (43) Including scientists in the drafting process helped form a legal framework that incorporated technological necessities. (44) However, technological development progresses quickly and the treaty-making process is slow. Drafters of the space treaties, for example, could not have fathomed the drastic increase in commercial space activities. (45) States, therefore, must now increasingly rely these on informal principles, guided by the aspirational documents, to govern their activities.

      Space law, fundamentally, is a specialized body of law within international law. (46) Sources of space law are the same as other international law: treaties, customary international law, general principles of international law, and scholarly writing and...

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