The physical condition of the environment in which space activities take place must be conducive to the safe and sustainable development and implementation of all space operations. Rapidly increasing debris in space is posing serious risks to space activities of all nations. Such risks are real, as evidenced by an unprecedented collision between a defunct Russian satellite weighing about 900 kg (Cosmos 2251) and an active about 500 kg U.S. commercial satellite (Iridium 33). The theory of “big sky” or “vastness of space” is being questioned as space operators face new challenges primarily due to the enhanced risks posed by an ever increasing number of space debris, particularly in the region of space that is being used extensively for meeting important earthly needs, like communications, Earth observation, weather forecasting, reconnaissance, navigation and global positioning services, early warning, etc. The availability and risk-free utilisation of space is becoming difficult. The accident seems to have sounded a wakeup call for all countries, especially the space-faring nations and the States having an interest in the exploration and use of space. From that perspective, this paper addresses some relevant questions associated with the legal and policy aspects of the Iridium- Cosmos collision. Specifically discussed are the issues concerning possible liability of the States directly involved in the collision under currently applicable international law; the general space environment; added risks and costs due to the debris created by the collision; and, finally, the concerns of space operators and some governments and the efforts they are making to achieve and maintain safe and sustainable development and use of space. Undoubtedly, these issues are highly complex. However they are discussed here in a general fashion and no attempt is made to carry out a thorough critical analysis in this paper.
- Space Object
- Outer Space
- Space Debris
- Defense Advance Research Project Agency
- Space Operation
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Treaty on Principles governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/ Washington, done 27 January 1967, entered into force 10 October 1967, 610 UNTS 205, 6ILM 386 (1967).
Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/Washington, done 29 March 1972, entered into force 1 September 1972, 961 UNTS 187, 10 ILM 965 (1971).
Article VII of the Outer Space Treaty stipulates that a launching State is internationally liable for damage caused by its space object. Similarly, Articles II and III of the Liability Convention provide that a launching State is (a) absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight and (b) liable if the damage is caused in outer space and is due to its fault or the fault of persons for whom it is responsible.
Article VII of the Outer Space Treaty and Article I (c) of the Liability Convention similarly specifies that a ‘launching State’ is a State that launches or procures the launching of an object and a State from whose territory or facility an object is launched.
Information Furnished in Conformity with the Convention on Registration of Objects Launched in to Outer Space. “Note verbale dated 14 June 1994 from the Permanent Mission of the Russian Federation to the United Nations addressed to the Secretary General”. UN Doc. ST/SG/SER.E/275 of 13 June 1994. Vienna: United Nations: 2. It should be noted that there is a typographical error in writing the number of the satellite; i.e. it is listed as 2551, but the number should have been 2251.
According to Article VI of the Outer Space Treaty, States bear international responsibility for national activities in outer space, whether such activities are carried on by their governmental agencies or by non-governmental (private) entities, and for assuring that their national activities are carried out in conformity with the provisions set forth in the Treaty. The activities of non-governmental entities require authorisation and continuing supervision by the appropriate State. NASA National Space Science Data Centre, an official entity of the U.S. Government, enlists Iridium LLC of the United States as the funding agency of Iridium 33 satellite: see NASA National Space Science Data Centre. 2 Nov. 2009. http://nssdc.gsfc.nasa.gov/nmc/spacecraftDisplay.do?id=1997-051C.
NASA National Space Science Data Centre. 2 Nov. 2009. http://nssdc.gsfc.nasa.gov/nmc/spacecraftOrbit.do?id=1997-051C. On 4 March 1998, Russia informed the UN that “On 14 September 1997, seven Iridium satellites were placed in Earth orbit by a single Proton carrier rocket from the Baikonur launch site. [... ] The satellites are owned and operated by the Motorola company (United States of America)”. See: Information Furnished In Conformity With The Convention On Registration Of Objects Launched Into Outer Space. “Note verbale dated 4 March 1998 from the Permanent Mission of the Russian Federation to the United Nations addressed to the Secretary-General”. UN Doc. ST/SG/SER.E/332 of 19 March 1998. Vienna: United Nations.
“Communications Act of 1934”. Federal Communications Commission. 3 Nov. 2009. http://www.fcc.gov/Reports/1934new.pdf. Also applicable are the U.S. Code of Federal Regulations: Title 47-Telecommunication; Chapter I-Federal Communications Commission; Part 25-Satellite Communications.
The official U.S. Registry of Space Objects Launched into Outer Space, which is maintained by the U.S. Department of State’s Bureau of Oceans and International Environmental and Scientific Affairs, enlists Iridium 33 (with International Code 1997-051C and NORAD 24946), for which the USA is the flag state and affirms that the satellite was not registered with the UN by the U.S. See: U.S. Space Objects Registry. 2 Nov. 2009. http://usspaceobjectsregistry.state.gov/registry/dsp_DetailView. cfm?id=1517. Similarly, the SPACEWARN Bulletin Number 527 substantiates that Iridium 33 was an American communications spacecraft that was launched with a Russian Proton-K rocket. See: “SPACEWARN Bulletin Number 527”. 1 October 1997. NASA National Space Science Data Centre. 2 Nov. 2009. http://nssdc.gsfc.nasa.gov/spacewarn/spx527.html.
According to Article VIII of the Outer Space Treaty, a State “on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object”.
Convention on Registration of Objects Launched into Outer Space (hereafter Registration Convention), New York, done 14 January 1975, entered into force 15 September 1976, 1023 UNTS 15, 14 ILM 43 (1975). Article IV (1) of the Convention requires each State of registry to furnish to the Secretary-General of the United Nations information concerning each space object carried on its registry.
Cheng, Bin. General Principles of Law as Applied by International Courts and Tribunals. Volume 2 of Grotius classic reprint series. Cambridge: Cambridge University Press, 2006: 225.
NASA National Space Science Data Centre. 2 Nov. 2009. http://nssdc.gsfc.nasa.gov/nmc/spacecraftDisplay.do?id=1997-051C.
The Cosmos satellite involved in this collision was a’ space object’ under the Liability Convention, irrespective of the fact that it was non-functional or apiece of space debris. It should be kept in mind that Cosmos 954 too was a non-functional object when it crashed into Canadian territory and the Soviet Union did pay to Canada “the sum of three million Canadian dollars (C$ 3,000,000.00) in full and final settlement of all those matters [...] [connected with the disintegration of the Soviet satellite Cosmos 954 in January 1978], including the claim advanced by Canada in this respect”. See: Disintegration Of Cosmos 954 Over Canadian Territory In 1978. 2 April 1981. Doc. Ref. Canadian Department of External Affairs. Communiqué No. 27.
Article 1 (2) of the Outer Space Treaty specifies that, “Outer space [...] shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law”. By implication, this Article obliges States to refrain from causing damage to, and interfering with the similar use of space by, other States.
According to the Deputy Legal Advisor to the United States Department of State, the emergence of a new customary rule may result in a modification in the operation of a prior treaty rule. To substantiate his opinion, he relies on Article 68(c) of the 1964 International Law Commission draft articles on the law of treaties, which stated that “the operation of a treaty may be modified by subsequent emergence of a new rule of customary law relating to matters dealt with in the treaty and binding upon all the parties”. 2 ILC Yearbook 198 (1964); adopted unanimously, 1ILC Yearbook 318 (1964). 2 Nov. 2009. http:// www.state.gov/s/l/65626.htm. Also, the International Court of Justice recognised in the 1974 Fisheries Case that the right of a State to set up twelve-mile fishing zones had crystallised as customary international law notwithstanding the provisions in the 1958 High Seas Convention creating freedom of fishing on the high seas. See: Fisheries Jurisdiction Case (United Kingdom v. Iceland, Merits), Judgment of 25 July 1974 (1974) I.C.J. Rep. 3.
A practice of States becomes a rule of customary international law only when it is followed with a sense of legal obligation (opinio juris sive necessitatis). North Sea Continental Shelf Cases (Denmark/The Netherlands v. Federal Republic of Germany) Judgment of 20 February 1969 (1969), I.C.J. Rep.:3. at page 44: “Not only must the acts [ofStates] concerned amount to a settled practice, but they must also be such, or be carried out in such away, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.”
For example, see U.S. Government Orbital Debris Mitigation Standard Practices. 2 Nov. 2009. http://www.orbitaldebris.jsc.nasa.gov/library/USG_OD_Standard_Practices.pdf.
It may be also noted that normally, a State is not considered responsible for an illegal act of its non-State actors unless there is a genuine link between the act and the State; i.e. an illegal act must be somehow imputable to the concerned State. However, that principle of international law has been modified by Articles VI and VII of the Outer Space Treaty, which make a State responsible (and possibly liable) for the space activities of all its entities. Even under general International law, according to Richard S.J. Tol and Roda Verheyen, “as soon as an activity is permitted or licensed by a state (under the control of... ), the resulting behaviour is attributable to the state because [the principle that] states must exercise due diligence in [the] control of private persons is an acknowledged principle”. Tol, Richard S. J. and Roda Verheyen. “State Responsibility and Compensation for Climate Change Damages — a Legal and Economic Assessment”. Energy Policy 32.9 (2004): 1111. As noted earlier, the operation of Iridium 33 was licensed by, and under the control of, the U.S. Government, thus the U.S. was (and will remain) responsible (and possibly liable) for any damage, harm or injury caused by or with this satellite (or its debris).
Article 1 (2) of the Outer Space Treaty specifies that, “Outer space [... ] shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law”.
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The Corfu Channel Case (Merits), Judgment of 9 April 1949 (1949) I.C.J. Rep.: 4. at p. 23.
The Registration Convention, Article IV (3).
According to Article I (a) of the Liability Convention, the term ‘damage’ “means loss of life, personal injury or other impairment of health; or loss of or damage to property”.
For example, the principles incorporated in the 2007 COPUOS Space Debris Mitigation Guidelines, discussed below.
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Jakhu, R.S. (2010). Iridium-Cosmos collision and its implications for space operations. In: Schrogl, KU., Rathgeber, W., Baranes, B., Venet, C. (eds) Yearbook on Space Policy 2008/2009. Yearbook on Space Policy. Springer, Vienna. https://doi.org/10.1007/978-3-7091-0318-0_10
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