Space Law: When space junk returns to Earth

It has been reported[1] that several pieces of ‘space junk’ have been found in the NSW Snowy Mountains region, and it is speculated that the debris is from the SpaceX Dragon spacecraft.[2]  The discovery of the spacecraft components on private farming land highlights some important legal issues in the realm of space law.  Here, we focus on two issues:  ownership and liability.

 

Who owns the debris?

The basic principles of space law are contained within a series of international treaties agreed in the 1960s and 1970s.  The first of these was the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, known more commonly as the ‘Outer Space Treaty of 1967’.

 

Article VIII of the Outer Space Treaty states in very clear terms that being in space does not affect the ownership of an object – it remains the property of the person, entity or government who owned it at the time of the launch, subject to its ownership being transferred in the usual way that any item is transferred.

 

This principle was demonstrated in a very Australian way the last time major space debris was found in Australia.  That was in 1979 when the US space station Skylab returned to Earth and was strewn across the southern parts of Western Australia.  The US National Aeronautics and Space Administration (NASA) deployed personnel to Esperance Shire to assist locals in identifying pieces of the space station and scanning for radiation.  A tale of folklore has it that an official of the Shire served the NASA officials with a $400 fine for littering.  It was, of course, merely an example Australian larrikinism and was not to be taken seriously.

 

SpaceX has apparently not yet, at the time of writing, confirmed that it owns the debris, however space experts consider it likely.[3]  As to what happens to it, Article VIII of the Outer Space Treaty also provides an answer:  it is to be returned to the State of registry of the space object.  In this case, that would be the United States.  Souveniring is certainly not encouraged.

 

Who is liable for any damage?

In international law, liability is governed by the Convention on International Liability for Damage Caused by Space Objects, also known as the ‘Liability Convention of 1972’.  Article II of the Liability Convention says that the launching State is ‘absolutely liable’ for damage caused by a space object on the ground or to an aircraft in flight.[4]  This means that the launching State is liable for the full amount of the damage, even if it was not at fault.  Of course, this scheme was sensible when governments were the only entities launching objects into space.  In the 50 years since its introduction, it has been called upon only rarely.  The most notable situation in which it applied was the landing of Soviet satellite Cosmos 954, which crashed in Canada in 1978.  The matter was settled out of court, and it is believed that the USSR paid a sum of around US$3 million to Canada for the damage caused when nuclear radiation was released from the crashed satellite.

 

In modern times, with more and more commercial entities launching satellites, making questions of liability more complex.  Article VI of the Outer Space Treaty indicates that the launching State remains responsible for the activities of commercial and private entities, requiring the State to exercise ‘supervision and control’ over their activities.  For this reason, domestic law in the space-faring countries usually requires any space launch to be subject to a licence or permit.  In Australia, the Space (Launches and Returns) Act 2018 (Cth) establishes such a system for Australian companies and for anyone launching a space object from Australian territory.  The requirements include stringent insurance and financial requirements, including that the holder of the permit must have liability insurance of at least $100 million, or sufficient assets to pay a claim of that amount.[5]

 

Furthermore, with the increasing participation of private entities in space, it is becoming more likely that claims for damage will be heard in domestic courts, rather than in any international tribunal set up under the Liability Convention.  This makes the private entity directly liable to those who suffer damage caused by a space object, giving rise to the stringent insurance requirements discussed above.  However, private law does not have the same ‘absolute liability’ rule as applies to a launching State under international law – it will be necessary for a company being sued to be found to have been at fault (either negligently or intentionally) for the damage.  This is in contrast to the situation of damage by aircraft, in which the owner of the aircraft is liable without proof of negligence or intentional damage under s 73 of the Civil Liability Act 2002 (NSW).

 

 

For more information about space law and issues involving space debris, contact us.

 

 

Bradley Hayward

Principal

 

2 August 2022


[4] However, Article VII of the Liability Convention says that the liability of a launching State does not extend to its own nationals.

[5] Space (Launches and Returns) Act 2018 (Cth), s 48; Space (Launches and Returns) (Insurance) Rules 2019 (Cth) r 5.

 

Photo credit: SpaceX on Unsplash