I. Introduction
This year marks the 47th anniversary of the Cosmos 954 incident, in which a Soviet satellite re-entered over Canada, scattering radioactive debris across Canada’s Northwest Territories. Canada, with US assistance, spent over CAD6,000,000 to locate, remove, and test debris, cleaning the affected area. On 2 April 1981, the Soviet Union and Canada signed a settlement agreement in which Canada was compensated CAD3,000,000 for the damage caused by Cosmos 954.
While the incident primarily affected Canada, its implications still resonate globally. The Cosmos 954 incident is the only known time when a State made a claim for damage caused by a space object against another. Given that the incident occurred in a Cold War context, the Cosmos 954 incident remains one of the most compelling illustrations of how international law can effectively maintain orderly access to, and use of, outer space. The incident also serves as a reminder that despite the numerous benefits of using outer space, unintended consequences from space exploration are an ever-present risk.
II. Liability for damage caused by space objects
International space law is created by a framework of space treaties, three of which are relevant when damage on Earth arises. The Outer Space Treaty creates the basic legal framework apportioning liability for space activities. The Liability Convention elaborates on the framework and develops a regime of principles and rules applied by States which are, directly or indirectly through their citizens, engaged in space activities. The Registration Convention creates principles, mechanisms, and procedures to assist in identifying space objects, including those that cause damage.
International space law imposes absolute liability on launching States for damage caused by space objects on the surface of the Earth or to aircraft in flight. This absolute liability means that the launching State is required to compensate for damages regardless of fault. Since there can be multiple launching States, international space law creates a regime for joint and several liability.
Damages covered by the Liability Convention include loss of life, personal injury or other impairment of health; or loss of or damage to property. Direct damages are undoubtedly covered by the Convention. However, it is unclear if indirect or consequential damages are also compensable. Canada, in the Cosmos 954 settlement, included consequential damages related to radiation from the Cosmos 954 in its claims, demonstrating that those damages are potentially also covered. This argument is supported by the victim-oriented spirit of the Convention and the objective of ensuring that the property is restored to its pre-damage conditions. Thus, arguably, a broad scope of recovery is prescribed under the terms of the Convention to ensure that consequences of damage are ‘erased.’
Under the Liability Convention, compensation for damage can be obtained by a State by presenting a claim to a launching State through diplomatic channels within one year. If a settlement between the two States is not reached within another year after the claim is brought, the States may set up a claims commission to resolve the dispute. The decision of the claims commission is final and binding on the States if agreed upon; otherwise, the decision is recommendatory. The Liability Convention does not provide rules for enforcement of the award by the commission but relies on the risk of reputational damage if a State fails or refuses to follow through with its obligations.
If either of the States concerned in the claim is not a party to the space treaties, that State can claim under general rules of international law. General international law, mainly composed of customs and general principles, includes a duty not to cause harm to another State. Damage occasioned by one State’s entity or national to another results in a breach of duty not to cause harm, which can give rise to a claim. However, unlike international space law, a claimant State may be required to prove fault or causation for compensation to arise under the general international law. This requirement subjects claimant States to a higher standard of proof than under the Liability Convention and, therefore, makes the compensation claim more complicated. Moreover, under general international law, more defenses or exceptions are permitted to preclude the wrongfulness or liability of States, which are unavailable under the Liability Convention. Express consent by the injured party, self-defense and countermeasures by the liable State, force majeure, distress and necessity may all be pleaded, closing the window of opportunity for the claimant State.
III. A Third Avenue?
Non-State actors, or States, parties to the Liability Convention may use domestic legal systems to access compensation for damage by space objects. However, a State or its nationals must pursue its claims in only one system, i.e., international or national avenues, but not both.
In theory, compensation for damage can be accessed through tort law. In practice, however, there are serious limitations to relying on domestic legal systems. One limitation is that legal concepts of harm and damage are not uniformly defined and applied across different legal systems. It may be challenging to fulfill the legal and procedural requirements to establish or demonstrate a right to relief under different national law systems. For instance, given that outer space activities are highly technological by nature, it may be difficult for an individual to prove causation, fault, or establish a standard for a duty of care regarding wrongful conduct when required to do so by national law. Moreover, there can be additional difficulties in determining the proper forum, plus challenges with recognition and enforcement of foreign judicial awards, all of which contribute to bureaucracy, the high cost of litigation, and delayed resolution of disputes.
IV. Illustrative Cases
Lessons from the Cosmos 954 incident have had a guiding effect on how African States and their citizens can obtain compensation for loss and damage incurred by space objects of other countries. This can be illustrated through two recent incidents of destruction of property caused by space objects in Eastern Africa. In May 2023, debris believed to be parts of a SpaceX satellite fell on parts of western Uganda, damaging property and unsettling residents who witnessed the event. Ugandan authorities conducted an operation to recover and examine the debris and assist the affected persons. Ugandan agencies concluded their investigations in November 2024, confirming that the fragments were parts of a defunct human-made space object, most likely belonging to SpaceX, given the launches the company had conducted at the time of the incident.
Weeks after the Ugandan report, fragments believed to be parts of a rocket crashed in southern Kenya on 30 December 2024. The Kenya Space Agency determined that the fragments were part of a launch vehicle. Whereas investigations are still underway, it has been widely reported in the media that the debris is part of a rocket launched by the Indian Space Research Organisation (ISRO). However, it is critical to note that the Kenya Space Agency’s investigations are still ongoing and that they have yet to identify the launching state officially.
Assuming that SpaceX and ISRO were indeed the responsible space actors, how can the citizens and governments of Uganda and Kenya claim compensation for the losses incurred? Venturing beyond Earth is inherently risky and creates the potential danger for destructive outcomes to nations, humans, and their property both on Earth and in space. Thus, as seen, international space law has evolved to create general and specific rules and principles which guide how damage caused by space objects can be resolved. These rules and principles apportion liability to compensate those affected when space activities result in loss of life and/or destruction of property.
However, these two cases illustrate the need for a more inclusive international system for resolving damages caused by space objects to allow States not signatories to the Liability Convention to access similar remedies. In the Uganda case, the US, where SpaceX launched its space object, has ratified all three space treaties. Uganda, on the other hand, has only ratified the Outer Space Treaty and was not a party to the Liability or Registration Conventions. This means that Uganda cannot claim against the US under the Liability Convention but can rely on either the Outer Space Treaty, general international law or US national law to access remedies for loss that occurred. Uganda may seek compensation from the US through its diplomatic channels outside of the Liability Convention. In turn, the US government may, under its national regulations, recover from SpaceX the compensation paid. Supposing the US does not entertain Uganda’s claims, Uganda may seek redress under general international law through the International Court of Justice or Permanent Court of Arbitration. However, suppose further that Uganda decides not to pursue any claim against the US, then Ugandan nationals may need to seek redress in the US administrative and judicial bodies.
The case is different for Kenya. India has ratified all three relevant space treaties, while Kenya has ratified the Outer Space Treaty and the Liability Convention. Kenya can, therefore, access remedies under the Liability Convention– although it may not avail itself of the advantages under the Registration Convention.
In determining the State to which the space object belonged, Kenya and Uganda’s non-ratification of the Registration Convention impedes them from relying on the Convention to obtain assistance in identifying the State. Nevertheless, Kenya and Uganda can rely on the 1961 UN General Assembly Resolution 1721 (XVI) B to access assistance from the international community to identify the space object (or its parts). The Resolution obliges States under its customary international law status to inform the UN Secretary-General about the launchings of objects into orbit or beyond. Information furnished to the UN Secretary-General is publicly accessible hence Kenya and Uganda who have no access to treaty benefits still have a recourse.
While Uganda and Kenya have avenues for recourse, their non-ratification of some space treaties creates a burden for the States and their nationals to rely on stricter and more complex systems of general international law or national law to obtain compensation for damage caused. Perhaps the most immediate lesson other African States can draw from the experience of Uganda and Kenya, as well as Cosmos 954, is that international space law frameworks offer a more comprehensive system of claiming liability for damage caused by space objects. Given that numerous African States harbor serious ambitions to become space-active States–and are increasingly investing in national and regional space programs–, it is important that the States commit to international space law frameworks, as well as impose domestic obligations like obtaining insurance for their activities, as a way to eliminate unnecessary burdens.
Moreover, African States should become more active in the international space law community through participation in fora like United Nations Committee on the Peaceful Uses of Outer Space. Not only would this enable African States to foster partnerships with established space-faring nations and organizations, leading to shared knowledge and better experiences on how to manage space-related issues. However, it would also enable the States to build capacity and reputation to influence State practice and norm formation, particularly on unsettled questions under the international space law framework.
Finally, the Uganda and Kenya incidents emphasize the importance of public awareness and preparedness for damage caused by space activities. The fears among the Ugandan and Kenyan populations caused by falling debris would arguably be lessened if populations had access to knowledge and information. African governments with the support of international partners should, therefore, intensify public engagement through education campaigns to inform nationals about the nature and benefits of space activities and ensure that even rural communities have basic knowledge about these activities.
V. Conclusion
The current international space regime which creates a framework to guide the conduct of space activities needs to be updated to reflect the modern context of space activities conducted by numerous space actors. The legal structure established to settle claims for damage by space objects on Earth was created in an era when a few States dominated outer space activities. Increasing levels of space activities by emerging space nations and private companies who do not subscribe to the same international legal framework have created a fragmented application of rules and processes for settling claims for damage by space objects. The danger in the fractured application of rules lies in relying on incompatible rules and principles to resolve similar scenarios of damage, which will lead to incongruous laws and precedents. This uncoordinated application of law is counterproductive for the orderly development of space activities. In as much as space activities have increased and space technology has improved, the space industry is nascent; hence, the systematic development and application of rules and principles is required for the industry to reach maturity.
Dr. Arnold Agaba, DCL (Air & Space Law) and Chair of the Research Group on Air and Space Law in Africa, Institute of Air and Space Law, McGill University.
This commentary represents the personal views of the author.