Assignment- Air and Space Law

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES DEHRADUN

COLLEGE OF LEGAL STUDIES  A SSIGNMENT SSIGNMENT 1 TITLE:

1972 CONVENTION ON INTERNATIONAL LIABILITY FOR DAMAGES

“

CAUSED BY SPACE OBJECTS”

Submitted to

Submitted by:

Mrs. Saroj bhora

devansh mishra (42)

Asst. professor

500012394

Cols , Upes

R450210042

Introduction

The United Nations General Assembly endorsed the Convention on International Liability for  Damage Caused by Space Objects on November 29, 1971. The Liability Convention was a result of ten years work by the legal Sub-Committee of the Ad Hoc Committee on the Peaceful Uses of  Outer Space (COPUOS). One of the goals of Convention is to provide a measure of damages for  cases involving injury for damages caused by space objects. The final draft, however, included two conflicting definitions for this measure. As a result, it is unclear what damages would be recoverable under the Convention. The Convention on International Liability for Damage Caused by Space Objects, also known as the Space Liability Convention, is a treaty from 1972 that expands on the liability rules created in the Outer Space Treaty of 1967. Because of the accidents that have occurred resulting from space objects, the treaty has never yet been invoked. However, in 1978, the crash of  the nuclear-powered Soviet satellite Cosmos 954 in Canadian territory nearly led to a claim under the Convention. Skylab crashed in Western Australia in the following year, and while there were no deaths, injuries, or significant damage, the shire of Esperance did fine the Government of the United States $400 for littering as a result of Skylab's crashing to earth over  Australia. NASA never paid the debt. The fine was paid in April 2009, when radio show host Scott Barley of Highway Radio raised the funds from his morning show listeners and paid the fine on behalf of NASA. This Note examines the conflicting provisions of the Liability Convention in the context of the Cosmos 954 incident to determine whether the damages that Canada claimed would be recoverable under the Convention. The analysis will illustrate the need for change in the Liability Convention’s definition of the measure of damages. Finally, this Note presents a proposal that would render the provisions more consistent with the spirit and the purpose of the Liability Convention.

EXPLANATION The Liability Convention of 1972 expands upon the principles of liability for damage caused by space objects introduced in Article VII of the Outer Space Treaty of 1967. There are two scenarios where damage could be caused by a space object. The first scenario envisions a space object that causes damage to the surface of the Earth or an aircraft in flight, and the second scenario deals with an event where a space object causes damage someplace other than the surface of the Earth, i.e. a space object, outer space, or another celestial body. Each scenario of the Liability Convention has a different standard of liability. The first scenario applies a strict liability standard whereby a state is considered strictly liable for any damage caused by a space object launched even in the face of circumstances that are outside a its control.

Under this Much attention has been given to the first scenario of the Liability Convention, and considering the experience of applying the Liability Convention to the Cosmos 954 incident, the first scenario can be considered vetted for purposes of future applications, including the potential implications of ROSAT’s reentry. The same cannot be said of the second scenario. Before delving into the complexities of the second scenario’s standard of liability, it is helpful to examine Article I(d) of the Liability Convention, which defines the term “space object” to “…include component parts of a space object as well as its launch vehicle and parts thereof.” By this definition, any component part or module of spacecraft or rocket body is considered a “space object” whether a component was ejected by a space object from an explosion or collision of  space objects. Accordingly, a “space object” can be as large as an intact satellite or as small as a fragment or screw. standard, if more than one state is responsible for the launch of the space object in question then that state will be held joint and severally liable for any damage caused. The first scenario of the Liability Convention was invoked by Canada through diplomatic channels after the reentry and subsequent crash of the RORSAT Cosmos 954 on January 24, 1978 in the northwest territory of  Canada and led to a settlement for the costs of the cleanup and damages. The standard of liability applied under the second scenario is a more arduous one in that it applies a fault liability standard whereby a state will be considered liable only if it can be shown that the damage caused was due to the fault of the state or states responsible for the launch of the space object as the case may be. To date, there have been no instances where the second scenario of the Liability Convention have been applied Purpose of the Liability Convention

Reentry of  space object fragments into the earth’s atmosphere has been rare, relative to the number of space objects presently circling the earth. There is, however, a very real possibility that future space accidents may result in injury to innocent persons, natural or juridical. The Legal Sub-Committee imposed liability on launching states with the intent of inducing those engaged in space activities to take into account the rights of those who might be harmed by such activities. While the advancement of space exploration is important, it must not be pursued at the expense of remediless victims of damage. The members also intended to draft effective rules and  procedures to facilitate the prompt payment of compensation victims. As a result, the Liability Convention is a victim-oriented agreement designed to balance the importance of the advancement of space exploration against the necessity of protecting innocent victims.

Background of the Liability Convention

On December 13, 1958, COPUOS was created to establish legal principles and guidelines governing the use of outer space. The Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space soon followed establishing the application of  international law and the Charter of the United Nations to outer space. The subject of liability for damages space vehicle accidents was first addressed by COPUOS in 1959 and was immediately given priority status. In June 1962, the United States submitted the first draft proposal on liability, thus beginning a ten year process of negotiation, both formal and informal, that ended in the endorsement of the Liability Convention in 1971. During that ten year period, the drafting of two other treaties had an impact on the development, and delayed the drafting of the Liability Convention. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other  Celestial Bodies, was drafted primarily during Legal Sub-Committee’s Fifth Session, held in 1966. It was intended to establish basic principles upon which international space law, in the form of agreements and conventions, could be built. Articles VI and VII of this Treaty pertain to international liability for damages and are the basis upon which Liability Convention was developed.  Negotiation on the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched in Outer Space lasted almost as long as negotiation on the Liability Convention, primarily due to general lack of interest on the part of the delegates from nations other than those from the Soviet Union and the United States. Article 5 of the Return Agreement refers to the obligations of the launching state to bear the expenses of cleanup and recovery when a satellite land in the territory of a signatory state. The Article has been read to relieve the launching state of responsibility for such costs where the launching state does not request the return of its space objects; the Return Agreement does not apply. The victim state must rely on the Liability Convention for any relief in paying for the removal of the space objects. The ten year delay in finalizing the Liability Convention was caused by the lack of consensus among the Legal Sub-Committee members on such issues as the law applicable to the measurement of damages, the status of international organizations with respect to the Convention, dispute resolution procedures, limitation of liability, and nuclear damage. The major  factor in the delay, frequently complained of by the United Nations General Assembly was a  plurality of views among the members of the Legal Sub-Committee. The unwillingness of certain members of the Legal Sub-Committee to participate in its proceedings was blamed for some delay. It was also apparent that the Principles Treaty would have to be completed before a detailed liability agreement could be reached.

The States Parties to this Convention,

Recognizing the common interest of all mankind in furthering the exploration and use of outer  space for peaceful purposes, Recalling the Treaty on Principles Governing the Activities of  States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Taking into consideration that, notwithstanding the precautionary measures to be taken  by States and international intergovernmental organizations involved in the launching of space objects, damage may on occasion be caused by such objects, Recognizing the need to elaborate effective international rules and procedures concerning liability for damage caused by space objects and to ensure, in particular, the prompt payment under the terms of this Convention of a full and equitable measure of compensation to victims of such damage, Believing that the establishment of such rules and procedures will contribute to the strengthening of international co-operation in the field of the exploration and use of outer space for peaceful purposes. The State Parties to this Convention,  Recognizing  the common interest of all mankind in furthering the exploration and use of outer  space for peaceful purposes,  Recalling the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Taking into consideration that, notwithstanding the precautionary measures to be taken by States and international intergovernmental organizations involved in the launching of space objects, damage may on occasion be caused by such objects,  Recognizing  the need to elaborate effective international rules and procedures concerning liability for damage caused by space objects and to ensure, in particular, the prompt payment under the terms of this Convention of a full and equitable measure of compensation to victims of  such damage,  Believing that the establishment of such rules and procedures will contribute to the strengthening of international cooperation in the field of the exploration and use of outer space for peaceful  purposes Article I: For the purposes of this Convention:

(a) The term “damage” means loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations; (b) The term “launching” includes attempted launching; (c) The term “launching State” means:

(i) A State which launches or procures the launching of a space object; (ii) A state from whose territory or facility spaces object is launched;

(d) The term “space object” includes component parts of a space object as well as its launch vehicle and parts thereof. Article II: A launching State shall be absolutely liable to pay compensation for damage caused  by its space object on the surface of the Earth or to aircraft in flight.

Article III: In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.

Article IV: 1. In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, and of damage thereby being caused to a third State or to its natural or juridical persons, the first two States shall be jointly and sev erally liable to the third State, to the extent indicated by the following:

(a) If the damage has been caused to the third State on the surface of the Earth or to aircraft in flight, their liability to the third State shall be absolute; (b) If the damage has been caused to a space object of the third State or to persons or property on board that space object elsewhere than on the surface of the Earth, their liability to the third State shall be based on the fault of either of the first two States or on the fault of persons for  whom either is responsible. 2. In all cases of joint and several liability referred to in paragraph 1 of this article, the burden of  compensation for the damage shall be apportioned between the first two States in accordance with the extent to which they were at fault; if the extent of the fault of each of these States cannot  be established, the burden of compensation shall be apportioned equally between them. Such apportionment shall be without prejudice to the right of the third State to seek the entire compensation due under this Convention from any or all of the launching States which are  jointly and severally liable. Article V: 1. whenever two or more States jointly launch a space object, they shall be jointly and severally liable for any damage caused.

2. A launching State which has paid compensation for damage shall have the right to present a claim for indemnification to other participants in the joint launching. The participants in a joint launching may conclude agreements regarding the apportioning among them of the financial obligation in respect of which they are jointly and severally liable. Such agreements shall be without prejudice to the right of a State sustaining damage to seek the entire compensation due under this Convention from any or all of the launching States which are jointly and severally liable.

3. A State from whose territory or facility a space object is launched shall be regarded as a  participant in a joint launching. Article VI: 1. Subject to the provisions of paragraph 2 of this article, exoneration from absolute liability shall be granted to the extent that a launching State establishes that the damage has resulted either wholly or partially from gross negligence or from an a ct or omission done with intent to cause damage on the part of a claimant State or of natural or juridical persons it represents. Article XXVII: Any State Party to this Convention may give notice of its withdrawal from the Convention one year after its entry into force by written notification to the Depositary Governments. Such withdrawal shall take effect one year from the date of receipt of this notification. Article XXVIII : This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the Depositary Governments. Duly certified copies of this Convention shall be transmitted by the Depositary Governments to the Governments of the signatory and acceding States.