Content uploaded by Steven Freeland
Author content
All content in this area was uploaded by Steven Freeland on Sep 09, 2016
Content may be subject to copyright.
*Professor of International Law, University of Western Sydney, Australia; Permanent Visiting Professor of
International Law, University of Copenhagen, Denmark; Director, International Institute of Space Law; Member of the
Space Law Committee, International Law Association; Member of Faculty, London Institute of Space Policy and Law.
**Commercial Satellite Lawyer, Sydney, Australia.
IAC-11.E7.4.5
Whose Mess is it Anyway? Regulating the Environmental Consequences of Commercial Launch
Activities
Steven Freeland* and Donna Lawler**
Abstract
The existing body of international space law does not provide a comprehensive legal framework for the
protection of the environment of space, nor does it specify rigorous environmental standards in relation to
the conduct of space activities. Moreover, even the rather general obligations relating to environmental
aspects of the exploration and use of outer space that are found in the United Nations Space Treaties are not
particularly appropriate to, or directed towards launch activities. Although the Outer Space Treaty provides
for ‘international law’ to apply to ‘activities in the exploration and use of outer space’, it is not entirely clear
how readily these principles can be applied to the unique characteristics of space activities. To further
complicate matters, many launches are now undertaken by non-governmental commercial entities, which are
not per se bound by the United Nations Space Treaties, but rather are subject to local laws and the
provisions negotiated in commercial launch service contracts.
This paper will consider both the public international law and private international law elements that may
be relevant to the environmental considerations associated with launching, and will offer some suggestions
as to how these should be strengthened, in terms of both treaty and national laws and also at the commercial
contract level.
_______________________________________________________________________________________
Introduction – the need for regulation to
protect the space environment
It is an unfortunate reality that virtually all aspects
of the use and exploration of outer space involve
elements that are inherently damaging to the space
environment. This has given rise to many
(potential) environmental problems relating to
space activities, as well as the question of
whether, and how, such concerns can and should
be addressed within the corpus of the international
legal regulation of outer space. From even a
cursory reading of the basic instruments, it is clear
that the existing body of international space law
does not provide a comprehensive legal
framework for the protection of the environment
of space; nor does it specify rigorous
environmental standards in relation to the conduct
of space activities as they may affect the Earth.
Having said this, it is relevant to note that the
United Nations Space Treaties were largely
concluded before what became known as the
„environmental movement‟ had taken firm hold.
Indeed, the 1972 Stockholm Declaration1 is
generally regarded as the first significant
statement of fundamental international principles
relating to the protection of the environment.2 Yet,
already by the time that the Stockholm
Declaration was concluded, the most important
fundamental principles relating to the use and
exploration of outer space had been agreed and
codified in the Outer Space Treaty3 and the
1 Declaration of the United Nations Conference on the
Human Environment (16 June 1972) UN Doc
A/CONF.48/14/Rev.1 (1972 Stockholm Declaration).
2 Rymn James Parsons, „The Fight to Save the Planet:
U.S. Armed Forces, “Greenkeeping,” and Enforcement
of the Law Pertaining to Environmental Protection
During Armed Conflict‟ (1998) 10 Georgetown
International Environmental Law Review 441, 455.
3 1967 Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space,
including the Moon and other Celestial Bodies, 610
U.N.T.S. 205 (Outer Space Treaty).
2
Liability Convention.4 These instruments provided
little of substance in terms of the protection of the
(space) environment because, despite the
publically expressed intentions of the space-faring
States to engage in space in a way that would
provide for planetary protection, there was no
great concern about the environment of space, and
certainly no appetite to be bound by rigorous
environmental protection obligations that might
be perceived as impeding the development of the
many space activities that were emerging at the
time.
However, a number of areas relevant to
environmental issues have been considered in the
fundamental instruments: in terms of the United
Nations Space Treaties, the focus has been
directed primarily towards the issue of back and
forward contamination5 and environmental
concerns associated with the exploitation of the
natural resources of the moon and other celestial
bodies.6
In addition, there have been a number of so-called
„soft law‟ instruments7 directed inter alia towards
the use of nuclear power sources in outer space8
4 1972 Convention on International Liability for
Damage Caused by Space Objects, 961 U.N.T.S. 187
(Liability Convention).
5 See Article IX of the Outer Space Treaty, which
includes the obligation to conduct exploration of outer
space, including the moon and other celestial bodies
„so as to avoid their harmful contamination and also
adverse changes in the environment of the Earth
resulting from the introduction of extraterrestrial
matter…‟ For a detailed discussion of this provision,
see Sergio Marchisio, „Article IX‟, in Stephan Hobe,
Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds),
Cologne Commentary on Space Law, Volume I – Outer
Space Treaty (2009), 169-182.
6 See inter alia Article 7 of the 1979 Agreement
Governing the Activities of States on the Moon and
other Celestial Bodies, 1363 U.N.T.S 3 (Moon
Agreement).
7 For a discussion on the use of „soft law‟ instruments
in relation to the use and exploration of outer space, see
Steven Freeland, „For Better or for Worse? The Use of
„Soft Law‟ within the International Legal Regulation of
Outer Space‟, forthcoming in (2011) Annals of Air and
Space Law.
8 See 1992 Principles Relevant to the Use of Nuclear
Power Sources in Outer Space, United Nations General
Assembly Resolution No 47/68, UN Doc No
A/RES/47/68 and United Nations Committee on the
and, in more recent times, the increasingly
pressing problem of space debris.9
In relation to the issue of space debris, this is a
major area for concern. For example, on 12 March
2009, the three astronauts aboard the International
Space Station (ISS), Americans Mike Fincke and
Sandra Magnus and Russian Yuri Lonchakov,
were forced to evacuate the main station and
remain in the ISS escape vehicle for 9 minutes,
while a piece of debris about 1 cm in length
passed by.10 Had the debris hit and pierced the
ISS, it is possible that a fatal loss of air pressure
could have ensued. More recently, the six man
crew on the ISS was again forced to take shelter in
two Soyuz craft on 28 June of this year, when
another piece of debris drifted past the Station.11
Only one month before the first ISS incident (10
February 2009), an operational American
commercial satellite (Iridium 33) and an inactive
Russian communications satellite (Kosmos 2251)
collided approximately 790 km above the earth,
resulting in the total destruction of both. This was
the first time that two intact satellites had collided
and the collision resulted in approximately 700
Peaceful Uses of Outer Space (UNCOPUOS) Scientific
and Technical Sub-Committee and International
Atomic Energy Agency (AIEA), Safety Framework for
Nuclear Power Source Applications in Outer Space
(2009) <http://www.fas.org/nuke/space/iaea-space.pd
f> (accessed 17 February 2011).
9 See, for example, United Nations General Assembly
Resolution 62/217 (22 December 2007), which (at
paragraph 26) endorsed The Space Debris Mitigation
Guidelines of the United Nations Committee on the
Peaceful Uses of Outer Space (A/62/20), (at para 27)
agreed that „the voluntary guidelines for the mitigation
of space debris reflect the existing practices as
developed by a number of national and international
organizations‟, and (at paragraph 28) considered it
„essential that Member States pay more attention to the
problem of collisions of space objects, including those
with nuclear power sources, with space debris, and
other aspects of space debris‟.
10 See, for example, Maggie McKee, „Debris threat
prompts space station crew to evacuate‟ New Scientist,
<http://www.newscientist.com/article/dn16755-debris-
threat-prompts-space-station-crew-to-evacuate.html>
(accessed 26 July 2011).
11 See „Space Debris forces ISS astronauts to evacuate
the station‟, <http://thewatchers.adorraeli.com/2011/
06/29/space-debris-forces-iss-astronauts-to-evacuate
the-station/> (accessed 26 July 2011).
3
additional pieces of hazardous debris being
created, with the potential to cause additional
decades-long pollution in space.
These recent high-profile events have highlighted
the increasing hazards posed by space debris,
particularly given that most such debris is,
according to scientific data, accumulated in low-
earth orbit, and thus poses a potential threat to
virtually all space activities. Yet, it is clear that
the existing legal principles are not adequate, even
for this issue of crucial importance. The fact that,
in 2007 and 2008 respectively, both China and the
United States did not feel constrained by existing
Space Law – in particular Article IX of the Outer
Space Treaty – or other principles of international
(environmental) law, when they proceeded to
deliberately destroy their own satellites in space
(thus causing additional space debris from the
resultant explosions) only serves to point to the
increasing urgency for the development of more
rigorous international legal principles protecting
the space environment.12
Incidents such as these demonstrate how
important it is that we are made aware of the
environmental dangers associated with space
activities, the implications of such dangers and the
range of possible solutions (to the extent that there
can be a „solution‟ to increasing environmental
degradation of outer space), or approaches to such
solutions, before we can embark on the
development of a comprehensive set of measures
that address the issue in the necessary detail.
Perhaps understandably in view of the type of
incidents referred to above, to the extent there
have been attempts (albeit inadequate) to regulate
the environmental consequences of space
activities, these have addressed the environment
of space and celestial bodies. Indeed, the need to
protect natural celestial environments was at least
publically expressed (if not translated into
rigorous legal regulation) as being „among the
12 For background to these two incidents, see Steven
Freeland, ‟The 2008 Russia / China Proposal for a
Treaty to Ban Weapons in Space: A Missed
Opportunity or an Opening Gambit?‟ (2008) 51
Proceedings of the Colloquium on the Law of Outer
Space, American Institute of Aeronautics and
Astronautics, 261-271.
earliest policies articulated at the dawn of the
space age‟.13
But what about protecting the Earth
environment?
The need to develop more rigorous legal
principles associated with space activities does
not, however, just end with the outer space
environment. There has been little attempt within
the corpus of space law to directly regulate the
environmental consequences of the launch phase
from Earth, which is, of course, an integral part of
the vast majority of space activities. Yet, it is self-
evident that the launch phase of any space activity
can be highly polluting, in terms of noise, the
disengagement of parts of the launch vehicle and,
in the case of some launch vehicles, by toxic
emissions. Among a number of serious cases,
there have, for example, been reports of, and
studies conducted about the serious adverse
environmental consequences (which have
allegedly also given rise to very significant health
problems) in the area around the Russian launch
facility at Baikonur, now located in Kazakhstan.14
This lack of regulation regarding the
environmental effects of launch activities
represents an omission that may potentially have
significant legal consequences. In the days when
the vast majority of launches were conducted by
States, concerns about environmental damage
arising from launch activities were not of major
import, either because the State would, of course,
not sue itself and would restrict the ability of its
nationals to bring action against it (if the launch
had taken place within its own territory), or the
situation was thought to be adequately addressed
by the provisions of the Liability Convention,15
13 L.I. Tennen, „Evolution of the planetary protection
policy: conflict of science and jurisprudence?‟ (2004)
24 Advances in Space Research 2354, 2354.
14 For a more detailed description of the environmental
concerns related to the Baikonur facility, see Lotta
Viikari, The Environmental Element in Space Law:
Assessing the Present and Charting the Future (2008),
29-31 and the corresponding footnotes.
15 Article II of the Liability Convention provides that:
„A launching State shall be absolutely liable to pay
compensation for damage caused by its space object on
the surface of the earth or to aircraft in flight‟.
„Damage‟ is defined in Article 1 (a) of the Liability
Convention as:
4
which contemplates the possibility of legal
proceedings between States. Of course, as is well
known, there have never been formal proceedings
instituted under the terms of the Liability
Convention.
Yet, the paradigm of space activities has changed
over the past decades. Due to the complex nature
of space activities and the unique nature of outer
space, there are now many stakeholders that are
involved. Although outer space was once the
realm of (a small number of) States, it is now
being utilised not only by many more countries
(the latest estimates are that approximately 50–60
States have some form of space capability), but
also by a variety of international
intergovernmental organisations, regional
organisations and, perhaps most significantly, by a
vast array of private enterprise organisations.
Each of these groups is motivated in their
particular space activities by factors that are not
necessarily compatible with the „protection‟ of the
environment – indeed they may perhaps be
incompatible with such concerns. At the very
least, it is still the case that environmental
concerns are not afforded a high priority in the
planning, design, and implementation of space
activities.
In addition, non-governmental entities that are
engaged in space (and launch) activities are not
bound by the United Nations Space Treaties, since
they lack the international legal personality to be
parties to such instruments and, in any event,
these Treaties only permit States to become
parties, although a number of them specifically
provide that particular provisions shall also be
deemed to apply to international
intergovernmental organisations in certain
circumstances.16 Although it was contemplated by
the drafters of the United Nations Space Law
Treaties that national space activities might also
be undertaken by non-governmental entities, the
„… 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‟.
16 See Rescue Agreement, article 6; Liability
Convention, articles XXII (1) and XXII (2);
Registration Agreement, articles VII (1) and VII (2);
Moon Agreement, article 16.
responsibility for such activities was imposed,
from an international law perspective, on States.
Article VI of the Outer Space Treaty imposes
„international responsibility‟ on States for
„national activities in outer space‟, undertaken
either by „governmental agencies or by non-
governmental entities’.17 However, it must be
noted that this responsibility is an international
obligation, governed directly by the general
principles of public international law, as well as
the specific terms of the United Nations Space
Treaties.
The Liability Convention does not, of course,
preclude the possibility of a non-governmental
entity (or indeed a State) pursuing a claim18 within
the national legal system of a launching State (as
defined in that instrument).19 However, in such a
situation, the ultimate legal responsibility will be
governed by the launching State‟s national legal
system, as well as the terms of the relevant
commercial launch services contract. The specific
outcomes under different jurisdictions will vary
from country to country,20 and it is not proposed
to deal with these in this paper. Rather, the focus
here is on the commercial legal structures around
launch services, and questions as to how liability
17 Emphasis added.
18 Article XI (2) of the Liability Convention. For a
detailed discussion of the Liability Convention, see
Steven Freeland, ‟There‟s a Satellite in My Backyard –
MIR and the Convention on International Liability for
Damage Caused by Space Objects‟ (2001) 24(2)
University of New South Wales Law Journal 462-484.
19 Article I (c) of the Liability Convention defines a
launching State as:
„(i) A State which launches or procures the launching
of a space object;
(ii) A State from whose territory or facility a space
object is launched‟.
20 The 2008 French Act relating to space activities (Bill
Nr. 2008-518 of June 3rd, 2008 relating to space
operations) is a recent example of national space
legislation that does seek to regulate the situation
where a space activity causes damage to the
environment. Article 1 (1) of that legislation defines
„damage‟ as including:
„… damage to the environment caused directly by a
space object as part of a space operation …‟
See also Bernhard Schmidt-Tedd and Isabelle Arnold,
„The French Act relating to space activities: From
international law idealism to national industrial
pragmatism‟ European Space Policy Institute (ESPI)
Perspectives No. 11, August 2008.
5
for the environmental consequences of launch
activities is likely to be shared between the
participants in launch activities.
In a Commercial Context, who Covers Third
Party Losses arising from a Launch Failure?
The prospect of a catastrophic launch failure
causing losses to third parties has, for many years,
been uppermost in the minds of national
legislators, commercial space lawyers and
insurers. National legislation typically stipulates
various conditions that are intended to limit the
possibility of losses at the launch phase – for
example, by providing for safety measures.21
Moreover, both international and national space
laws appear to be aimed at ensuring that innocent
third parties who suffer loss as a result of space
activities receive some form of compensation, at
least in theory.22
It has long been assumed that in such an event, the
launch provider, its insurers and its associated
national government(s)23 would be called upon to
cover any losses suffered by third parties. Satellite
owners who sign launch contracts rely on this
combination of protections to cover them against
liability, perhaps assuming that the tried and true
language that has existed in the industry for
decades, after countless reviews by insurers, could
not be wrong.
But is this assumption correct, particularly in the
case of environmental damage? Contracts,
insurance policies and legislation that have never
21 See, for example, the Australian Space Activities Act
1998, which provides for the appointment of a Launch
Safety Officer in relation to the operation of each
licensed launch facility established under the
legislation. The functions of the Launch Safety Officer
include inter alia:
‘to ensure that no person or property is endangered by
any launch conducted at the facility, until the space
object is safely in Earth orbit or beyond‟ (Section 51
(b)).
22 See, for example, preambular paragraph 4 of the
Liability Convention, which recognizes „the need … to
ensure, in particular, the prompt payment … of a full
and equitable measure of compensation to victims of
[damage] caused by space objects‟.
23 See the definition of „launching State‟ set out in note
19 above.
been put to the test in real situations are like
software that has never been installed on a
computer – there is no way of knowing for certain
whether they are going to work as intended when
it really counts. In the event of a claim for
environmental damage involving (potentially)
billions of dollars, every entity that could possibly
be called upon to cover the cost will be motivated
to interpret its share of liability as narrowly as
possible, perhaps resulting in unexpected gaps in
coverage for the unwary satellite owner.
For this reason, governments, insurers and private
companies that are associated with objects
launched into space would be well advised to test
their assumptions carefully by running through
hypothetical scenarios. If the analysis exposes
significant risks, the choice of the launch
provider, the structure of the launch contract and
the associated insurances may need to be
reconsidered. The financial risks will be
magnified if the potential for environmental
damage is greater, for example where the launch
takes place over land using fuel that is highly
toxic to humans.
Any such analysis as to the level of risk is
complex, because of the many technical and legal
variables. Whilst a great deal of legislative effort
has gone into the development of formulae for
calculating the „maximum probable loss‟ (using a
„maximum probable loss methodology‟)24 arising
from a launch failure, and there has been no
shortage of discussion about potential legal
liability amongst academics, at a commercial level
there appears to have been relatively little
attention paid to the likely legal outcomes when
the cocktail of national and international laws,
contracts and insurance policies is given a good
stir.
Take for example, a hypothetical launch failure
that results in destruction to property, injuries to
persons, contamination of a large area of land and
economic losses to individuals and businesses. It
is to be hoped that, in the event of such a tragic
accident, any corporation or government
associated with the launch would respond in a
humane fashion. Perhaps, because of
considerations of humanity and also out of
24 See, for example, Regulation 7.02 of the Australian
Space Activities Regulations 2001.
6
concern for corporate brands and/or
(inter)national reputations, the response would be
swift and effective. Alternatively, depending on
the culture and values of the States and
corporations involved, the response may instead
be to distance themselves from the tragedy as
much as possible, pointing the finger of blame at
other participants.
In either case, and quite apart from any
consideration of the relevant international rules,
behind the scenes, lawyers and insurers for all
concerned will be working overtime to exclude, or
at least to minimise actual legal liability as much
as possible. At that point, regardless of any
generosity of spirit that may have existed at the
time of the initial transaction, experience teaches
us that each party is likely to throw its resources
behind the identification of loopholes in contracts,
policies and legislation, in the hope of shifting
some or all of the responsibility to another one of
the participants. If there are flaws in the legal
structure, they are likely to be unearthed through
this process.
It is not the aim of this paper to discuss all of the
theories of liability under which a private claim
for damage to the environment may be made.
However there are two obvious potential sources
of liability for launch participants:
(a) a claim by a State that has suffered loss
against the launching State or States under
the Liability Convention; or
(b) a private individual or class action in
negligence (or some such analogous cause
of action) taken by injured parties in a
national court.
With respect to the first of these scenarios, the
enactment of national laws enables space-faring
States to formalise domestic legal processes that
would allow them to pass on financial
responsibility to, and recover from their national
non-governmental entities the amount of the
damages for which the State may be liable at the
international level. Of course, this does not
remove the international obligation of liability of
a launching State under the Liability Convention
(or Outer Space Treaty). Rather, a domestic
mechanism of this nature can transfer to non-
governmental entities the financial „risk‟
associated with this potential international liability
for third party claims, in effect resulting in a form
of indemnity of the Government in the event of a
claim against the State arising from the launch.25
In the case of a private action, whether by an
individual, a class of individuals or a company, it
is likely that the litigants will cast the net as
widely as possible, to cover any participant with
financial resources who might have contributed to
the accident. There are many factors that could
theoretically lead to a launch failure, including
faulty construction of the launch vehicle, errors in
on board software, failures of ground equipment
and anomalies in the behaviour of the satellite
itself during launch. Accordingly, the launch
provider, satellite owner and their suppliers are all
among the potential targets of such litigation,
depending on the cause of the accident.
Although any one or more of the participants
could be blamed for a technical error causing the
failure, arguably, the responsibility for ensuring
that a launch failure does not result in harm to
third parties lies with the launch provider and the
Government(s) tasked with regulating the
launch.26 For this reason, the industry expectation
is that the launch provider, as the party who is
best placed to manage the risk of a launch failure,
should be responsible to cover any third party
losses, with the assistance of a reasonable level of
insurance and backed up by its Government.
A satellite owner that becomes caught up in
litigation following an accident would expect to
be covered by this structure, which would
normally be expressed in the form of lengthy
insurance and indemnity provisions in the launch
contract. The standard forms of these provisions
have, for the most part, been in use for many years
and are traditionally classified as „non-negotiable‟
25 For example, the licensing regime established under
the Australian Space Activities Act 1998 allows for the
express inclusion of an indemnity to the Australian
Government to be provided by recipients of an
Overseas Launch Licence against third party claims
arising from the launch.
26 Article VI of the Outer Space Treaty obliges „the
appropriate State‟ to authorize and continually
supervise the (space) activities of non-governmental
entities.
7
by launch providers, due to the interwoven nature
of insurances and contracts in the launch industry.
It is therefore important to note that there may be
pitfalls in the system for those who launch space
objects based upon the assumption that they are
protected by this traditional structure. This is
particularly the case where environmental damage
is a high risk, depending on the choice of launch
vehicle and the location of the launch site.
In this context, a number of key questions arise:
Will insurance cover environmental claims?
Returning to our hypothetical launch failure, in
the event of a claim against the various launch
participants, each of the defendants will look first
to their insurance policies to protect themselves,
as well as the insurance policy taken out by the
launch provider. The owner of the satellite would
usually ensure that it is named on the launch
provider‟s policy and should therefore be
protected against claims for property loss, death,
personal injury and consequential losses up to the
policy limit.
But does the concept of „property loss‟ envisaged
in an insurance policy extend to environmental
claims? Where natural resources that are not
regarded as personal property – and thus are the
property of a State - have been damaged, there is a
risk that such a policy will not be sufficient.27
Furthermore, it is likely that claims of this nature
would be expressly excluded from a standard third
party launch liability policy. A prudent satellite
owner would therefore be well advised to check
the policies of the launch provider, to determine
whether environmental losses are either excluded,
are subject to a sub-limit or are dealt with in a
separate policy, if at all.
This is particularly important in the case of
technology such as that used in the Proton and
Longmarch launch vehicles, which launch over
27 This question is less problematic – although not
completely uncontroversial – at the international level,
given that Article 1 (a) of the Liability Convention
defines damage as including „loss of or damage to
property of States or persons, natural or juridical….‟
(emphasis added).
land and have used highly toxic fuel.28 If the
launch provider has taken out a separate policy to
cover environmental losses, the owner of the
satellite may want to ensure that it is comfortable
with the level of cover and has also been named
on that policy.
Will the launch provider cover environmental
claims?
If the claim exceeds the limit of the insurance
policy, or is not covered at all (which may be the
case in the event of environmental damage), the
owner of the satellite may have an expectation
that the launch provider will take responsibility
for the losses under the indemnities set out in the
launch contract. Once again, an indemnity that
requires that the launch provider take
responsibility for loss of property, personal injury
and death, may not cover the most potentially
costly forms of environmental harm, for example
where a toxic substance is spread over a wide area
of land or sea.
Furthermore, depending on the specific drafting,
the indemnity may not be triggered by the very
situation in which it is needed; namely a claim in
negligence against the owner of the satellite. If,
for example, the indemnity is expressed to apply
only when the failure is attributed to abnormal
behaviour of the launch vehicle (based on the
telemetry sent by the vehicle prior to or during the
accident), the satellite owner may find itself
facing the injured litigants alone, once the launch
insurance policy is exhausted.
Indemnities of this nature are common in the
launch industry and may, in the view of the
authors of this paper, lead to an unexpected result
for the satellite owner in some circumstances.
This is because it is entirely possible for a failure
to occur in circumstances where the telemetry
received from the launch vehicle is perfect, either
because the satellite suffered an anomaly, the
28 See note 14 above. See also Amelia Gentleman,
„Scandal of children poisoned by Russian space junk‟
The Observer, 10 December 2000; Michael Day, „What
Goes Up…‟ New Scientist, 11 October 1997; Peter J
Brown, „Kazakhstan at Crossroads in Space‟, Moscow
Times, 3 August 2008; Jim Giles „Study links Sickness
to Russian Launch Site‟, Issue 433 Nature 95, 13
January 2005.
8
launch vehicle was struck by debris, or some other
intervening cause.
It may even be possible for the launch vehicle to
cause a failure in circumstances where the vehicle
itself has not behaved abnormally. The potential
for such fine technical distinctions to result in a
different allocation of liability was illustrated
recently, following the loss of a Russian satellite
known as Express-AM-4, launched by a Proton M
launch vehicle. On 19 August 2011, the day after
the satellite was deposited into an incorrect orbit
by the upper-stage rocket, a statement was issued
on behalf of the launch vehicle‟s manufacturer,
Khrunichev, alleging that:
„the Proton M launch vehicle performed
nominally, and the ascent unit, including the Briz
M upper stage and the spacecraft, separated at the
appropriate time‟.29
Yet, despite the apparently nominal telemetry
from the launch vehicle, the satellite was
irretrievably lost. An inter-agency investigation
has subsequently concluded that the loss occurred
as a result of an error on the Briz M‟s on-board
computer. 30
If the protections set out in the launch contract can
only be triggered by an anomaly that is disclosed
by the telemetry of the launch vehicle,31 the
launch provider may not be obliged to step up and
protect its customer (the satellite owner) against
third party claims in such a case. Fortunately, no
third parties have, to date, suffered physical loss
29 See ILS press release at <http://www.ilslaunch.com/
newsroom/news-releases/russian-federal-mission-expr
ess-am4-anomaly-investigation-underway> (accessed 5
September 2011); „Proton Places 300M Russian
Telecom Satellite in Bad Orbit‟, SpaceNews_com.mht.
30 Following an inter-agency launch investigation,
Roscosmos has issued a statement to the effect that
„The satellite was placed in the wrong orbit because of
the malfunction of the Briz-M upper-stage rocket‟
<http://www.spacedaily.com/reports/Express_AM4_La
unch_Failure_Inter_Agency_Commission_Concludes_
Investigations_999.html> (accessed 5 September
2011).
31 Of course, the drafting of the launch services
agreement does not prevent unrelated third parties who
suffer physical loss as a result of a launch failure from
bringing a claim directly against the launch services
provider.
as a result of the Express-AM-4 launch, although
concerns have been expressed about the threat that
a „lost‟ 5.8 tonne satellite may pose to future
space navigation.32
Either way, the case illustrates the risks involved
in assuming that the launch provider will cover
third party claims in all circumstances. In the
event of a failure that causes environmental or
other physical damage, the technical cause of the
anomaly may be a crucial element in determining
who is ultimately responsible to pay for the loss.
Will the Government of the Launch Provider
cover environmental claims?
The last port of call for a satellite owner faced
with an environmental claim, following our
hypothetical accident, may be the Government of
the launch provider. The Governments of all of
the major launch providers have legislation that
provide for some form of compensation scheme in
such a circumstance.33 These schemes have
presumably been put in place in response to
international law,34 and are also intended to
provide satellite owners with the confidence to
use the launch services offered by that country.
Yet, these national laws give rise to many
(unanswered) questions. Which injured parties are
able to make a claim under such a framework?
Are the laws drafted broadly enough to
encompass environmental claims? Can private
individuals and companies claim, or only States?
Can foreign nationals claim, or only nationals of
that particular State?35 Does the claims process
give injured parties legal rights to compensation,
32 See http://www.spacedaily.com/reports/Lost_Russia
n_satellite_poses_threat_to_space_navigation_999.htm
l (accessed 8 September 2011).
33 See for example: United States 1984 Commercial
Space Launch Act; Decree 5663-1,Law of the Russian
Federation about Space Activities; 2008 French Act
Relating to Space Activities
34 See note 15 above.
35 See Decree 5663-1, Law of the Russian Federation
about Space Activities, Article 24.1: „Clean-up of
accidents while carrying out space activities shall
consist of the restoration and reconstruction of the
industrial and other plants that have suffered as a result
of the accidents, necessary environmental measures
and compensation for damage to relevant subjects of
Russian Federation, organisations and citizens‟
9
or only the right to apply for an ex gratia amount?
Is further legislation or political action necessary
before compensation is paid? Will the
compensation be substantial or only token?
If the legislative claims process is uncertain,
expensive, fraught with administrative barriers, or
unwieldy, the potential litigants may choose to
make their claim directly against the launch
participants, either as an alternative, or in parallel.
If this occurs, once again, the satellite owner
should not simply assume that it will be
indemnified. Rather, it would be prudent to make
its own inquiries before entering into a launch
contract. It may be the case, for example, that the
launch provider will be reimbursed by its
Government under the legislation, or pursuant to
side arrangements. The satellite owner, on the
other hand, who may not be a national of that
State, may not have sufficient standing to make
such a claim.
Questions about environmental responsibility
become particularly pertinent in the case of launch
vehicles which use more toxic forms of fuel.
Whilst, for example, the Governments of Russia
and Kazakhstan have reportedly argued between
themselves for decades about the use of
hydrazine-based propellants, as well as clean up
procedures and compensation / land use payments
to be made as a result of both successful and
unsuccessful launches,36 the risk of a claim
against commercial launch participants remains a
matter for consideration.
Conclusion
Despite a number of tragic incidents in the launch
industry that have resulted in loss of life, property
and environmental damage, this has not given rise
to international or national claims under the
Liability Convention, nor to extensive claims for
environmental damage or other losses against
launch participants. One might speculate that,
regrettably, this may be because those who are
most likely to suffer from direct physical damage
or environmental degradation arising from launch
activities are often persons in vulnerable
36 See, for example, <http://www.russodaily.com/
reports/Kazakhstan_Wants_Russia_To_Pay_60_Millio
n_Dollars_In_Damages_For_Proton_Crash_999.html>
(accessed 5 September 2011).
communities with little access to legal or financial
resources, and few legal rights in their local /
national jurisdictions.
However, those who launch objects into space
have no reason to be complacent about this issue.
From a legal perspective, the framework of
national laws, insurances and commercial
contracts that are commonly believed to protect
launch participants may contain unexpected
loopholes for the unwary. There is always a risk
of a private action by classes of persons,
corporations, or even affected States, not to
mention damage to a corporation‟s brand or the
international reputation of a country involved in a
catastrophic launch failure.
With these considerations in mind, does the
„appearance‟ of legal protection make satellite
owners more cavalier in their choice of launch
vehicle than they otherwise should be? Should
there be more consideration of human and
environmental issues by those who launch space
objects? Is the use of a launch vehicle with toxic
fuel unconscionable, regardless of the legal
framework protecting the participants?
Prevention of environmental damage in the first
place is better than a legal cure. Thus it may be
that the time has come for satellite owners (both
Governmental and private) to make cleaner
choices regarding the environmental aspects of
their launch activities, rather than relying on
largely untested legal protections, the terms of
which may come to haunt them in the tragic event
of a catastrophic launch failure giving rise to
significant environmental damage.