Expert Speak Space Tracker
Published on Oct 06, 2022 Updated 21 Days ago
Potential norms against ASAT tests can be used to hold states liable for possible damages
Not-so-toothless norms for outer space 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. 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”.<1>

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.

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”.<2> This criticism indicates that there are no legal consequences if states will not adhere to their obligations. 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

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.<3> In such cases, there is no dispute about “fault”. The only element that matters is damage. 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—let alone proof of legal causation—this problem can increasingly be mitigated through technology. As Space Situational Awareness (SSA) improves through better ground- and space-based sensors, as well as our increased knowledge of orbital dynamics, causation may be easier to demonstrate. Yet the concept of ‘fault’ presents something of a legal black hole.

The key element for an internationally wrongful act is a breach of an international obligation that is attributable to a state.

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. It is important to note, however, that 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. Indeed, as James Crawford wrote, “he sole example unanimously accepted as creating a liability framework for an act that is completely lawful under international law is contained in the 1972 Liability Convention.”<4> If the fault is not a breach of an international obligation, then what is it? The answer is complicated. Fortunately, it has been described through the legal scholarship of Joel Dennerley.<5> ‘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.”<6> But how can we understand what those best efforts at preventative measures should be? For that answer, we can look to norms of behaviour and standards of conduct—namely soft law instruments.<7>

 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”. The questions that then arise are: what are “preventative measures”, and whether a state should have known that their legitimate activity would cause harm to another state?

‘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.

To answer these questions, one would look to see what other states do, what norms have emerged and are emerging, and what standards of care states take to minimise the likelihood of harm. 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).<9> 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.

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.

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.
<1> “Safety” refers to freedom from accidents, such as collisions with debris, where no intent exists. “Security” refers to freedom from intentional acts, such as attacks. <2> Submission by India to the UN Secretary General’s request for input regarding Resolution 75/36: Reducing space threats through norms, rules and principles of responsible behaviors. <3> Paul S. Dempsey, et al., eds, Space Law (Primary documents) Canada Claim Submitted to Russia, Doc. No. 14B2 (3rd ed, 2018). <4> James Crawford, Brownlie’s Principles of Public International Law, 8th Edition (Oxford: Oxford University Press, 2012) at 561. <5> Joel A. Dennerley, “State Liability for Space Object Collision: The Proper Interpretation for ‘Fault’ for the Purposes of International Space Law” (2018) 29(1) EJIL 281 <6> Id. at 294. <7> Id. at 299-300. <8> Report of the Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities, UN General Assembly A/68/189* (29 July 2013). <9> Id. at para. 45. <10> France applauds the United States’ commitment to not conduct any destructive, direct-ascent anti-satellite (ASAT) missile testing (21 Apr. 2022) statesstatesstates <11> See SWF Infographic: ASAT Weapons  - Threatening the Sustainability of Space Activities (May 2022)
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Charles Stotler

Charles Stotler

Charles Stotler is Co-Director of the LL.M. Program in Air and Space Law and Research Counsel to the Center for Air and Space Law. He ...

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Daniel Porras

Daniel Porras

Daniel Porras is a Non-Resident Fellow at the UN Institute for Disarmament Research where he focuses on space security and global governance. He was the ...

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