Addressing the challenges of space debris, part 2: liabilityby Michael Listner
|
| The solution to the issue of liability in this context is to grant a general reprieve of liability over existing space debris, which would in effect waive liability under existing treaties. |
For example, after the collision between the derelict Cosmos 2251 and Iridium 33, Russia essentially took the stance that, since Cosmos 2251 was no longer functional, it was not responsible for either tracking it or for its disposal. This fundamentally says that a space object as defined under international law ceases to become such once it is no longer of use to its launching state and, therefore, liability does not attach, including the responsibility to remove it. This stance flies in the face of both Article VII of the Outer Space Treaty and the Liability Convention and can be pinned on intentionally ambiguous interpretations of both accords.
Notably, many states, including some of the non-spacefaring states, feel that the liability for removal of space debris rests with the state that placed it there to begin with. That liability also includes financial liability for damage caused by space debris and the cost of removal. Most of the spacefaring states, including the United States, are obviously less inclined to accept liability for space debris, including liability for in-orbit damages and removal costs, and feel that the responsibility for removal belongs to all states, including the associated costs. Ironically, this point of view seems to support a common heritage approach and thus a common responsibility.
Hence, the implications of legal liability and the resultant financial responsibility makes a definition of space debris a difficult one, especially if that definition is one designed to attach liability to begin with. More so, applying a definition as proposed earlier will be resisted as well, since implying that space debris fits within the definition of space object as described by the Liability Convention means that liability for space debris attaches as well. This is a policy stance that the spacefaring states, including the United States, are unwilling to take. However, until the conundrum of liability is solved to the satisfaction of the spacefaring states, remediation of space debris will not begin in earnest.
The solution to the issue of liability in this context is to grant a general reprieve of liability over existing space debris, which would in effect waive liability under Article VII of the Outer Space Treaty and Article III of the Liability Convention. The creation of the bulk of current space debris is apportioned among the United States, Russia, and China. Given that these three have contributed the most to creating the problem it is logical that they would be in the best position to help remediate it. In no small part to the liability issues discussed above, all three are reluctant to institute measures that would lead to the cleanup, but granting a blanket reprieve from liability for the current body of space debris would provide a incentive to seriously address the issue of remediation.
However, granting a blanket amnesty for liability for space debris will meet resistance especially if it abrogates past, present, and future liability and requires no commitment from the nations receiving the benefit. To that end, in order for a waiver of liability to be granted a state might be required to make certain commitments. Some of those commitments might be as follows:
- The state will have continuing liability for any damage caused by a space object to aircraft or on the surface of the earth under Article III of the Liability Convention and will still be considered bound by the treaty;
- The state would agree that the waiver would only apply to space debris created within a certain timeframe, therefore creating a cutoff date to which the waiver would apply;
- The state would agree to implement and abide by space debris mitigation standards that meet or exceed the UN Debris Mitigation Guidelines for all future launches;
- The state would agree to correlate space debris with the definition of “space object” as found within the Liability Convention;
- The state would agree to identify space objects that it launched, which are now space debris, and provide a plan to remove those space objects from orbit within an agreed to timeframe or expressly abandon them so that they can be removed by another state; and
- The state would agree to enter into good faith negotiations to clarify the responsibilities of states under Article III of the Liability Convention, which deals with liability for damage caused by space objects in outer space.
Admittedly, these conditions are not all inclusive and they are overly simplistic. Without doubt, geopolitical and soft-power maneuvering will play into a decision to waive liability, and it is certain that not only will some of the non-spacefaring nations object, but some of the space faring nations may as well, including one or more among the Big Three. Still, taking this step will show a willingness to solve the issue of space debris in a manner that allows concrete action to remediate space debris instead of solutions that only seek to assign culpability.
Liability for remediation efforts of existing space debris
The other area that liability involving space debris revolves around future efforts to perform remediation in orbit. Future remediation activities will involve several methodologies, including risky rendezvous maneuvers, which could create further space debris or even damage or destroy functional space objects. The result is that remediation activity will create substantial potential liability for states performing these activities, whether it is through the actions of a government actor or a third-party non-governmental organization acting under the jurisdiction of its government.
| The solution in this context lies with taking a lesson from commercial space with respect to suborbital activities, and limit the liability of states performing remediation activities. |
The crux of this potential liability is that government-sponsored remediation activities must have sufficient funding set aside to cover potential exposure. Furthermore, if remediation activities are performed by a private entity on behalf of a state, it may be required to post substantial third-party liability insurance to cover its activities as well as to indemnify its host government. The bottom line is that the cost of insuring remediation activities will be substantial and, considering the large investment in developing and employing technology to remove space debris, the inclusion of sizable insurance premiums may impede remediation activities before they begin.
The solution in this context lies with taking a lesson from commercial space with respect to suborbital activities, and limit the liability of states performing remediation activities. While the risks posed by the suborbital industry are not analogous to orbital activities involving space debris removal, the idea still has merit. Unlike liability in the discussion above, activities involving space debris remediation would by their nature be recognized as potentially hazardous with the potential of further contamination of the outer space environment. Given the inherent risk and the necessity to perform them in order to remove space debris, it would be understood that standards of liability and negligence would be curtailed so that in an event an incident occurs, it will not automatically be assumed that negligence is involved. This does not mean liability for negligence would be abrogated, but rather that a presumption would be made that an incident occurring during remediation activities is a natural consequence of the activity and not the result of negligence. However, limiting liability in this fashion would not limit a state’s liability under Article III of the Liability Convention.
Such a grant of limitation of liability would not preclude the necessity of protocols and agreed-upon practices for space debris removal; however, it would infuse sufficient confidence that liability will not automatically be imposed during the likely event of an incident involving space debris removal, and thus lower insurance requirements to cover potential loss. However, extending immunity from liability and limitation of liability will be a bitter pill to swallow for many. Geopolitics will figure prominently in any decision to do so and could prove to be a hindrance. The question is whether it is more important to assign blame and hence liability to existing space debris, or foster a legal and regulatory environment that would encourage its cleanup.
The Liability Convention
Any talk of abrogating or limiting liability for space debris remediation implicates the Liability Convention: would granting a waiver of liability for an existing body of space debris and limitation of liability for remediation efforts nullify the Liability Convention as international law? The answer is no.
| The abrogation or limitation of liability is a bold step, but bold steps need to be taken to move beyond talking about the problem that space debris represents and implementing measures to solve it. |
As discussed above, abrogating liability for the existing body of space debris and limiting the liability of remediation activities would not absolve a state from liability under Article III of the Liability Convention. Therefore, except for liability under Article IV of the Liability Convention, the treaty would still be binding. This should not be a significant issue because apportioning liability under Article IV itself is an exercise that has yet to be attempted, and for all intents, Article IV is too ambiguous to be practically applied.
However, it is during a period when remediation efforts are underway that diplomatic efforts could begin to come to an agreed-upon understanding of the negligence standard enunciated in Article IV so that it could be applied in the event an involving two space objects at a future date. This means that not only would a period of remediation allow for the cleanup of the outer space environment, but it would also provide an opportunity to clarify existing international space law in terms of liability. so states would be encouraged to act responsibly in the future and provide an clear negligence standard to redress damages.
Conclusion
Liability in the context of space debris removal is a significant issue that must be addressed before remediation efforts will come to fruition. While this essay has addressed some possible solutions to the liability problem, it just scratches the surface of what will be required to overcome the hurdle. The abrogation or limitation of liability is a bold step, but bold steps need to be taken to move beyond talking about the problem that space debris represents and implementing measures to solve it.