China ratified the Outer Space Treaty in 1983. According to information available to the author the only other treaty on outer space ratified by China is Convention on the Registration of Objects Launched into Outer Space, on 12 November 1974.
by Dr. Ruwantissa Abeyratne in Montreal
You don’t always need a plan. Sometimes you just need to breathe, trust, and let go, and see what happens. ~ Mandy Hale
It was reported in the media that on Sunday 9th May this year, parts of Long March 5B – China’s biggest rocket – crashed into the Indian Ocean in proximity to the Maldives. Most of the parts of the re-entry vehicle had - as is usual– burnt upon re-entry into the Atmosphere. On the face of it, this is seemingly usual, that a space object on re-entry is directed by the launching State to descend on the Ocean, partly because the oceans cover a major part of planet Earth and partly because landing in the ocean obviates possible danger to human habitation. However, on this occasion, the occurrence was considered by the astronomical community as worrying since, unlike in other instances of re-entry, no one seemed to have known when the space object would land on Earth and where exactly it would land. In other words, there was no control over the space debris that was hurtling towards Earth at several times the speed of sound.
Presumably, there had been no pre-calculation and precision and no predictive intelligence in this crucial stage of the space project which prompted the US space agency NASA to comment on the failure to "meet responsible standards” related to the launch. NDTV reported that China – the launching State – had responded through its foreign ministry: “ You mentioned some comments from the NASA administrator. It is currently common practice across the world for launch vehicles of spacecraft to undergo natural orbital decay after passing orbital altitude and then eventually be ablated upon re-entry into the atmosphere". China also claimed that it had closely monitored the re-entry trajectory and kept the world advised and went on to say: “China's space authority has released information several times on the re-entry of upper stage debris of the Long March-5B Y2 rocket and shared re-entry forecast via international cooperation mechanisms. To date no damage by the landing debris has been reported”.
Some have commented that this sort of thing should not be happening in the 21st Century, citing the crash of Skylab 42 years ago into parts of the Indian Ocean and Western Australia, which scattered debris across a sparsely populated 150 km (90 mile) wide section of Western Australia, as chronologically pardonable. However, it was, they claimed, not acceptable in the current age of sophisticated satellite navigation and the information technology revolution. Skylab was launched in May 1973 and came crashing down to Earth on 11 May 1979 when it unexpectedly ran out of orbit. Kiona N. Smith writing in Forbes on July 12, 2020 says: “But perhaps the most interesting thing about the Skylab story is that this sort of thing doesn’t happen more often. Space debris scattered across a landscape, even a sparsely populated one, is a rare event. Most de-orbiting spacecraft end up in a 5,000-km-wide stretch of the Southern Ocean called the Spaceship Cemetery (or, much less evocatively, the South Pacific Ocean Uninhabited Area)”.
Although the Outer Space Treaty of 1967 provides that exploration of outer space is for the common heritage of mankind, thereby obviating any claims that States might have to sovereignty in outer space, Article 2 of Convention on International Liability for Damage Caused by Space Objects of 1972 categorically states that a launching State is absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight. Article VII of the Convention provides that a State which suffers damage, or whose natural or juridical persons suffer damage, may present to a launching State a claim for compensation for such damage. In this era of space travel carried out by corporations and private entities the question of accountability takes on a new dimension and nuance. Article II of the Convention on Registration of Objects Launched into Outer Space (Registration Convention) stipulates that a launching State is that which launches or procures the launching of a space object; or a State from whose territory or facility a space object is launched. This ties the State of launch to any entity if the launch was carried out in the territory of a particular State.
China ratified the Outer Space Treaty in 1983. According to information available to the author the only other treaty on outer space ratified by China is Convention on the Registration of Objects Launched into Outer Space, on 12 November 1974. According to the law of treaties a State is only liable for prescriptions and liabilities under treaties it has ratified.
In this context, it might be opportune to look at negligence in a new light in the context of the rapid entry of commercial space travel into the area of outer space exploration. The proliferation in the years to come, of space transportation, would bring to bear issues of responsibility and liability of those responsible. The award of compensation would be the natural recourse under principles of tort law in the common law context.
It becomes clear that the enormity of disasters, both in extent and consequences that space exploration may bring with the proliferation of space travel, brings to bear the need to view the principles of negligence in a new perspective and dimension. In most globalized economies, tort law, which is the branch of law that provides compensation for injuries to persons and property caused by the act of another, is a constantly evolving area of the law. This continuous evolution is caused by new and emerging social and economic activities brought about by technological advancement and increasing and varied commercial activity. One of the inherent difficulties in dealing with tort law is that it has defied definition. However, it has two determinants: actual or legal damages caused to the plaintiff by the act or acts of the defendant and the fact that the act of the defendant could be determined on the basis of fault liability or strict liability.
English law has accepted the concept of incrementalism, which rejects generalization in relation to the duty of care, in favor of a cautious development of law founded on analogies to similar fact situations but espousing and applying fairness and justice to each case. This approach has its genesis in the judgment of Justice Brennan in the 1985 case of Sutherland Shire Council v. Heyman handed down by the High Court of Australia where His Honour said: “It is preferable...that the law should develop novel categories of negligence incrementally and by analogy with existing categories, rather than by massive extension of a prima facie duty of care restrained only by the indefinable...considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed”.
A management principle that touches on the legality of the launch of rockets into space is predictive or anticipatory intelligence that, on the one hand calls for space faring actors to be fully aware of and prepared for possible threats to the surface of the Earth, and on the other, makes them aware of their responsibility and accountability for damage caused. There have so far been no fatalities on the ground caused by space debris. However, it cannot be ruled out for the future. Renowned theoretical physicist Michio Kaku was reported by Newsweek of 7 May 2021 as warning the United States: “Michio Kaku…said during an appearance on CNN's New Day program that the country should be worried "like a bat out of hell" about the rocket stage's impending re entry into the atmosphere…This 20-ton rocket, the Chinese Long March 5B rocket, is tumbling out of control, and it could hit anywhere as far north as New York City or as far south as New Zealand."
One wonders what Oscar Wilde meant when he said: “ Nothing that occurs is of the slightest consequence”
Dr. Abeyratne is the author of Space Security Law (Springer): 2011 and Frontiers of Aerospace Law (Ashgate):2002.
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