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2010

Too-Close Encounters of the Third Party Kind: Will the Liability

Convention Stand the Test of the Cosmos 2251-Iridium 33
Collision?
Frans G. von der Dunk
University of Nebraska - Lincoln, [email protected]

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von der Dunk, Frans G., "Too-Close Encounters of the Third Party Kind: Will the Liability Convention Stand
the Test of the Cosmos 2251-Iridium 33 Collision?" (2010). Space, Cyber, and Telecommunications Law
Program Faculty Publications. 28.
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 Published in the Proceedings of the International Institute of Space Law (2009): 199-209.
Copyright 2010, Frans von der Dunk. Used by permission.
IAC-09.E8.3.1

TOO-CLOSE ENCOUNTERS OF THE THIRD-PARTY KIND:

WILL THE LIABILITY CONVENTION STAND THE TEST OF THE COSMOS 2251-
IRIDIUM 33 COLLISION?
Frans G. von der Dunk
University of Nebraska, College of Law, Space and Telecommunications Law Program
[email protected]

Abstract space law regime may need elabor~tion

alld refinement to deal with such
Cynics would say: space lawyers nlust incidents in an optimal fashion.
have been waiting for this for decades,
and now will of course iInmediately
call for additional regulation. But 1. The facts of the collision
indeed, the recent collision between
the Cosmos 2251 and the Iridium 33 On 10 February 2009 the Cosnlos 2251
satellite, the first time since the and Iridium 33 satellites collided at an
Cosmos 954 disintegrated over Canada altitude of some 785 kilometres 'above'
that the Liability Convention stands a Northern Siberia, presumably with a
chance of officially being invoked, relative velocity of at least several
raises a number of issues regarding the hundreds of miles per hour,
applicability of that Convention, and iInmediately transfomling at least one
tIle level of precision with whicll it can of the Iridium's mobile telephony
be applied. nodes as well as all of the Russian
The present paper undertakes a critical satellite into a debris cloud likely to
analysis of some of these issues. remain in orbit for at least decades. I
Notably, this concerns the involvement Iridium 33 was a comnlercial telecom
of a cOInmercial satellite run by a satellite owned by a US private
private .operator in the collision (the company, even if de.facto its operations
Liability Convention providing for a were sustained by the US military as an
very nluch state-oriented liability anchor custonler. Cosmos 2251 was a
regime), the issue of 'fault' as Russian military satellite also used for
detcnninative of the level of liability of telecommunications.
the two principal states involved in the Cosmos 2251 had been launched in
collision, alld the concept of 'space June 1993 from Plesetsk in Russia, by
debris' - as Cosnlos 2251 was the Russian Space Agency on top of a
apparently non-operational and out of Proton vehicle, and registered by means
control for more than thirteen years - of a note verbale with the United
2
and what to do with it legally, in tenns Nations in June 1994. The satellite,
of liability as well as otherwise. however, had become defunct and -
In view of the gradually growing presumably - completely out of control
3
population of alIter space with man- during 1995. Iridium 33 had been
made artefacts the Cosmos 2251- launched together with six other
Iridium 33 unfortunately but very Iridiunl satellites in September 1997 on
likely will not be the last too-close a Proton launch vehicle froIn
encounter of this third-party kind. And Bajkonour, the Russia-nln spaceport in
cynics or not, lawyers will have to Kazakhstan, of which Russia informed
4
address the extent to which the CUlTent the United Nations in March 1998.
Copyright©2009 by Frans G. von der Dunk. Published by the American Institute of
Aeronautics and Astronautics, Inc., with permission.
Copyright © 2010 by F.G. Von der Dunk. Published by the American Institute of Aeronautics and Astronautics, Inc., with perrriission.

199
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Copyright 2010, Frans von der Dunk. Used by permission.

2. TIle collision and the Liability dispute settlell1cnt procedure t]lat that
Convention provided for in tIle COllventioll.
The GIlly case \vhere., so far, the
There should be - and indeed is ~ little Ljability Convention has been formally
dOllbt that liability issues arising from applied, even if only explicitly referred
the collision would first and foremost to in the claimant's statementl()~ the
trigger the applicability of the 1972 disintegration of the Soviet Cosmos
-L.iability Conventions. The collision 954 satellite over Canada in 1978, inter
concerns two space objects involving at alia illustrates this very point. In the
least t\VO diflerent l1ations, the United final document settling the dispute it
States and the Russian Federation, and was agreed by the Soviet Union to pay
~ as will be seen - both the question of an amount of C~$ 3~OOO,OOO ex gratitI --
liability as between the two respective and the final document itself did not
operators/owners, a11d the question of Inention the I~iability Convention. 11
liability towards allY potential further It should be pointed out that in the
\lictims., be they in outer space., in air present case the Liability Convention
space or on earth, are principally to be has not (yet) been invoked by either
6
regulated by the Liability Convention. party (neither has any other potentially
Even as the Liability Convention's liability dispute settlement regill1e been
application hinges on the damage being so invoked), but once it \vould be, such
caused by a space object, whicll in turn invocation would ill11nediately be seen
is generally defined as an object not to lead to easy and autonlatic
intended to be lallllched into outer solutions and results. There are (at
space, ill view of the altitude of the least) three interrelated aspects
collision there can be no doubt that it complicating any such application.,
took place in outer space making the ~lllich \vill be discussed in the
two satellites space objects for the following three sections.
7
present purpose.
Still, it should be noted that as SUCll the
applicability of other legal regilnes for 3. The involvement of a COilllTIercial
dealing with liability claims is not to be satellite
fundatnentally excluded. The Liability
Conventioll itself already expressly Firstly, a closer look at the collision and
declares that its invocation would not possible application of the Liability
stand in the way of any clailTI regarding Convention briIlgs the issue of the
the sanlC event being pursued "in the existing lack of clarity of the proper
courts or administrative tribunals or place of private entities in the
agencies of a launching State'~. R international space law liability regin1c
F'urthennorc, prior to triggerillg the back_ on the table - the operator of the
application of the parts of the Liability Iridium 33 satellite., of course, \vas
Convention providing for a dispute IridiulTI, a private US company_
settlement procedure, the paliies to a The issue is 110t so lTIuch that lridillnl
dispute on liability for damage caused itself, in case it would consider doing
by a space object are supposed to find a so., COllld not invToke the Liability
sol-ution through 'diplolnatic COllvelltion. This would be Ulldisputed
9
negotiations - which nlay well include as the Convention unequivocally only
tIle option of using other liability rules allows states to assert claillls under it. 12
or principles than those provided by the In this case, therefore, IridiulTI'I being a
Liability COllvention, and/or another "juridical person" of the United States,

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might try to convince the US the activities of Iridium to those of the

govenlment to assert a claim on its United States as a sovereign party to
behalf. 13 the Liability Convention could be
The problenls arise essentially on the derived from Article VI - which makes
other side of the fence: if the Russian a ~. relevant state internationally
Federation would feel like establishing responsible as much for its own
a claim under the Liability Convention, activities in outer space as for those of
could it do so against the United non-governmental entities - also this
States? The Liability Convention argument is a matter of interpretation
clearly establishes "the launching deviating from the literal text of the
State" to be the liable entity for Convention's clause.] 6
damage caused by a space object for Neither does state practice help much,
which it qualifies as such a "launching as various states have detennined the
State", but only lists the four criteria scope of their national authorisation
for qualifying as SUCll by reference to regimes, supposed to take care of
"a State" - "A State which launches or domestic consequences of international
procures the launching of a space liability claims being paid out of state's
object [or] A State from whose treasuries, quite differently. Some states
territory or facility a space object is require entities with their nationality to
launched". 14 obtain a license for undertaking space
Does that make the United States the activities, others focus on other criteria
"launching State" of the Iridium 33 for such requirements, for example
satellite? As stated, the launch of that referring to the territory from which
satellite was undertaken by the Russian relevant activities are conducted. 17
Space Agency on a Proton vehicle, In the case of the United States,
procured by Iridium itself (which is not notably, the Commercial Space Launch
'the United States'), and took place Act (which takes care inter alia of
from Bajkonour, which is in international liability) in its present
Kazakhstan. The only legal link iteration does require a license with
between the United States as a state and attendant obligations only for those
Iridium as a company having procured intending "to launch a launch vehicle
the launch of a satellite therefore is the or to operate a launch site ( ... ) in the
latter's US nationality but United States", as well as any "citizen
'nationality' of an operator is not as of the United States ( ... ) [wishing] to
such referred to in the context of the launch a launch vehicle or to operate a
definition of the "launching State" .15 launch site (... ) outsjde the United
On the other hand, various scholars States" - not, for example, to SOlneone
have argued that the link of nationality only operating the satellite launched
Is
would somehow make the United and/or having ordered such launch. In
States the liable entity in a case like the tum, the US Comm'unications Act,
present one, either as the "state which which deals with the licensing of
launches" (which thus is effectively satellite operators, does not require any
interpreted to read 'a state which itself coverage of intenlational liability
launches or whose entities launch') the claims under the Liability Convention
relevant space object, or as the 'state that the United States might be faced
procuring the launch' somehow as if by with - and moreover applies its
proxy through such nationality of the licensing obligation only to those
actual entity procuril1g it. While a undertaking their satellite operations
.
fjrom US terrItory.
19
further argument for legally equating

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Consequently, in the (so far territory and facilities l'vould 1110ke .for
hypothetical) case of .Russia wishing to non-applicability' (~f' the Liability'
pursue a liability clailTI under the Convention to the collision at issue.
Liability Convention, this might serve This, it should be stressed, was tl1e
as a clinching argunlent for the United consequence of the choice of the
States to deny any qualification as a private US cOll1pany cOllcemed
~'laullching State" with respect to without further (fannal) interference
23
Iridium 33. by th.c US authorities - leading to the
This is further reillfore-ed by the fact SOl11cwhat ironic result that Russia, as
that the launch of the satellite was not successor to a Soviet Union which had
registered \vith the United Nations by been so vehclnently against granting
the ·United States, again providing clear private enterprise any legal personality
evidence that the Ullited States does not under thc space treaties, would now be
consider itself a 'launching state,20 fundalnentally unable to recover any
(whereas Russia merely lnentioned it in daillages under the Liability
the note verbale, in contrast to its also Convention as a consequence of the
providing for proper registration of Soviet Unjon's Sllccess in tllis
j4
some other spacc objects). respect ... ~
More problematically still, the laLlnch Secondly, even if Iridiu111 would have
[rOlTI Bajkonour Inakes both chosen to have its satellite launched,
Kazakhstan (as the state whose for exanlple., fro III KOllrou by
territory was used for the launch) and Arianespace, clainls under the Liability
Russia (""hose launch facilities were so Convention should have been
used) into launching states for the addressed towards France and not the
21
lridiunl 33. Even if the United States United States., as an argumcllt that the
would be considered a launching state, United States would be a launching
a clainl between two launchillg states state merely on account of Iridium's
would be thus at stake! nationality, gi,ren the lack of clarity on
The Liability Conventioll, essentially the illtemational level and tIle
dealing wit]1 third-party liability is - to interpretation of the United States as
say the least - not geared to such elnanating from its national acts, meets
scenarios. It deals \vith joint launching with considerable probably
state-scenarios only to the extent that insurmountable - problems.
joint liability towards third parties is
concenled ~. . where it provides: "A
launching State which has paid 4. TIle issue of 'fault'
cOlTIpensation for danlage shall have
the right to present a claim for The difficulties with applying tilC
indemnification to other participants in Liability Convention discussed above
th.c joint lallnching. The participants in left asidc, it would be clear that any
a jOillt launching may concillde liability issues under the Liability
agreenlents regarding the apportioning COllvention would be a ll1atter for
alnong themselves of the financial Article III, as concerning "dalnage
obligation in respect of which they are being caused [by a space object]
jointly and severally liable.,,22 . ~ elsewhere than on the surface of the
In sum: in the end the qualification of Earth to a[nother] space obj ect". In
Russia as a launclling state also of those cases liability w'ould be
Iridiunl 33 to use a non-US launcll apportioned according to fault.
provider laullching from nOll-US

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PriJl1a .facie, this seems to be a very between at least two options of

sensible and logical approach. Space "conduct", w11ere that person whether
objects are operated consciously and by "intention' or 'negligence' has
knowingly, and if one of theln leaves chosen an option (that is by flawed
nominal or or "jttdgmcnt") leadl11g to the hann
othcnvise starts to behave and move concerned'! where choosing another
it to illto option would not have led to
another, the operator of the [ortner harnl.
would be held liable on the basis of Applying this gClleric definition of
for the by the 'fault' to case at hand, however,
lattcr., whereas the operator of the latter would lead to the cOllnter-intuitivc
would in the of fault not be conclusion that, if entity, Iridium
liable for an~y damage susta1tled by the would be the liable one. As was
[oriller as a result of the collision" continned by Iridiunl spokesperson
"Fault' thus, presumably of its Elizabeth Mailander, company
seelningly obvious clarity, was not indeed could have moved the satellite
defined any further yet, first out of the way if a
international satelllte collislon as per warning. By contrast., ever sil1ce
IridiulTI 33 versus Cosmos 2251 raises (~oslnos 2251 had run out of control
questions in this Prin1G SaIne years there was
facie., to be sure, as varlOUS nothing the Russians COllld have done
COll1ll1entators already pointed to 11lake 1 a collision
out, such an analysis \vould seem to with Iridium
point at liability on the Russian side, as At the saIne tinle: could Russia really
it was with doubt the Cosmos hold the United or the
29
2251 that, having enjoyed a complete company conccmed liable for
of control from ground, 'da111age' done to a lifeless piece
strayed [raIn its original nominal orbit metal in outer space the logical
so as to cross the path of the fll1ly conclusion of the above reasoning?
functioning Iridium 33. While it might still serve SOlne
However: 'fault' has been defined as: practical purposes and/or represent
'" 1" error or or SOlne real to the OWller~ in
of conduct; any deviation fronl absence of applicability of any concepts
prudcl1ce or duty resulting fronl suel1 as 'abandonlllent' and 'salvage' in
inattention, bad outer law generally speaking it is
faith, or Inismanagement. ( ... ) 2. The still for the operator to make a
intcn 1i ona 1 or to detennination of
maintain sonle standard of conduct In order to circum\'ent the abo've first-
when that failure results ill hann to lc\rcl conclusion as leading "'to a resll1t
_.. . . ,"' . . . . . _.. person. 'Fault liability' then which is manifestly absurd or
is ""liability based on SOl1le degree of llnreasonable,,30 one \vould have to
, alternatively "a nlove to a analysis.
tYl1c of liability in which the plaintiff preSul11ption of a Cll0icc of action on
must prove that the defendant's both sides does not only preSUlne actual
was either or capability to manoeuvre, but
intentional" and as such the opposite of knowledge of a need to do 80'\ in other
strict liabi lity 2? words: a sound' which to
In other ,vords: a 'fault' preSllmes a make a "judgemcllt" in the sense of
choice for the person at faldt, a choice

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Copyright 2010, Frans von der Dunk. Used by permission.

Black's Law Dictionary's definitiol1 as and would be able to replace the 33 on

to appropriate course of __ "'.,. . ., . . . . short ~ .L..L ....... .... •

If the Russia11 authorities would have At the same time all parties hedged
had knowledge of at least a substantial their bets, for one good reason: with
a collision, they might perhaps the hundreds of of debris
not have been able to Inove Cosnlos (counting only the traceable ones) and
lout of the but \\lould in view of their lifetime there is a
certainly have been able to infonn from-theoretical possibility for decades
Iridiunl that a mal10euvre might be into the future that third parties' space
A failure to then do so objects be damaged. This would
would ccrtaill1y establish a large bring i11to play Article IV of the
measure of fault on their as Liability Convention, which states
can be glanced, however, the Russian relevant part: "In the event of dalnage
authorities ~o far have denied any being caused elsewhere than on the
knowledg(~ potential for a surface Earth to a space
collision. of one launching State or to persons or
the of property on board such a
(dis)proof shifts again to the US side. by a space object of another launching
Not only is the US space surveillance State, and of damage thereby being
network generally considered to be the caused to a third State or to its natural
most advanced and sophisticated or juridical persons, the first two States
according to a shall be jointly and liable to
article aerospace analyst T.S. Kelso the third State, to tIle extent illdicated
found that the Pentagoll's public data by the following: (... ) (b) If the
showed that the two satellites would dalnage been to a space
have missed each other by a mere 584 object of the third State or to persons
Inetres whilst error ran or property on board
into several kilometres. Also lTIoving elsewhere than on the surface of the
to this second level of analysis, Ea11h, their liability to the third . ) late
still seell1S to lead to the shall on the oj'
unsatisfactory result of making one the ./irst fvvo 5"ftates or on the .fault qf'
of perfectly wholn either
satellite in its nOlninal orbit liable for responsible. Note, that if for
dalnage caused to another satellite, example - a French satellite would be
which had stopped having apparent dalnaged by a piece debris of
useful hlnction many years earlier and Iridillm-Cosmos collision, it vvould not
left as a Inatter the
conseqllencc long since. actually be f'r01l1 the one or fron1 the
One lnight of course argue that all this other; what matters is solely which of
at least for the tilne mere the two was at fault the primary
theory, since both parties have desisted collision.
any formal and are actually Mutatis saIne would
looking for a de-escalation of any apply in case of third-party dalnage on
32
threatening dispute. Rllssia does not earth, for which as SUCll absolute
wish to pursue a somewhat p~rverse liability would apply, but the issue
claim for dalnage to a useless piece of fault would deterrnine the distribution
junk, whilst has J.J."'-H~f
"""'-JJ.J.J."...........to third . . . n-r..- ..
.... J......,'J.J. r'loC'

announced it had a spare ready anyway amongst Rllssia and the United
34
States.

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In sum: the absence of a clear, or at example, use the last bit of on-board
least \vorkable definition of 'fault' that fuel to relegate tIle satellite to a
takes into C011sideration the specifics of j-un.kyard orbit or to l1ave it de-orbited.
space activities and satellites, such as Article IX ~f the Outer Space Treaty~
the virtllal absence of possibilities of the single relevant clause in this
OIl-site investigatiollS looking for the context (al1d of course ill force for
'real" causes of the accident, ITIig}lt still Russia in 1993 al1d 1995) lTIerely
tum Ollt to present a major problem if required states to "conduct ex.ploration
sonlcwhcre in the future debris of them so as to avoid their harmful
traceable to the Cosnl0s 225] -Iridiunl contalllination"~ which is at best an
33 collision causes damage to a third obligatioll of effort rather tl1a11 an
state's satellite. obligation of result, of t1J~ing in good
faith rather then being obliged to avoid
any harmful contan1ination.
5. The issue of 'sQace debris' Only ill recent years 11as tl1is
fundamental lack of legal limitations to
A final important elel11ent in the the 'freedom to create space debris'
discussion on \vhom to blall1c prilllarily started to be curbed - thanks, in first
for the collision, not discussed so far, instance, to the Inter-Agency Space
concerned the element of "deviation Debris (~oordination Committee
from prudence or duty" or "failure to (lADe) and th.e guidelines it had
Inail1tain some stalldard of COl1duct", in drafted by Scptenlbcr 2007. 35 Though
the ternlS of Black's Law Dictiol1ary. still in voluntary' fashion, the
Sonlc comnlcntators have SOllght to guidelines on debris mitigation
circumvent the countcr- intuitive result included strong recomnlendations to
of an application of the Liability move satellites nearing their elld of life
Convention to the letter by seeking the to junkyard orbits or to dc-orbit them;
fault of Russia in the lucre fact that it guidelil1es which are novy being
had 'allo\vcd' its satellite to run out of implemented as licensing requirements
control ill the first place, thus creating a for private operators ill some states as
piece of space debris and aln10st well as having been. lifted to a higher
'willingly' accepting the risk it nlight level of visibility, political and
later on cause SOlne damage. Indeed, ultinlately also legal relevance by
had Russia by doing so violated nlcans of a UN Resolutiol1. 36
applicable rules of international law, Whilst such developnlents are
the step to declaring it conseqllently obviollsly to be applauded., they
liable for the harmful consequences of equally Ob\T101ISly COnfirlTI that back in
its acts ~rould have been relatively 1993 or 1995 nothit1g of the so]1
sn1a11. existed - in other \vords, only with
However, even apart frolll the lack of great difficulty could Russia be held to
clarity abollt \vhcthcr the disablc111cnt ha\le fallen short of "deviation from
of tI1e (~oslnos 2251 back in [applicable] prudence or dllty'~ or
(presumably) 1995 was a sudden and "failure to maintain some [applicable]
unforeseen event or vvhether the standard of conduct".
operators had seen it COining, back in Even no\v, there is no apl"licable clear-
1995, let alone i11 1993 wIlen COSlll0S cut and conlprehensive legal obligation
2251 was launched., there was no such of the sort under illternational law.
thing as a "duty" or "standard of Once such an obligation \vould become
COllduct" requiring Russia to, for established beyond doubt - whether by

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international treaty or as a matter of international law-orie11ted liability

undisputed customary' international law regil11e back on the table.
the Liability COllvention could In Vie\\l of the absence so far of damage
considerably gain in effectiveness or caused to the 'real' third parties (that is
'Iloot_ .... applicability, since
... ..l'- ........ 'fault' beyond United Iridiunl
could be established by criteria that Russia), the Ljability Convention has
make sellse in the particular context of not been invoked yet~ but whether it
activities. would stand the test once it lrvou/cl be, is
In sum: the collision also confirlTIS that still a matter of grave doubt. 'The cow
is value further may 110t have left ban1, but it
'juridifying't obligations to lTIinimise sellses the opening and tilne may be
both tlle of space debris and rU11nlllg out to close the barn door.
its potentially hannful consequences~ if
only to allow the Liability (~onvention
to work more in context
of fault. Elldnotes

1. See "It Finally Happened .Two

6. Concluding remarks Satellites Collide!", Launcllspace Staff,
Special for SpaceDaily.colll, 11
Whilst the above analysis may not even February 2009. The Report refers to
taken on board all facts some 300 new detectable fragments;
or even facts which as such could not the US statement delivered at the 46th
be subject to cOITectiollS as a Session of tIle UNCOPUOS Scielltific
it and Technical Subconlmittee of
already shows that the very first February to some 700.
seemingly clean-cut case for applying
the Liability Convention does no . See of 13 June
appear so clean-cut anYIllorc. Further 1994, p. 2. Cosmos 2251 was
encounters of the third-party erroneously referred to as
kind will, unfortunately but inevitably, 2551 here.
becol11e lTIOre rather than likely,
and hence l11ake tIle question of . See statement, "Russial1 and
whether the Liability Convention stood satellites collide", BBC "News, 12
test at this rather relevant. February 2009, with AFP at
Especially where 'fault' COlnes into http://news.bbc.co.uk/2/hi/science/natu
in view of the specifics of space re/7885051.stln.
activities, the lack of any definitioll
takillg these into account and the lack 4. Sec ST/SG/S.ER ..E/332, of 19 MarcIl
binding to ] 998, p. 2.
measure 'fault' against~ the Liability
Convention certainly leaves much to be 5.Convention on International Liability
desired in tenllS of solving the problelTI, for Dall1age Caused by Space Objects
theoretical as it may SeelTI for tIle tilne (hereafter Liability Convention),
London/Moscow/Washington, done
The situation is further aggravated by March 1972, entered i11to force 1
the key involvement of a party SeptelTIber 1972; 961 UNTS 187; TIAS
on one side of tIle dispute bringing 7762; 2389; UKTS 1974
discussions on a lTIOre private

206
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16; Cmnd. 5068; ATS 1975 No.5; 10 14. Art. I(c), Liability Convention;
TLM (1971).

The Liability C~onvention~s 15. See ftlrther of this

applicatioll would be triggered by argument e.g. the author's Sovereignty
damage "caused by ( ... ) space versus Space - Public Law and Private
(cf. II, III; II Launch
deals witll dalnage caused in outer SingalJOre .Journal 0.1' International
itself and III with F't<:l1"'t'1f'lrro (2001),38-44.
caused in airspace or on the ground),
whereas clainls only involving 16. Cf. Art. 3], esp. sub (1), Vienna
and a on the
state essentially are exclllded frolll the Vienna, done 23 May 1969, entered into
of the application the force 27 1980; 1] 55 UNTS
Convention (cf. Art. VII(a»). 331; UKTS 1980 No. 58; Cmnd. 48] 8;
ATS J974 No.2; 8 ILM 679 (1969); on
7
for the discussion on the the interpretation of treaty '''''·0.
"".1LL'U ..

fundalnental relationship between

and object" I . Cf. the Private
extensively S. Gorove, Issues Enterprise and Public Interest in the
t

Pertaining to the Legal Definition 'Ezlro/Jean Spac'escape (1998), 130-1

Object", 2 on on Activities,
(Jnd l-)pace Journal (1995)~ ] 36-45. ]982: 963, ] 8 Noven1ber ] 982;
National of
x. Art XI(2), Liability COllvention. World, Vol. I (2001), at 398~ Space
La\\' Basic Legal Docunlcnts, E.II.I;
9
Artt XIV, Liability flir Luft- lInd
Convention. Weltraulnrecht (1987), at 1]; 134-7 011
the United Space
IO.See the Statement of Claim by 18 July 1986, 1986 Chapter 38;
Cariada~ Space La"v Basic Legal National Space Legislation of the
: further B.A. World, Vol. 1 (200 1)~ at
Hurwitz"l Reflections on the Cosmos Law-Basic Legal Documents,E.I: 36
Incident, the Zeitschrifl Luft- und Weltraunrrccht
Thir(v-Seco/1c{ Colloqlfiunl on the La~v (1987), at 12; 142-4 on Russia's Law of
~f'Outer Space (1990),350-3. the Russian Federation 011 Space
Activities, 5663-1, August
11
See Protocol Between the 1993, effective 6 October 1993:
Goveffil11cnt C~anada the National of
Government of the Union of Soviet World, Vol. T (2001), at 101; and 149-
Socialist Republics of 2 April 1981; 51 on South Africa's Space Affairs
Law Legal Doculnents, Act, 6 1993, assel1tcd to on
A.IX.2.2. 23 JtUle 1993, No. 84 of 1993; Statutes
the Republic of South Africa Trade
12. See Art. VIII, Liability Convelltion. and Industry, Issue No. 27, 21-44;
Natiollal Space Legislation of the
VIII(l), Liability World, Vol. I (2001), at 413.

207
 Published in the Proceedings of the International Institute of Space Law (2009): 199-209.
Copyright 2010, Frans von der Dunk. Used by permission.

1~
. Sec. 70104(a)(I) & (2), C0111lnercial touching upon the definition as such of
Space Transportation - C~Ol1llnercial either states as a launching state or
Space Launch Activities, 49 U.S.C~. even upon the obligation of either state
7010 I (1994); elnphasis added. Cf. to answer relevant claims under the
also sub (3) & (4). Liability Convention.

19
See already Sec. 301, 22.Art. V(2), Liability Convention; cf.
Communicatiolls Act, 19 June 1934; 47 also Art. V( 1), providing that "a State
U.S.C. 151 (1988); 48 Stat. 1064; from whose territory or facility a space
rcquiring a license for anyone to "use or object is launched shall be regarded as
operate any apparatus for the a participant in a joint launching."
translnission of (... ) communications or
signals by radio" from the territory or 23. The main exception here might well
quasi-territory of tIle United States. have been the applicatiol1 of US export
Though the Comnlunications Act has regulations, notably the infamous
beell thoroughly anlcndcd ovcr tIle ITAR's (International Trade in Anns
years, this clause has relnained Regulations) under the Arll1s Export
fundamentally unchanged. C~ontrol Act of 1976, 22 U.S.(~. 2751;
al1d the United States MUllitions List
20 Also for application of the (USML), 22 C.F.R. 121, last revised 1
Registration Convention (Convention April 2008; for the purpose of ensuring
on Registration of Objects Launched that the launch of the satellite outside
into Outer Space (hereafter Registration the US docs not lead to highly-
Convention), New Yark, done 14 sensitive dual-use know-how falling
January 1975, entered into forcc 15 into the hands of those representing a
September 1976; 1023 UNTS 15; TIAS security threat to the United States.
8480; 28 UST 695; UKTS 1978 No. 70; However, in view of the complexity of
Cmnd. 6256; ATS 1986 No.5; 14 ILM this issue as well its non-relevance for
43 (1975)) the exact same notion of the liability and launching state issues,
'launching state' triggcrs the relevant this will not be discussed preselltly.
obligations; cf. Artt. I(a), II, IV.
24. At least, this is the situation under
21. The two states have conclllded a international law; the scenario whereby
bilateral agreelnent by llleans of which Russia could apply donlestic law to
Russia agrees to reimburse Kazakhstan Iridium's possible liability as a
for any international clailTI addresscd consequence of its satellitc being
to the latter as a conscquencc of a launched from a Russian launch
laul1ch from Bajkonour; see Treaty facility - and thus supposedly having
bctween the Govenl1nent of Russia alld acquired the Rllssian license
the G.overnment of the Republic of inandatory for those activities; cf. Art.
Kazakhstan on the Leasing of the 9(2), Law of the Russian Federation on
Baikonour-ColTIplex, of 10 Decelllber Space Activities - is not further
1994; also M. Hoskova, The 1994 investigated here.
Baikonour Agreements in Operation,
Proceedings 0.[ the ForfJJ-Second 25 Black's LalV D;ctionaly (8 th
C-lolloquium on the La11' o.f'Outer Space cd.)(2004), 641; elllphasis added.
(2000), 265-8. Of coursc, this is only
an inter se arrangelnent, not capable of

208
 Published in the Proceedings of the International Institute of Space Law (2009): 199-209.
Copyright 2010, Frans von der Dunk. Used by permission.

26 Black'L't' Latv Dictionar.J" (8 th 35

lADe Space Debris Mitigation
ed.)(2004), 933. Guidelines, IADC-02-0 1, Revision 1,
Septenlber 2007.
27
The O.~ford ComJ)anion to
~4mericanLall' (2002), 297; emphasis 36.Space Debris Mitigation Gliidelincs
added. of the United Nations Coml11ittee on
the Peaceful Uses of Outer Space
'E
~. In an A ' d P ress report
Ssoclate (A/62/20) endorsed by General
(Borenstein, Birch), 13 February 2009. Assembly Resolution 62/217, of 21
December 2007; A/RES/62/217.
19
.... It should be noted that Art. III,
Liability Convention, in this context
refers to "its falllt or the fault of
.persons for whom it is responsible",
which might nlake the United States
liable once one would accept that
private procurement leads to
qualification of the state \vhose
C0111pany did so procure the launch as a
launching state, as discussedbcforc.

30. Under the Vienna Convention on

the Law of Treaties, Art. 32 allows for
ll1eans of interpretation suppleJnentary
to terms, object, purpose and context
of the treaty in case application of the
latter leads to "to a restilt which is
manifestly absurd or unreasonable'''.

31. See "Satellite crash prediction is

plagued with u'nccrtainty"', New
Scientist, 13 Febnlary 2009, at
http://\VW\V.newscie11tist.cOln/aliicle/do
16592 -sate Iii tc-crash-predi ction-is-
plagued-wi th-uncertainty.html.

32. Formally, of course, the Liability

Convention would allow either party
until 10 February 2010, a full year
after the col1isio11, to assert their clail11;
see Art. XCI).

33. Art. IV(1), Liability Convention;

el11phasis added.
34
Cf. Art. IV(2), Liability
Convention.

209