When I saw the film Gravity recently, I was left with
more legal than plot questions; mainly, who, hypothetically, would be
responsible for the disaster that occurred?
For those of you who have not seen
the film, the significant plot points are as follows (spoiler alert): (1) multiple
United States astronauts are sent to space to work on the Hubble telescope; (2)
while working on the telescope, Russia destroys one of its orbiting satellites;
and (3) the debris of the destroyed satellite begin to wreak havoc on
satellites and space stations orbiting Earth: the debris destroys the international space station, the Chinese space
station, the Hubble telescope, and kills multiple people. With all of this destruction, the
question becomes: can the aggrieved
parties hold Russia responsible and, if so, how?
In reality, this is situation is not
new to Russia. In 1978, a Soviet Union
satellite, Cosmos 954, crashed onto Canadian soil. The satellite contained a nuclear power
source that caused over 14 million Canadian Dollars worth of damage. Canada sought half of the costs from the
Soviets pursuant to the Convention on International Liability for Damage Caused
by Space Objects.
While Russia and Canada eventually
settled, it was the first claim brought pursuant to the Liability Treaty. The Liability Treaty arose out of the Treaty
on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies. The Liability Treaty imposes absolute liability
upon States when they launch a space object and the object causes damage to the surface of the earth or to an aircraft in flight. In the event that a State’s space object
causes damage in space, the State is only liable if the damage is its fault or
the fault of someone the State is responsible for.
latter scenario describes the damage that Russia caused in Gravity. However, there has
never been a space-collision case litigated under the Liability Treaty. Moreover, there is no clear indication of how
to proceed with this type of claim. At a basic level, there is a practical
difficulty with even proving what State caused in-space collision damage. There is no internationally accepted system
for tracking space objects and even domestic systems lack the sophistication to
identify the source of debris with the reliability necessary to attribute fault. The identification problem results in most damaged
States never filing a claim.
the practical limitations, the Liability Convention does not define the term
fault nor does it prescribe a standard of care. There is no customary law existing for the
regulation of space debris. However, even if a “foreseeability” standard
is used to determine fault, practical problems arise. “[F]or almost all spacecraft, once the
satellite is placed in orbit, the launching State has neither the ability to
foresee a future collision nor the ability to make the substantial manoeuvre to
Moreover, it appears that “[t]he difficulties
associated with the identification of space debris and the practical problems
encountered in proving fault in many cases make recourse under the Liability
Convention largely futile.”
in the Gravity scenario, while a
claim can be made against Russia pursuant to the Liability Treaty, the question
of “how” one could succeed upon such a claim remains unanswered—perhaps the
sequel will delve into the ensuing litigation.
 Gravity (Warner Bros. Pictures 2013).
 Andre G. DeBusschere, Liability
for Damage Caused by Space Objects, 3 J.
Int'l L. & Prac. 97, 99 (1994).
 Id. See Convention on International Liability for Damage
Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 2392, 961 U.N.T.S. 187
[hereinafter, “Liability Treaty”].
 DeBusschere, supra note 3.
 Id.See Treaty on
Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967,18 U.S.T. 2410.
 Defined as: “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.” Liability Treaty, supra note 5, art. I.
 Id. art. II.
 Id. art. III.
 Mike Wall & Leonard
David, Legal Action Against China
Unlikely in Space Junk Crash with Russian Satellite, Space (March 12, 2013), available at http://www.space.com/20173-china-space-junk-crash-lawsuit.html; see also, Meghan
R. Plantz, Orbital Debris: Out of Space,
40 Ga. J. Int'l & Comp. L.
585, 606 (2012).
 James P. Lampertius, The Need for an Effective Liability Regime
for Damage Caused by Debris in Outer Space, 13 Mich. J. Int'l L. 447, 456 (1992).
 Plantz, supra note
11, at 605.
 Lampertius, supra note 12, at 459.
 Plantz, supra note 11, at 605.
 Lampertius, supra note 12, at 456.
 Id. at 458 (quoting Raymond T. Swenson, Pollution of the Extraterritorial Environment, 25 A.F.L. Rev. 70, 80 (1985)).
 Lampertius, supra note 12, at 455.
Posted by Joshua L. Lucas (Josh) on Tue. January 14, 2014 12:31 PM
Customary International Law