Not-so-toothless norms for outer space (GS Paper 3, Science and Tech)
Context:
- As the number of countries reliant on space-based services continues to grow, the momentum is also growing for the development and establishment of international “norms of behaviour” for space activities.
- Such “norms” constitute widely accepted baseline standards of behaviour in space held by the international community at large.
Legally binding norms:
- The United Nations has had some success adopting such norms in the past, such as the 2007 Space Debris Mitigation Guidelines and the 2011 Long-Term Sustainability Guidelines for Space Activities, both of which dealt largely with space “safety”.
- However, the international community has had less success with the adoption of norms for space “security”. One criticism often cited when discussing norms in a security context is that they are voluntary and no “substitute for legally binding instruments”.
- Given the nature of space security and the strategic threats present in this field, it is not surprising that states seek stronger measures to ensure stability in outer space. Yet the notion that “norms” for space activities do not have any legal consequences is not entirely accurate.
- Indeed, the establishment of norms infuses meaning in the legal concept of “fault”, and thereby, can be used to establish liability under the Convention on International Liability for Damage Caused by Space Objects (Liability Convention). One example of a norm that could lead to legal consequences relates to intentionally created long-lived debris.
Fault Liability:
Article II of the Liability Convention:
- Under Article II of the Liability Convention, a launching state bears absolute liability for any damage occurring on the surface of the Earth or to an aircraft in flight. This means that, regardless of whose fault it was, the launching state is fully liable.
- Perhaps the only instance of this provision being invoked was the case of the Soviet satellite Cosmos 954, which crashed onto Canadian soil. In such cases, there is no dispute about “fault”. The only element that matters is damage.
Article III of the Liability Convention:
- For damage that occurs in outer space, Article III of the Liability Convention provides for fault-based liability. The elements which must be proven are that a space object of one state, due to that state’s ‘fault’, caused damage to the space object of another state.
- While the space environment makes it difficult to prove that one space object collided with another space object, this problem can increasingly be mitigated through technology.
- As Space Situational Awareness (SSA) improves through better ground- and space-based sensors, as well as increased knowledge of orbital dynamics, causation may be easier to demonstrate. Yet the concept of ‘fault’ presents something of a legal black hole.
Compensation & ‘Fault’ under Liability Convention:
- Unlike domestic legal systems, with well-developed jurisprudence on torts or civil codes on delict, the concept of fault is somewhat alien to international law. This is because the traditional means whereby a state might owe compensation arise out of responsibility for internationally wrongful acts.
- The key element for an internationally wrongful act is a breach of an international obligation that is attributable to a state. Where an internationally wrongful act exists, a state is responsible and owes reparations. Under some circumstances, reparations might include compensation.
- The compensation under a theory of international responsibility requires first the breach of an international obligation. Article III of the Liability Convention contains no such element.
- ‘Fault’, for the purposes of the Liability Convention, must be understood in the context of the International Law Commission’s work on international liability for injurious consequences arising out of acts not prohibited by international law.
- In a nutshell, ‘fault’ means an absence of due diligence, which is described as, “a duty of conduct, not of result, meaning that the obligation incumbent on states is to use their best efforts to try to prevent damage or harm occurring to other states.”
A norm against destructive ASAT tests:
- Today, no law or rule prohibits the destruction of one’s own satellites during the testing of anti-satellite weapons. However, given the analysis above regarding ‘fault’, if debris from an ASAT test were to strike another space object, a party might be held liable if it can be shown that the conduct of a state did not rise to the level of “best efforts”.
- Both the 2007 Space Debris Mitigation Guidelines and 2019 LTS Guidelines speak to best efforts at preventative measures regarding debris creation.
- Directly relevant to norms for intentional debris creation is the Report of the Group of Governmental Experts on Transparency and Confidence Building Measures In Outer Space Activities, adopted by consensus in 2013 and including inputs from experts from China, Russia, and the United States (US).
- The GGE Report includes a description of norms for ASAT tests, specifically that they should be avoided (no debris), that they should produce only low, short-lived debris in keeping with Space Debris Mitigation Guidelines (low debris), and that states should inform other potentially affected states of their plans (notification).
Unilateral Commitments:
- The emergence of unilateral commitments by states not to conduct anti-satellite weapons tests at all is the beginning of a norm that debris-generating ASAT tests are inherently highly dangerous and require an even greater level of care not to cause harm.
- These unilateral commitments raise the bar for such activities such that the level of care needed to escape ‘fault’ would be extremely high, greatly limiting the instances where such a test could happen.
- Today, only seven states have adopted policies that prohibit destructive ASAT testing: the US, Canada, New Zealand, Germany, Japan, the Republic of Korea, and the United Kingdom. Many other states, such as France support the initiative though they have not taken similar pledges.
- If this number continues to grow, even among states that are not space-faring nations, it will give even greater weight to the argument that states can be liable for damage caused by debris generated by a destructive ASAT test.
- As such, under the Liability Convention, states would owe compensation for any such damage. Given the incredibly high value of space objects and the amount of debris that can be generated by an ASAT test, the resulting damages could be incredibly high.
- For example, the carrying out of a destructive ASAT test around 500 km in altitude would risk striking objects such as the International Space Station, or any one of SpaceX’s Starlink constellation. The financial implications of being found at ‘fault’ for such harm could potentially be astronomical.
Conclusion:
- While the creation of norms requires voluntary adoption and adherence, it is not completely without legal implications.
- A treaty may come with traditional legal obligations, but norms inform treaties and can set the standards by which they are applied. In this context, norms for outer space activities can inform the way the Liability Convention is applied.
- In the case of debris-generating ASAT tests, there is no law or rule that prohibits them, but a growing norm against such tests can be used to make the case that states can be at ‘fault’ and thus liable for damage caused by resulting debris.
- The more states take this commitment, the stronger the case will be, thus providing some much-needed legal consequences for this dangerous activity.
