by Cameron Worrell
This post is part of the student blogger project from the summer session of Space Security Law.
Cameron Worrell is a second year student at the University of Mississippi School of Law pursuing a certificate in Remote Sensing, Air, and Space Law.
In the last blog post, I gave a skeletal overview of the current law on space debris, along with some of the issues inherent with that law. This blog post will focus on possible changes to existing law to address those problems, namely the assignation of liability to a specific party. These potential changes on space debris liability can be divided into the same two groups as before: damage to space objects and damage to objects within Earth’s atmosphere.
The foundation for all further change is identification of the culprit—in the case of space debris, the launching party. However, given that there are between 19,000 and 500,000 pieces of space debris currently in orbit according to varying government reports, the likelihood of identifying the perpetrator of a relatively small impact (regardless of its large consequences) is slim. To solve this problem, the international community could come to a couple of possible agreements, at least. They could shift the burden of proof slightly, only asking that the tortfeasor prove that it was likely to be debris from the offending party, and giving the defendant the opportunity to show otherwise. Another possibility is the idea of a “signature” unique to each launching party, such as a nonlethal radioactive substance, that could indicate the nation of origin of any future debris. The problem with these plans is the same as the problem with any plans calling for more accountability in space: those with the most to lose are those that matter. The United States, Russia, and China have little incentive to sign an international agreement that makes them more vulnerable to foreign lawsuits. If they wish to extract concessions for a satellite incident, all they do is expend a bit of political capital and get on with their day. Smaller countries do not have that luxury, so are deterred from investing heavily in space.
For space-to-space incidents, the primary problem is observation. With no way to witness potentially tortious incidents, both sides can claim it was the other’s fault and call their respective experts on orbits to disagree with the other. Installing video cameras is not as implausible an option as it seems at first glance. Operators of streaming webcam footage from places as wide-ranged as savannah watering holes and urban bars sustain themselves with advertisement money from viewers, a policy that could be repeated with consumers interested in seeing a live view of outer space. Furthermore, even discarding that assumption, it is a small price to pay relative to the hassle saved. A camera would not only show what happened in the accident, but also exactly where the objects were when they collided, via measurements of relative points like stars. If the point of impact is determined, the responsible party is likely also determined.
For space-to-earth debris, there is a different problem. While the protocols in place were followed somewhat by the USSR and Canada in the 1970s (as mentioned in the previous article), their execution was not strong. For one, the Canadians received less than half the money they requested for cleanup. Both sides argued their numbers were correct, as they should, but this outlines the problem in not having a binding impartial arbitrator. If they were willing to swallow the miniscule loss of sovereignty, the various spacefaring nations could recognize a third-party arbitrator, determined before any incident occurred, to determine international space-to-earth tort damages.