Since I learned that EnviSat is the biggest single satellite debris risk I wanted to know more. For example: what happens if it would cause a damage and who would likely be held liable? When I tried to figure it out it wasn’t as easy as I had anticipated. Let’s have a look!
Liability according to ESA
ESA itself states that [1] “ESA is free to launch space objects but […] has to assume responsibility and liability for its activities, the latter jointly and severally with those of its Member States which are parties to the Liability Convention.”
On first glance that looks nice but if you look more closely this sentence actually says that ESA does not take liability but its member states do. Why does ESA not take it directly?
To understanding the legal responsibilities we need to look into the Outer Space Treaty [2] and the Liability Convention [3].
What is the outer space treaty?
The outer space treaty (OST) which was presented to UN in 1966 is of the very few international legal regimes in which states are organizing their affairs in outer space. You can find the source at the United Nations Office of Outer Space Affairs (UNOOSA) [2]. To figure out who can be held liable it is first important to figure out who is a subject to OST.
Article IV outer space treaty:
A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object
To my understanding this defines ownership under the assumption that those who launch (and then register spacecrafts) are nation states.
What is the liability convention?
The liability convention is the second international treaty on space after the outer space treaty (OST). The liability convention came into power in 1971 [1]. The liability convention defines under which circumstances somebody can be held liable by a space object.
Ok, let’s dissect this:
Who (blue): if liability arises then the launching state is liable for any damages
by Whom (yellow): damages caused by space object of a launching state
Absolute liability (green): absolute liability only to object on earth or airplanes flying (red)
Limited liability (purple): liable only at fault
While the liability on earth is straight forward and absolute, liability in space is much more complicated. The claimant would need to prove fault from the hands of the launching state.
What is fault
So if the damage does not happen on earth we need to prove fault to have any chance for getting a compensation. I have spoken to my friend Narayan Prasad who has a degree in space law and who consequently knows more than me in the field of space law and he said fault would be tedious to prove and suggested to reach out to Deepeka Jey who is an expert in the field of space law. She suggested that:
A) Fault liability regime where, to establish fault, there must be 1) a breach of explicit rules and 2) intent and negligence, and
B) Fault under ‘State Responsibility for wrongful acts’ where there is a primary obligation such as due diligence / reasonable care / standard of care. Because this obligation is not observed, a State can be held responsible and consequently liable.
She concluded that while some scholars have suggested that that option B would be the preferred interpretation, that whichever the case it will likely be in the hands of the arbitrators to decide. She also suggested that space debris law is too ambiguous and needs proper clarification of who is at fault and how to enforce the rules.
Space liability is in dire need of clarification of what is fault and how to enforce it.
I admit this is not very satisfactory but its all that the liability convention offers us at the moment. We will later return to this with the practical example of EnviSat and turn now to other definitions, such as the launching state.
What is a launching state?
Since liability is addressed to the launching state we need to figure out what that means.
The definition of a launching state (red) is rather straight forward.
who: those launch (1) or who procure a launch (2), from whose territory is launched (3)
what: a space object is the satellite and the rocket and all parts of it
Since this only makes states (who have signed the liability convention) subject to liability and ESA is not a state we need to dig deeper.
International Organisations as members to liability convention
The relevant article in this context is article 22 of the liability convention. It says that international organizations can declare compliance to the treaty and then they will be treated as if they are a launching state (red). This is only possible if the majority of the members of said organisation are members to the relevant treaties (we will look at this later).
Interestingly this acceptance of the liability convention is mandatory as member states (to the liability convention) have to make the organization declare acceptance (orange). This is very likely a provision to prevent avoidance of liability by offloading space activities into an international organization.
In such a case the organization and its members are held liable. That means you can go to the member states of the organizations but…
First you have to try directly at the organization itself. For example If you have a claim to ESA you could go to say Germany and file that claim but only after you have unsuccessfully tried to get it from ESA directly.
Multiple Launching States
As we have seen from Article 2 of the liability convention a launching state can be the one that launches the rocket or the one that is responsible (procures) the satellite. Article 5 defines that in case of multiple launching states that they are jointly liable.
You can imagine that in case of multiple launching states there would be an argument who to go to and to avoid this altogether the person with the claim can go to any one launching state (red). The launching states among themselves can then sort the thing out among themsel (green)
In above argument it is likely that the claim in full would be presented to Germany under the assumption that it is easier to get money out of them then out of India. Germany in turn could then go to India and ask for a share of the compensation. This will also happen in any other case and it is important for our initial question (who is liable for ESA satellites).
This section says that if the rocket is launched from your land than you are a launching state. Which seems to be doubling of Article I (c) ii.
Whom to get the money from?
From above articles you can see that there are likely more than one launching state in most missions and that those who have a claim can file it with any one of the launching states.
If a mission has multiple launching states, the claim can be filed at any one of those likely where it seems to be easiest to get the claim through.
So for example if a German satellite is launched on an Indian rocket then both German and India are launching states and potentially liable. My gut feeling tells me that the claim would filed against Germany (perceived easier than Indian courts) and Germany then could file a counter claim against India to get parts of the money back.
What about ESA?
We need to check a few things before we can establish whether ESA could be held responsible for any damage that EnviSat could cause in the future.
Has ESA accepted responsibility equal to a launching state? Yes, indeed.
As we know from Article XXII it is mandatory for member states of an international organization active in space to make this organization declare compliance with the liability convention as long as the majority of the member states are also signatories of the liability convention. For ESA this is the case. All but one country (Estonia) are signatories to the treaty. Consequently ESA has declared the compliance with the liability convention according to article XXII already in 1978.
That means that ESA and if ESA is unwilling or unable to compensate for damages then all ESA memberstates could be held liable. This brings me to an interesting observation, ESA has significantly extended the number of members in the recent years. So much so that the countries that have joined after EnviSat has been launched almost outnumber the countries that were there before. Considering that there are up to 6 additional countries which might seek ESA membership in the future those who are actually responsible for the EnviSat mess will likely soon be in the minority.
Dear Czech Republic, Greece, Hungary, Luxemburg, Poland and Romania, as well as other future members of ESA, are you aware that you, too will be held responsible for things that happened long before your time?
My question is therefore, are these new ESA member states even aware that they will be held responsible if in the future EnviSat, ERS-1 or any of the old Ariane Upperstages would cause a major space debris event? If not I would like to bring to attention that according to ESA rules, decision on ministerial level are taken at majority, which will soon be at reach.
I believe that the new ESA members should find legally binding rules that prevents this. So check out Article V (2) of liability conventions which will hold the solution.
I certainly would push for or put to vote that according to Article V (2) an agreement is put into place that puts responsibility for these old sins firmly in the hands of those ESA members who were back then already part of the club and have thus cause this mess. If neither of these things can be done I would rethink my participation in a organization that puts myself at risk for things that were decided long before I was part of it.
Did ESA acted in gross negligence in the Case of EnviSat? I believe yes.
Based on what I have described in my two previous articles Bonus 3-1 “Case Study EnviSat” and Bonus 3-2 “Yes we can! No we can’t” I believe there is evidence ESA has acted in gross negligence in the case of EnviSat. Here is my argument:
1) extending the satellite life beyond the design life instead of de-orbiting the spacecraft (or making sure that it is in a fail safe orbit – with <25 years) is reckless. If the satellite dies (with tanks sufficiently full to do de-orbit) but it does not happen because the satellite dies of sudden death any later space debris event is should be considered gross negligence.
It should be considered reckless to extend the life of a satellite beyond its design life if de-orbit depends on the ability of the satellite to perform a propulsive de-orbit maneuver.
2) using up all your fuel for life time extensions (after the end of design life) instead of de-orbiting which then is making de-orbiting of your spacecraft impossible (because of no fuel) is willful misconduct – at the very least gross negligence
Even if you consider the sudden death of EnviSat as bad luck, the fact that ESA used up all fuel should be considered reckless and at minimum as gross negligence
Based on this it could be argued that ESA acted in gross negligence by extending the lifetime of EnviSat beyond the nominal design life of 5 years. And by doing so using up all fuel that could have been used to de-orbit the spacecraft by lowering the perigee to 600km which would have reduced its in orbit time drastically.
ESA did all this despite knowing better!
In my eyes this is particular evident when taking into consideration that ESA have since 1989 an internal rule to reduce space debris as much as possible, are a founding member of IADC since 1993, have published their own space debris mitigation rules in 2004, have witnessed de-orbit of spot 1 in 2003, discussed the de-orbit of the EnviSat predecessor ERS-2 in 2003 (after having seen ERS-1 fail) and implemented it in 2009.
Remember that odd article about EnviSat?
The more I think about the whole situation, the more I get the feeling that the article that I found which was published in 2012 after the sudden death of EnviSat and which is so much in deviation of ESA’s normal stance on space debris, is a legal ground work to prevent ESA from being held liable. The main argument, as we remember was that ESA was not at fault for the increased risk of space debris, that EnviSat design predates risk and that once in orbit nothing could be done. The whole article is thus only smoke and mirrors as I was able to show.
ESA’s statement that nothing could be done for EnviSat looks more and more like a premtive legal defence.
The problem is that unless this concept of proper liability is introduced, then discussed and enforced I see very little incentive to change the behaviour of the players. The moral dilemma I observed – that most operators (including ESA) would not de-orbit an active satellite – will persist in part because they know it would likely not hurt them (no liability)
Behavior of the players will not change if the risk of being held liable continues to be small
My feeling is that this could change if one could establish that fault / gross negligence can be proven and therefore something is at risk. If such a case could be made (ideally before something happens) ESA (and others) could be incentivized to improve their behavior for future missions and clean up their old garbage.
What If…
Ok, lets say there has been a major space incident and EnviSat has caused harm then the decision tree is as follows:
1) Damage on ground?
Yes: then ESA is fully liable
No: ESA is liable only at fault
If I you let me play the devils advocate here, what if you are ESA and run simulations that say: there is significant risk of damaging somebody in the uncontrolled re-entry of EnviSat. On the other hand any space debris event will likely not end in a liability claim against ESA. From that perspective it could make sense to not de-orbit the satellite.
2) ESA at fault?
Yes: then ESA is liable, lets assume this is the case based on my above arguments
No: well then as somebody who was damaged would not get anything
3) Does ESA compensate the damage?
Yes: lucky you, all good.
No: if 6 month have passed you can try and enforce your claim with any of the ESA member states who are also in the liability convention.
Now that’s the theory, here is what I think will really happen
Considering that ESA is exempt from legal juridiction and execution [5] and filing a claim would even be more tedious than usual any one with a claim will likely look towards Article V (2) that says you can chose whom to present the claim, too . Then let us keep in mind that according to Article I (c) ii and Article V (3) of the liability convention the country from which the rocket is launched is a launch state…
Sorry France… its likely you who anybody will turn to first
As almost all ESA satellites are being launched by Arianespace from launch center Korou which itself is in French Guiana, means that France is a launching state for ESA missions.
So legally if you have a claim caused by an ESA satellite you can either file it with France or with the ESA. Considering the mess you will run into while filing against ESA my prediction is that almost anyone will go for France.
The question is, can you prove fault or gross negligence against France? This is tricky but my guess is that any lawyer will want to push for France responsibility inside ESA.
ESA is both stronger and weaker than one thinks. It is independent to act but is at the whim of its funding agencies.
The argument will likely be: France had its own space debris rules since 1999 [7], they actively acted and de-orbited Spot 1 in 2003 [8] and Spot 2 in 2009 [9], thus had the awareness and the know-how to de-orbit large spacecrafts. CNES experts would have been involved in the ERS-2 de-orbit discussions in 2003 (ERS-2 and SPOT1/2 share the same bus) and consequently should have been involved in the EnviSat mission discussions.
France is regularly the largest paying member of ESA and hold significant power which they should have used to convince ESA to not extend the mission beyond the design life or at least spare fuel for de-orbit.
Not doing so was gross negligence.
Since France had the power, the responsibility and the know how to push ESA for a proper de-orbit of EnviSat and yet they did not in my eyes they have acted in gross negligence. As a consequence I believe somebody who in the future has a claim from damage caused by EnviSat will likely and successfully go and file it with France.
It is in the interest of France to push ESA for de-orbiting of EnviSat and find legally binding cost sharing agreement already before an accident happent. Everything else will be messy.
Since it will afterwards be very difficult to get the money from the other ESA partners (as described with the fact that almost half of ESA member states came on board after EnviSat launch) I think it is fair to say that it is in the interest of France to push ESA for de-orbiting EnviSat and other big ESA space debris objects (e.g. ERS-1 and Ariane upperstages before 1997) and also already come to an agreement with the other big ESA players according to Article V (2) liability convention who is to pay what in case of a major space debris event.
Summary
After all this digging I can confirm ESA is subject to the liability convention (article XXII). In case EnviSat would create a damage it would likely be possible to bring forward a claim due to gross negligence of ESA. Interestingly, if ESA cannot pay all ESA members will be held liable including those who came onboard only after EnviSat was launched.
That said, it is reasonable to assume that anyone with a claim would first try to get it from France. As a result both France and the new ESA members should have a strong interest in A) de-orbiting EnviSat and B) come to a legally binding agreement of load sharing under article V liability convention.
How can you help:
This text is part of a series of articles in which the author sets the framework to start a discussion about the wrongs of the space industry. If you have experienced similar things, leave a comment. Other views and opinions are very welcome, too, as they may present a way forward. Please be kind to each other.
Disclaimer
The author’s views are his own do not represent the views of Berlin Space Technologies.
Sources
[1] ESA: What is a launching State
[4] will the liability convention stand the test of time
[5] ESA rules
[6] ESA privileges and immunities
[7] 20 years of space debris mitigation in Europe – Proceedings of the Fourth European Conference on Space Debris (2005)
[8] CNES SPOT-2 de-orbit strategy (2009)
[9] CNES SPOT-1 de-orbit strategy (2003)
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