Fallen defunct satellites seem to be in fashion these days, including NASA’s decommissioned Upper Atmosphere Research Satellite (UARS) that impacted earth late September. While much was speculated about the potential landing location, little was said about liability should satellite debris injure people or property on its way down. The 1972 U.N. Convention on International Liability for Damage Caused by Space Objects (Convention) addresses this topic, but its process of recovering damages is too vague to be of practical use.
According to the Convention, a country that launches a space object (or from whose territory it is launched) is absolutely liable to pay compensation for damages caused by that object on the surface of the earth or to aircraft in flight. Space Shuttle Discovery deployed the UARS in 1991 after launch from the Kennedy Space Center in Florida. Therefore, the United States would be liable for damages caused by the UARS. But there are some issues left unaddressed by the Convention.
First, the Convention offers no guidance on how to establish damage. Prof. Lawrence Wilkins of the University of Akron School of Law points out that there is no direction on what constitutes a claim; what items of proof are required; and how the allegations are to be evaluated in order to establish damage. Because the Convention does not make a connection to the laws of the claimant State, it is unclear what judicial or administrative avenues should be followed and what rules of evidence can be used to establish proof of damage. The Convention goes only so far as stating that “damage” means loss of life, personal injury or property damage.
Second, the Convention does not define the term “space object.” Is a space object something manufactured specifically for operation in space or does a common artifact transported to space qualify as a space object? What would happen if the space object is completely destroyed upon impact, thus making its identification impossible? Unlike the UARS, falling space debris is not typically publicized. Yet, while most space debris burns upon reentry, several thousand tons of it has made it to Earth. By some estimates, on average, one manmade space object per day hits the surface of the Earth. Unless the offending material is identified as a space object, no damage recovery is possible under the Convention.
Third, the Convention is silent on the issue of causation. While the Convention speaks of damages “caused” by space objects, there is no elaboration on this term. Prof. Wilkins poses several questions: Does cause mean direct cause, or does it refer to one of a series of events? Does cause mean that the object contributed to the injury or that the object caused the event, which resulted in the injury? Can cause be established by simply showing proximity to the object or is a showing of physical impact required?
Fourth, the Convention fails to elaborate on the issue of damages. In 1978, the Russian Kosmos 954 satellite crashed in northern Canada and scattered radioactive material across 1,000 square miles. The Kosmos event illustrates that damages can take many forms. Yet, with the current language of the Convention, we don’t know whether a claim would end with the life of the injured or whether it would survive for the benefit of spouses and children. We don’t know whether lost wages, pain and suffering, mental anguish and loss of consortium could be recovered. We also don’t know whether property devaluation would be covered or whether punitive damages could be recovered against a country that acted with malice or reckless disregard for the rights of the injured.
Fifth, the Convention allows a recovery on damages only upon a claim presented by one country to another. This creates tremendous bureaucratic clutter. For instance, if parts of the UARS had fallen on Australia, injuring an Australian national, that person would not be able to bring a claim directly against the United States under the Convention. It would have to be the state (i.e., Australia) that made the claim.
From the beginning of the space age, the potential danger of falling space debris was recognized. There have been calls for new satellites to be manufactured from materials that burn entirely upon reentry. In the mean time, there is a 50-year legacy constituting tons of space material orbiting above us. It is time to revise the Convention to one that addresses today’s important issues.
Raul Magallanes runs a Houston-based law firm focusing on telecommunications law. He may be reached at +1 (281) 317-1397 or by email at raul@ rmtelecomlaw.com.