Space Activities by Breakaway Regions as a Source of Uncertainty in Space Law

Joshua Hasler

Vol. 43 Associate Editor

While the idea of a bustling commercial space sector once seemed like science fiction, it has become reality. Every year, more satellites are launched by national governments and private companies, and recreational flights to space are now offered by several major companies. The Outer Space Treaty[1] and its four successor treaties, the Agreement on the Rescue of Astronauts,[2] the Liability Convention,[3] the Registration Convention,[4] and the Moon Agreement,[5] established an international legal framework for space activities. However, the space activities of breakaway and autonomous regions, such as Catalonia, within internationally recognized States introduce legal uncertainty into the regime contemplated by the treaties. The Outer Space Treaty, Liability Convention, and Registration Convention are the most relevant treaties to this problem, as they outline the process for establishing ownership and control of space objects and adjudicating liability and damages caused by accidents. The Outer Space Treaty provides that parties “bear international responsibility” for activities carried out in outer space by governmental or non-governmental entities, requiring parties “authoriz[e] and contin[ually] supervise[]” the activities of non-governmental agencies.[6] Further, it established that States are liable for the damages caused by their space objects to other States.[7] The Registration convention established the process by which space objects should be registered by launching States, helping to clarify who is responsible (and liable) for a given space object.[8] The categories of liability established by the Liability Convention govern the process of adjudicating damages from accidents involving space objects.[9] In both the Liability Convention and the Registration Convention, a launching State is defined as “[a] State which launches or procures the launching of a space object; [or a] State from whose territory or facility a space object is launched.”[10] A launching State is absolutely liable for damage its space objects cause to aircraft in flight or on the surface of the Earth.[11] Additionally, a launching State is liable for damage occurring to another State’s space object or personnel in space “if the damage is due to its fault or the fault of persons for whom it is responsible.”[12] When two or more launching States are involved in launching a space object, they are jointly and severally liable for damage.[13] “The participants in a joint launching may conclude agreements regarding the apportioning among themselves of the financial obligation in respect of which they are jointly and severally liable.”[14] The practical application of these treaties is largely theoretical at this point. The few instances which may have been actionable under the treaties ultimately never resulted in final judgments by international courts interpreting the treaties.[15] Still, the general principles of international law apply to conduct in space, so adjudicating a dispute arising out of the collision of two space objects would not be entirely unguided by precedent.[16] This has led numerous commentators to discuss the proper definition of terms like “fault,” which are essential to the application of the treaties but are not explicitly defined within.[17] Regardless of how other treaty provisions are interpreted, the space activities of autonomous regions or breakaway provinces can complicate the procedures contemplated by the Liability Convention. Given the definition of launching State, an internationally recognized State may be considered a launching State even if actors associated with a breakaway or autonomous region are the ones who procure the launching of a space object.[18] Such an application would be consistent with international law, which has held that States may be liable for damages to other States caused by failures of due diligence related to the use of their territory or the actions of individuals or groups over whom the State exerts jurisdiction and control.[19] Accordingly, if the government of an autonomous region contracted with another State to launch a space object, which damaged the space object of a third State in violation of the space treaties and international law, the internationally recognized State wherein the autonomous region is found would likely be considered the launching State for the purposes of the Liability Convention. While some might contend that the problem described above is unlikely to occur, conditions presently exist for such an incident and States should take notice. For example, last year Catalonia announced its ambitions to form a “Catalan NASA” and develop its own space program, independent of Spain.[20] Critics derided the announcement, saying it made little economic sense, was unnecessary given that Spain was already a member of the European Space Agency, and was an action typical of emerging nations trying to position themselves on the international stage.[21] Even so, on March 22, 2021 a Russian space company launched a nanosatellite on Catalonia’s behalf from a launch facility in Kazakhstan.[22] While Catalonia’s Digital Policy Minister criticized calling the nanosatellite “Spanish,”[23] Russia’s own UN registration filing for March 2021 only lists launching a Spanish satellite, not a Catalonian one.[24] For the purposes of the Liability Convention, Catalonia’s satellite is Spanish; Catalonia is currently considered Spanish territory and Spain exerts (or at least ought to exert) jurisdiction and control over its space activities. If Catalonia’s space program ends up harming another State, Spain could see itself footing the bill. The simple, though potentially problematic, course of action for Spain (and other similarly-situated internationally recognized States) to take to avoid liability under the space treaties would be to put a stop to the space activities of autonomous or breakaway regions. Though, they may have domestic political reasons to avoid such a direct confrontation on an issue that is so bound up in sovereignty. Indemnification agreements under article V of the Liability Convention may provide a way to avoid the imposition of direct rule while shielding the internationally recognized State from financial liability. However, internationally recognized States may be hesitant to do because of the way it may bolster claims to independence. Indeed, this may be one of the main goals of autonomous and breakaway regions in venturing into the space field. Similarly, autonomous or breakaway regions may have their own reasons for not wanting to enter such agreements, fearing that they may implicitly recognize that the internationally recognized State is a party to the launch, weakening their claims to independence. The international community should take notice of the issues posed by the space activities of breakaway regions such as Catalonia. As barriers to entry in the commercial space sector decrease, these types of launches may become more common and introduce increased risk to the space objects of other States.

[1] 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, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty]. [2] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 24 U.S.T 2389, 672 U.N.T.S. 119 [hereinafter Agreement on the Rescue of Astronauts]. [3] Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 [hereinafter Liability Convention]. [4] Convention on the Registration of Objects Launched into Outer Space, Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 [hereinafter Registration Convention]. [5] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 15, 1979, 1363 U.N.T.S. 3 [hereinafter Moon Agreement]. [6] Outer Space Treaty, supra note 1, art. VI. [7] Id., art. VII. [8] See generally Registration Convention, supra note 4. [9] See generally Liability Convention, supra note 3. [10] Id., art. I(c); see also Registration Convention, supra note 4, art. I(a). [11] Liability Convention, supra note 3, art. II. [12] Id., art. III. [13] Id., art. V(1). [14] Id., art. V(2). [15] See Francis Lyall & Paul B. Larsen, Space Law 106–10 (2d ed. 2018) (discussing the incidents that were potentially actionable under the treaties but never reached final disposition before a court). [16] See Outer Space Treaty, supra note 1, art. III. [17] Carl Q. Christol, International Liability for Damage Caused by Space Objects, 74 Amer. J. Int’l L. 346, 369 (1980) (stating that general principles of law provide a method for defining fault under the Liability Convention); Martha Mejia-Kaiser, Collision Course: 2009 Iridium Cosmos Crash, 52 I.I.S.L. PROC.3.9, 5 (2009) (noting that the standard of care in a fault analysis should have two elements, (1) awareness and (2) ability to take action); Joel A. Dennerley, State Liability for Space Object Collisions: The Proper Interpretation of “Fault” for the Purposes of International Space Law, 29 Eur. J. Int’l L. 281, 301 (2018) (arguing for a fault standard under a regime of responsibility for wrongful acts, where States are presumed to have constructive knowledge of their space activities and a violation of due diligence constitutes fault). [18] See Liability Convention, supra note 3, art. I(c). [19] Corfu Channel (U.K. v. Alb.) (Merits) 1949 I.C.J. 4, at 18, 22 (Apr. 9) (territory); Case Concerning Genocide (Bosn. & Herz. v. Serb. & Montenegro), 2007 I.C.J. 43, ¶ 430 (Feb. 26) (jurisdiction or control). [20] Stephen Burgen, Catalonia to Invest in ‘Catalan NASA’ Space Agency and Satellites, The Guardian, Oct. 27, 2020, https://www.theguardian.com/world/2020/oct/27/catalonia-to-invest-in-catalan-nasa-space-agency-and-satellites. [21] Morning Edition, Critics Deride Catalonia’s Attempt to Create a Space Agency, National Public Radio, at 05:09 AM (Mar. 10, 2021), https://www.npr.org/2021/03/10/975545516/critics-deride-catalonias-attempt-to-create-a-space-agency. [22] The First Catalan Nanosatellite Successfully Launched, Technnology.org, Mar. 23, 2021, https://www.technology.org/2021/03/23/the-first-nanosatellite-of-the-catalan-government-successfully-launched-marking-important-milestone-of-catalonias-newspace-strategy/. [23] Alyssa McMurty, Catalonia Launches First Satellite into Orbit, Andolu Agency, Mar. 22, 2021, https://www.aa.com.tr/en/europe/catalonia-launches-1st-satellite-into-orbit/2184572. ^[24] U.N. Committee on the Peaceful Uses of Outer Space, Registration Data on Space Objects Launched by the Russian Federation in March 2021, at 2, ST/SG/SER.E/992 (June 24, 2021), https://www.unoosa.org/oosa/osoindex/data/documents/ru/st/stsgser.e992.html.