Starry Skies and Legal Ties: Navigating the Complexities of Space Debris Liability

Among the twinkling stars in the night sky, an invisible threat looms closer to us than we might think. Encircling our planet is a swarm of unregulated debris that not only threatens the future of scientific advancement, but undermines the very laws meant to govern our cosmic neighborhood. Only 27,000 out of over 100 million pieces of space debris – most of which are small meteoroids or discarded remnants of human-made objects – are currently accounted for by the Department of Defense’s Space Surveillance Network sensors. [1] So, what happens when a piece of debris traveling at an average speed of 15,700 miles per hour in low Earth orbit collides with a satellite or spacecraft, and perhaps more importantly, who is responsible for the damage? [2]

The Convention on International Liability for Damage Caused by Space Objects, also known as the Space Liability Convention (SLC), is an international treaty that came into effect on September 1, 1972, and was meant to establish the core principles of liability for damage caused by space objects, thereby providing an international legal framework for compensation claims in cases of in-orbit damage. [3] It supplements the earlier Outer Space Treaty (OST) of 1967 – the first major global agreement that establishes principles for the peaceful exploration and use of space – and is one of the primary legal instruments governing space activities. [4] The SLC was adopted by the United Nations General Assembly in its Resolution 2777 (XXVI) of November 29, 1971. [5] But while the SLC makes states liable for damage caused by their space objects, it fails to wholly address the issue of space debris, especially concerning objects without identifiable owners or originating from non-signatory nations. In order to avoid an inevitable demonstration of Murphy’s Law, the SLC must evolve and adapt to current realities by establishing a comprehensive and unambiguous legal framework that clearly defines responsibility and liability concerning this type of space debris. Without this layer of legal clarity, we risk fostering a celestial environment that is increasingly hazardous and unregulated, ultimately hindering our continued exploration of outer space.

While it is meant to regulate the world’s space agencies, the SLC only provides a foundation when it comes to space debris governance. It states that the launching state is liable for damage caused by its space objects, but leaves ample room for interpretation, effectively forcing further international negotiation in the case of a dispute. In 2009, Cosmos 2251 of Russia and Iridium 33 of the United States crashed in what was the first-ever unintentional collision of two intact satellites in space. [6] Not only did the crash create a safety hazard with the copious amount of small space debris that it generated, but the unidentifiable nature of the remaining particles made it impossible for liability to be determined. Because Article III of the SLC requires proof that a launching state was at “fault” to be considered liable for damages, no course of action could be taken when both satellites were operating as intended with no clear wrongdoing by either party.

The SLC’s provisions appear to function much more effectively when applied to incidents involving a single launching state and clear damage to Earth. In 1978, the Soviet satellite Cosmos 954, equipped with a nuclear reactor, crashed in the Northwest Territories of Canada spreading radioactive debris. The USSR was held liable for the cleanup costs ($3,000,000 CAD), which was an expected affirmation of the SLC’s standard of “absolute liability” for damage caused on the surface of the Earth or to aircraft in flight (Article II). [7] That said, the treaty’s binary distinction between absolute liability for damage on Earth or to aircraft (Article II) and fault-based liability for damage in outer space (Article III) fails to account for a range of possible scenarios, particularly in the realm of space debris, which will become increasingly relevant with the rise of commercial space operations. [8]

As space exploration becomes increasingly lucrative to commercial operators like SpaceX and Blue Virgin, the SLC’s shortcomings in addressing these entities become even more pronounced. On this point, we can find valuable insight in the writings of space law specialist Paul B. Larsen: “The Convention does not apply to damages caused by a launching state or its authorized commercial operators to its own nationals. Neither does it apply to foreign nationals taking part in the launch or merely observing the launch at the invitation of the launching state. Article VI of the Liability Convention provides that launching states may be exonerated if they can prove that damage was caused by the claimant. Thus, liability remains almost as strict as that provided in OST Article VII.” [9] The SLC, while attributing liability to launching states (Article VI), does not explicitly address commercial entities’ obligations and responsibilities. [10] As companies increase their involvement in space, questions regarding the treaty’s application to these non-state actors arise, but few answers can be found within the existing legal framework.

In such a rapidly evolving outer space environment with commercial entities assuming increasingly significant roles, the responsibility that the SLC primarily places on “launching States” (Article VI) may not suffice. Since 2019, SpaceX, a private American spaceflight company, has launched more than 1,700 active Starlink satellites into earth’s orbit. [11] Starlink satellites are over 60 times closer to Earth than traditional satellites and are designed to provide satellite internet connectivity to underserved areas of the planet. [12] Consider this: in a scenario where a commercial entity separate from the launching state causes damage, such as a Starlink satellite colliding with another object in orbit, how does the SLC apply? More importantly, how should it apply? How does liability apply to commercial operators who may launch from international waters, lease launch vehicles from different states, or even operate non-terrestrial launch platforms in the future?

To properly adjudicate such non-state collisions, scholars such as Barry Kellman suggest framing space debris as an “international environmental nuisance.” [13] This perspective invites a more holistic approach, incorporating principles from international environmental law, like the “polluter pays” principle, first officially introduced by the Organization for Economic Cooperation and Development (OECD) in a 1972 recommendation, stating that the polluter should bear the expenses of carrying out the measures decided by public authorities to eliminate pollution. [14] The polluter pays principle has become a guiding tenet of international environmental law that assigns responsibility for the costs associated with pollution or environmental damage to the party responsible for causing it which, if adapted to include space affairs, would expand the liability conversation beyond states to encompass other space actors. In the context of space debris, the principle would require those who launch objects – commercial or not – into space to bear the financial responsibility for any debris that results. Although this expansion would not necessarily solve the fundamental issue of the identification of debris fragments, it would meaningfully expand the scope of liability assignment so that lengthier legal disputes may be preemptively avoided.

With key global players across the world advancing their ambitions in space, the current geopolitical landscape appears to reinforce our belief in the pressing need for an updated legal framework. Russia’s Roscosmos, with its rich history in satellite testing, recently launched a project suggestive of Anti-Satellite (ASAT) capabilities and has effectively placed the SLC’s provisions regarding peaceful space use under scrutiny. [15] Most notably, Russia’s direct-ascent anti-satellite (DA-ASAT) missile test on November 15, 2021, struck a Russian satellite (COSMOS 1408) and created a significant debris field in low Earth orbit. The repercussions of this test were severe, leading to the generation of more than 1,500 pieces of trackable orbital debris and potentially thousands of smaller, untrackable debris fragments. [16] Given Russia’s historic antagonism in space affairs with the West, this incident clearly demonstrates the need for legal measures to account for the very real threat of the militarization of space assets. Activities suggestive of ASAT capabilities put into question the very essence of Article IV of the Outer Space Treaty (OST) of 1967, which emphasizes the peaceful use of outer space. [17] The OST is explicit in its prohibition on the placement of nuclear weapons or any other kinds of weapons of mass destruction in Earth’s orbit, on celestial bodies, or in outer space generally. However, its silence on the use of conventional weapons like ASAT systems leaves open a massive accountability loophole that may be exploited in increasingly desperate geopolitical times.

In light of these complex global issues, institutions like the International Court of Justice (ICJ), which is recognized as the primary judicial organ of the United Nations, may be pivotal in bridging the gap between the SLC’s original intent and its contemporary application. [18] By drawing parallels from the ICJ’s prior territorial and environmental rulings, key insights into space debris challenges are made. In the Trail Smelter case between Canada and the United States (1938 and 1941), the principle that a state is liable for environmental harm caused to another state’s territory was established. [19] Similarly, the Corfu Channel case between the UK and Albania (1949) implemented the “duty to warn” about known dangers in a nation’s territorial waters. [20] These principles, especially the “duty to prevent harm,” are highly relevant in the context of space relations because their function is to hold nations accountable for the physical consequences of their actions. And as state and commercial lines blur in space ventures, the ICJ’s ruling in the Barcelona Traction, Light and Power Company Limited case (1970) may become especially pertinent in the application of the OECD’s polluter pays principle. [21]

As humanity’s reach extends further into the cosmos, the potential for international conflict and environmental disaster grows exponentially. The convergence of state, commercial, and geopolitical interests necessitates a comprehensive legal approach that takes into account the principles historically established by the ICJ and those currently upheld by international environmental law. For the sake of preserving peaceful international relations and mitigating the damage caused by debris from outer space, reform will be essential to ensure that all actors, whether state or private, are held accountable for their activities among the stars.

Edited by Adam Kinder

[1] NASA, "Orbital Debris," May 26, 2021, https://www.nasa.gov/mission_pages/station/news/orbital_debris.html.

[2] NASA, "Orbital Debris."

[3] United Nations Office for Outer Space Affairs, "Resolution 2777 (XXVI)," November 29, 1971, https://www.unoosa.org/pdf/gares/ARES_26_2777E.pdf.

[4] United Nations Office for Outer Space Affairs, "Resolution 2222 (XXI)," November 29, 1971, https://www.unoosa.org/pdf/gares/ARES_21_2222E.pdf.

[5] United Nations Office for Outer Space Affairs, "Resolution 2777 (XXVI),” November 29, 1971, https://www.unoosa.org/pdf/gares/ARES_21_2222E.pdf.

[6] 60th International Astronautical Congress, "The Collision of Iridium 33 and Cosmos 2251: The Shape of Things to Come," October 16, 2009, https://ntrs.nasa.gov/api/citations/20100002023/downloads/20100002023.pdf.

[7] Japan Aerospace Exploration Agency, "Settlement of Claim between Canada and the Union of Soviet Socialist Republics for Damage Caused by 'Cosmos 954'," April 2, 1981, https://www.jaxa.jp/library/space_law/chapter_3/3-2-2-1_e.html,

[8] United Nations Office for Outer Space Affairs, "Resolution 2777 (XXVI)."

[9] Paul B. Larsen, "Commercial Operator Liability in the New Space Era," Symposium on the New Space Race, August 2019, https://www.cambridge.org/core/services/aop-cambridge-core/content/view/1E7C65DA4B830981388F4868C46307FC/S2398772319000187a.pdf/commercial-operator-liability-in-the-new-space-era.pdf.

[10] United Nations Office for Outer Space Affairs, "Resolution 2777 (XXVI)."

[11] USA Today, “What is Starlink? Inside the Satellite Business That Could Make Elon Musk a Trillionaire,” December 6, 2021, https://www.usatoday.com/story/tech/2021/12/05/elon-musk-starlink-satellites-spacex-broadband -internet-globe/8881858002/.

[12] The New York Times, “Elon Musk’s Unmatched Power in the Stars,” July 28, 2023, https://www.nytimes.com/interactive/2023/07/28/business/starlink.html?searchResultPosition=2.

[13] Barry Kellman, "Adjudicating Space Debris as an International Environmental Nuisance," Journal of Space Law 39, no. 2 (2014): 227-274, https://airandspacelaw.olemiss.edu/wp-content/uploads/2020/07/JSL-39.2.pdf.

[14] Organization for Economic Cooperation and Development, "Background Note: Polluter Pays Principle," March 20, 2022, https://www.oecd.org/water/background-note-polluter-pays-principle-29-20-march-2022.pdf.

[15] The Guardian, “Russia Admits to Anti-Satellite Test but Denies ‘Dangerous Behavior,’” November 16, 2021, https://www.theguardian.com/science/2021/nov/16/russia-defends-anti-satellite-missile-test.

[16] U.S. Space Command Public Affairs Office, "Russian Direct-Ascent Anti-Satellite Missile Test Creates Significant Long-Last," Spacecom.mil, November 15, 2021, https://www.spacecom.mil/Newsroom/News/Article-Display/Article/2842957/russian-direct-asce nt-anti-satellite-missile-test-creates-significant-long-last/.

[17] United Nations Office for Outer Space Affairs, "Resolution 2222 (XXI)."

[18] United Nations, "International Law and Justice," https://www.un.org/en/global-issues/international-law-and-justice.

[19] Trail Smelter (U.S. v. Canada), 1938 & 1941 I.C.J. 315.

[20] Corfu Channel (U.K. v. Albania), 1949 I.C.J. 4.

[21] Barcelona Traction, Light, and Power Co. (Belgium v. Spain), 1970 I.C.J. 3.