Liability Without Accountability: Rethinking Space Debris Law After Iridium-Cosmos Collision

As a matter of fact, outer space is progressively experiencing congestion because of the increasing rate of launching satellites used in various operations ranging from communication, navigation to military activities. The phenomenon of space debris has emerged from the accumulation of inactive satellites, fragments, and other elements resulting from previous space accidents. For instance, in February 2009, the collision between Iridium 33, an operational U.S. communication satellite and Cosmos 2251, a retired Russian satellite caused more than several thousand pieces of debris in Low Earth Orbit according to NASA. Despite the serious nature of the space accident, no country has been held accountable for the damage through the international space law framework.

In addition, there is no proper system for compensating damage caused by the debris. It can be observed that there is a critical deficiency in the international law regime as accountability has failed to be established following a space accident. The question therefore is: Is the international space law regime sufficient to cope with the increasing congestion of outer space in relation to commercial activities? This article will attempt to explore the question.

Legal framework governing space debris and liability:

Among many international laws governing outer space activities, it is worth mentioning both the Outer Space Treaty and the Liability Convention. The two documents are important because they provide the basis for understanding what rights and obligations should exist when working in outer space. According to Article VI of the Outer Space Treaty, outer space is considered common property, and no State can exercise any control or sovereignty over it. Therefore, States are responsible for all actions performed in outer space regardless of whether they were made by governmental agencies or private enterprises. It means that, if a space object or satellite was damaged, the launch State would be responsible according to the rules of international law.

The Liability Convention aims to solve the problems associated with liability and compensation for damages caused by the space object. Specifically, according to Article II of the document, if damage occurs on the surface of Earth, then liability is absolute, and it does not matter whether one of the parties committed an error. On the contrary, when damage happens in outer space, the document suggests introducing fault-based liability (see Article III). Under this model, the party claiming the right to compensation bears the burden of proving that the other party violated the agreement and acted negligently. In this context, many serious issues arise.

First, proving fault in the case of collision in outer space is a difficult task because many factors need to be considered, such as the orbit of the object, technical characteristics, and lack of clear regulations for managing traffic in outer space.

Second, in practice, liability frameworks cannot function properly, especially in the case of space debris.

Third, it is essential to note that there is no binding international treaty that could regulate the issue of space debris. Current guidelines related to reducing the risk of collisions and preventing debris which is not binding nature.

The 2009 Iridium-Cosmos Collision: A case of liability without accountability:

In this regard, it becomes important to look into the practical application of international space law rather than the theories related to it. An important example of such practical issues is represented by the Iridium-Cosmos collision of 2009. In 2009, a working commercial satellite, called Iridium 33, which belonged to the US Iridium satellite constellation, collided with the dead Russian satellite known as Cosmos 2251 in Low Earth Orbit. This particular event represents the very first documented incident of a collision of two intact satellites, resulting in the formation of thousands of pieces of debris and having a considerable impact on the orbit environment.

Most importantly, there has been no attempt to pursue any kind of liability claim from any State due to the fact that even according to the rules of the Liability Convention, the concerned party had a legal right to demand compensation. At the same time, considering the fact that the incident happened in outer space, the fault-based regime applied, implying the necessity to prove the existence of some sort of negligence. Nevertheless, the problem with the identification of negligence lied in the fact that Cosmos 2251 was actually a decommissioned satellite, which should have been removed from the orbit, while the working Iridium 33 operated in outer space without having an adequate system for avoiding collisions.

As the result, in the absence of any space traffic management system and clear rules of operation, the possibility of determining the guilty party proved impossible, causing damage both environmentally and legally. This way, it becomes apparent that while the Liability Convention allows the assignment of responsibility, it fails to provide proper means of enforcing the liability and pursuing disputes. Thus, in the described case, the concept of “liability” existed only in theory whereas “accountability” became a matter of impossibility.

Why the Current Liability Regime Fails in Addressing Space Debris

The case of Iridium-Cosmos collision in 2009 highlights one of the fundamental flaws inherent in the current system of international space laws, as opposed to being a stand-alone case. Under the existing liability system, as defined by the Liability Convention, while assigning blame for the damage done, it is supposed to provide for accountability. However, there is a major problem in terms of defining fault as the criteria for accountability. Specifically, the affected state must prove negligence or wrongful conduct from another State's actions resulting in the damage to its assets in outer space. Nevertheless, proving fault in outer space is extremely difficult due to multiple reasons associated with technicalities, including high speed, uncontrolled movement, and lack of coordination in real time.

Another equally significant element that must be taken into account is the lack of an integrated international regime concerning the management of space traffic. In contrast to the Earth's atmosphere where there is a centralized organization that controls air traffic, there exists no governing entity that controls satellite movements and coordinates them to avoid collisions in space.

One of the problems in the current system is the lack of legal requirements regarding space debris and its removal. Despite the existence of Outer Space Treaty which defines general principles applicable to space activities, it does not contain specific provisions dealing with debris. Also, the guidelines developed by international bodies concerning debris remain non-binding in nature.

In addition to the above-mentioned concerns, the emergence of a new generation of private space actors poses yet another challenge. Today, more and more satellites, in the form of large constellations of satellites, are being sent into space by commercial enterprises, but the liability still rests with the relevant states

Towards Accountability: Reforming the Legal Framework for Space Debris

In light of the aforementioned facts, it becomes clear that a radical reform of the current system of international space law liability is absolutely necessary at present. In particular, the 2009 case of the Iridium-Cosmos collision revealed that theoretical liability arrangements cannot function without effective accountability mechanisms.

Firstly, a strict liability regime needs to be adopted in the case of damage caused in outer space. This means that the responsibility will be imposed regardless of negligence on the part of the respective party. As a result, affected parties will be able to claim compensation without any need to prove that the liable party failed to take certain actions.

Secondly, the creation of a sophisticated and coordinated space traffic management regime is crucial. Just as the traffic in the earth atmosphere is controlled through various systems of collision avoidance, a similar mechanism needs to be established regarding the control of satellites in outer space.

Thirdly, a set of legal obligations related to space debris reduction and removal need to be established. So far, space debris guidelines have been purely voluntary, and should thus be legally binding. For example, states are obliged to implement proper disposal or relocation of satellites that have completed their operation.

Moreover, the current regulatory regime for commercial operators in outer space needs to be improved significantly. Commercial enterprises tend to use more satellite constellations nowadays, resulting in orbital congestion and space debris generation. It means that license requirements need to become stricter, while compliance mechanisms should be enforceable.

Last but not least, international cooperation should remain at the center of efforts to reduce space debris. As the matter stands, outer space represents global commons, implying that national-level approaches are unlikely to yield results. In order to address this issue, it is necessary to create a new international treaty aimed at dealing with space debris problem.

Over the past few years, the problem of space debris has become increasingly important. The collision between Iridium and Cosmos satellites in 2009 is a striking example. Although there are provisions on liability in international space law, they do not guarantee accountability. This is not a one-time case.

Analyzing the current legal framework shows that the liability system lacks many elements necessary for solving the problem under discussion. For instance, the fault-based nature of the liability principle is outdated and inadequate in the modern space environment. If the legal framework does not correspond to contemporary technology, similar events will occur more frequently in the near future.

The development of space activities has reached unprecedented heights. In the modern world, there are huge satellite clusters, which complicates the space environment. Failure to solve the problem may result in a considerable amount of space debris posing a severe threat to space safety.

Hence, one can assert that the problem of "liability" without "accountability" in international space law requires urgent legal reforms and international collaboration. Without taking any actions, the problem may worsen to the point where future generations will no longer be able to access outer space.

Views are personal.