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October 22, 2015
Canada’s Need to Take Ownersh*t of its Role in Space Exploration
A short paper on international space law
A frozen turd ball was ejected from our orbiting space station and struck a foreign state’s spy satellite. The satellite was knocked out of orbit and crashed to Earth. The foreign state now demands reparations from us. This paper will survey the legal regime for the use of space and states’ obligations with respect to debris causing damage to other objects in space. Then, this paper will analyze the current situation to assess our options for response. This paper concludes that we should pay reparations to the foreign state and develop technologies to reduce our production of dangerous debris in space.
Given that humanity gained access to space relatively recently, and only a limited number of states actually participate in space exploration, international space law is still in its infancy. Although states have jurisdiction over the airspace immediately above their territory, outer space is understood as a ‘res communis’, meaning that none of it can form part of a state’s sovereign territory.[footnoteRef:1] The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies entered into force in 1967 and forms the basis of international space law.[footnoteRef:2] 103 states, including Canada, have ratified the treaty and another 25 states are signatories.[footnoteRef:3] Article III notes the parties’ desires to promote peace, security, cooperation and understanding with regards to the use and development of space. Article VIII specifies that states maintain jurisdiction over whatever objects or personnel they send into space. [1: Currie, John H. et al, International Law: Doctrine, Practice and Theory, 2nd ed (Toronto: Irwin Law, 2014) at 466. ] [2: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967) [Outer Space Treaty].] [3: Committee on the Peaceful Uses of Outer Space, Status and application of the five United Nations treaties on outer space, UNGAOR, 54th Sess, Supp No 5, UN Doc A/AC.105/C.2/2015/CRP.8, (2015) at 10 [United Nations treaties on outer space].]
While various other treaties exist to deal with particular aspects of international space law, this paper’s focus is states’ obligations with regards to debris causing damage to other objects in space. To clarify and expand this area of international space law, the Convention on International Liability for Damage Caused by Space Objects entered into force in 1972.[footnoteRef:4] Currently, 92 states, including Canada, have ratified the treaty and another 21 states are signatories.[footnoteRef:5] The treaty allows for states to bring claims against other states to recover damages in the event that a state’s property from outer space causes damage to another state’s property – in outer space or on Earth. In 1978, Canada filed a claim against the USSR under this treaty after a Soviet satellite was damaged upon re-entry to Earth’s atmosphere and radioactive debris was scattered across parts of northern Canada. The USSR paid Canada $3,000,000 as compensation.[footnoteRef:6] [4: Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 188 (entered into force 1 September 1972) [Space Liability Convention].] [5: United Nations treaties on outer space, supra note 3.] [6: Currie, supra note 1 at 470.]
The Report of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space from 1999 laid out an action plan developed by the UN to facilitate the creation of an international space regime.[footnoteRef:7] Though no such regime has been established yet, the document is a reflection of the international community’s intentions and attitudes towards space. The plan focuses on establishing coordinated efforts and strategies, promoting safety measures and procedures, and recognizing the ways present-day uses of space will affect the international community and future generations. [7: The Space Millennium: Vienna Declaration on Space and Human Development, Report of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space, UN Doc A/CONF.184/6 (18 October 1999) at 6-19 [Vienna Declaration on Space].]
As human activity in space has increased and our understanding of the dangers posed by accumulating space debris has deepened, various states have endorsed guidelines to minimize the problem. In 2008, the UN adopted the Space Debris Mitigation Guidelines, as set out in Report of the Committee on the Peaceful Uses of Outer Space.[footnoteRef:8] These guidelines encourage states to minimize their production of debris and to minimize the effects of debris on the space environment. As guidelines, they are not binding on states, but they are nevertheless to be taken seriously. It is also worth noting that many states have adopted similar guidelines domestically.[footnoteRef:9] [8: Space Debris Mitigation Guidelines, Report of the Committee on the Peaceful Uses of Outer Space, UNGAOR, 62nd Sess, Supp No 20, UN Doc A/62/20 (2007) at 48 [Space Debris Mitigation Guidelines].] [9: Currie, supra note 1 at 474.]
The Outer Space Treaty makes clear that states maintain jurisdiction over whatever objects or personnel they send into space. From this, it follows that states also maintain jurisdiction over whatever objects may separate or emanate from whatever they send into space. Essentially, states should be understood to maintain jurisdiction over whatever objects they are responsible for sending to, or making in, space. It is clear that Canada has jurisdiction over its orbiting space station and the personnel aboard the station. And indeed, Canada also has jurisdiction over the frozen turd balls that were produced aboard and ejected from the station.
The Space Liability Convention makes clear that states are liable for any injury they cause to other states as a by-product of their activities in space. Under this treaty, the foreign state can bring a claim against Canada to seek reparations for the damage done to its spy satellite. Especially since Canada has itself filed a claim and received compensation from the USSR under this treaty, it would be deeply hypocritical of us to resist the foreign state’s claim. To do so would not bode well for Canada’s reputation as a state which acts in good faith and honours its obligations under international law.
Even if the foreign state is not a party to the Space Liability Convention and thus cannot use this channel of recourse, it is still going to be in a strong position to make a claim against Canada. Firstly, the preponderance of international space law speaks to the importance of collaboration, sharing, and good faith in the use of space. Though states have yet to reach consensus about whether space development should aim to establish a common heritage for humankind or should allow for the commodification of space resources by particular states,[footnoteRef:10] it seems that a minimum level of cooperation and consideration for the safety and interests of others is unambiguously expected. The foreign state is well-positioned to argue that Canada’s practice of ejecting 10 kg frozen turd balls into space is reckless; that this poses unnecessary risks; that Canada should be held liable for the damages it has caused as a result of engaging in this practice. [10: Ibid at 469.]
Canada has jurisdiction over the ejected turd balls and is liable under the Space Liability Convention. It seems highly unlikely that Canada can avoid paying compensation to the foreign state whose spy satellite we damaged. Moreover, this practice runs contrary to the Space Debris Mitigation Guidelines. As such, Canada should endeavor to find alternate means of dealing with waste produced space aboard the space station.