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The related recent question Which institution regulates rocket launches of all countries? was closed as it is considered as already answered 7 years ago.

I would like to submit the following scenario to test whether both questions referred were satisfactorily answered. The scenario is that a country’s rocket crashes into another country’s satellite, say because said satellite has (or presumably has) made a recent maneuver that was not announced. We will assume that:

  • The incident occurred in the “outer space”.
  • "rocket" is not "missile" (not a weapon)
  • Both parties may be faulty of negligence but not bad intention.
  • In good faith, both parties would like to settle the dispute before a neutral and appropriate body.
  • That all other space-using states want this scenario to not repeat.

Who has jurisdiction and which Law?

Do you think the previous answer covers my question?

EDIT-1: The purpose of this edit is to clear the objection that the scenario is flawed because

There are lots of spy satellites in orbit. The operators of spy satellites do not in general announce where those satellites are, let alone announce their orbital maneuvers

To make a parallel and generalize this line of argument, if it is accepted that there are users of the road that are entitled to ignore the “rules of the road”, what is the purpose of having agreed rules to begin with? Say, the rule is “all cars must have their light on at night”. But if we add “Nevertheless, some are entitled to not follow this rule”, then does the rule still make sense? If there can’t be rules, then the question of “regulation”, “authorization”, “arbitration”, ... is indeed moot.

However, we can’t accept this principle that says, because it is unavoidable that there is a category of users that nobody can regulate, the World must continue to operate in a lawless state of affairs. Because then, we would not have an IMO (International Maritime Organization) with its body of law to regulate Safety, Protection of environment, Exploitation of resources of the Sea. We would not have the ITU-R to regulate access to resource by satellites. We would not be able to say, if there are interferences between SpaceX and OneWeb, which constellation is protected and which is at fault. If there are interferences between a US-authorized constellation and a Canadian constellation, would these countries follow the resolution process described in the Convention on International Liability for Damage caused by Space Objects? And if they do, would China, Russia, India, the EU … accept as “law” the principles agreed by an ad-hoc commission set-up by US and Canada to resolve their bi-lateral disputes?

The answer is self-evident. And therefore, the objection above can not dismiss the validity of my scenario. --End EDIT1 --

EDIT2: I add this long Edit to argue that the Liability Convention DOES NOT answer my question (and the previous related questions). At least, not fully.

Recall that we are looking for an institution which can litigate the damages after a collision between a rocket and a maneuvering satellite belonging to two states, respectively. By “institution” is meant an international body, which either has jurisdiction, or which has the power to decide whether or not is has jurisdiction to deal with a particular case. The men and women sitting in this institution must have indisputable knowledge, reputation and integrity. States must agree on this before hand, not when a case has occurred. Examples of such bodies could be the International Court of Justice (ICJ), the Permanent Court of Arbitration (PCA), the International Tribunal for the Law of the Sea (ITLOS), etc…

The opinion expressed by an answer (that I disagreed with) is that:

What it [the Liability Convention] can and does do is provide the PROCESS used to determine allocation of liability and damages. We know the questions to ask, we know who will ask them, and we know how those answers (which depend on the facts of an incident) will then translate into a resolution. That's how law works. It doesn't tell you in advance who will be liable here anymore than it will with a car crash; it depends on the law applied to the facts.

So, let’s examine that PROCESS. The first thing to note is Art. III:

In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.

Note the onus to prove fault, unless the damage is on Earth. Note also that the Convention is conspicuously silent on the definitions of what constitute a fault. This amounts to a law of the roads saying: there is no definition of faulty behavior on this road. You must know the risks when using the road.

But let’s still assume that the involved states follow the Convention’s Art. XIV and XV which read in part:

Art. XIV: If no settlement of a claim is arrived at through diplomatic negotiations as provided for in article IX, … the parties concerned shall establish a Claims Commission at the request of either party.

Art. XV: 1. The Claims Commission shall be composed of three members: one appointed by the claimant State, one appointed by the launching State and the third member, the Chairman, to be chosen by both parties jointly…

Imagine that you have an accident and the law of the roads says: set-up an ad-hoc commission with the involved party to determine who is at fault.

What is even more problematic is that the Convention also says (Art. XIX alinea 2):

The decision of the Commission shall be final and binding if the parties have so agreed;

Hey, you are allowed to exclude before hand any binding decision that may be rendered by the commission you agreed to set-up (this, after the facts) to determine who is at fault, knowing well there is no clear definition what a faulty behavior is and which standard of due diligence you have to observe. What a paradise for lawyers the Liability Convention is!

--end of EDIT2 --

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  • $\begingroup$ "Forsees" = "predicts." I think you meant to ask which institution will arbitrate the dispute, or maybe something else. I'm pretty sure you didn't mean "foresees." $\endgroup$
    – JRE
    Jun 17 at 8:32
  • $\begingroup$ @JRE, it's a typo, I meant "oversee" but your suggestion is better. $\endgroup$
    – Ng Ph
    Jun 17 at 8:48
  • $\begingroup$ This question is flawed. There are lots of spy satellites in orbit. The operators of spy satellites do not in general announce where those satellites are, let alone announce their orbital maneuvers. $\endgroup$ Jun 17 at 14:33
  • $\begingroup$ What happens in the US is that launch providers ask USSPACECOM whether it's a good idea (or not) to launch at a planned time and into a specific orbit. USSPACECOM will say yes or no. They sometimes say "no", with no explanation. $\endgroup$ Jun 17 at 14:37
  • $\begingroup$ @David Hammen, I am struggling to find out whether you tried to show that the scenario is flawed or my questions are flawed. Your second comment is off-topic, imho. $\endgroup$
    – Ng Ph
    Jun 17 at 17:26
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I'm going to assume here that both states are parties to the Liability Convention (see page 14 of that pdf) ("Convention"), which is likely since most spacefaring states are currently parties. That Convention pretty much answers your questions, so I'll summarize.

First, you say that both parties may have been negligent, but that no one intended for this to happen. That's a useful starting point, because Article III of the Convention says that for damage caused in space, no one has to pay unless there is "fault."

If a country believes that their space object was damages due to the fault of another country, they are supposed to present a claim for damages to the other country through diplomatic channels. See Article IX.

Article XII sets out the criteria for establishing damages: "The compensation which the launching State shall be liable to pay for damage under this Convention shall be determined in accordance with international law and the principles of justice and equity, in order to provide such reparation in respect of the damage as will restore the person, natural or juridical, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred."

If discussions through diplomatic channels are not successful, the states "shall establish" a claims commission at the request of either state. Article XIV. Who is on the commission, how it works, etc. is all set out in the Convention. The states need to agree about whether the decision of the commission will be binding or merely a recommendation.

When deciding damages, the commission would use the criteria set out above. That's the law they would apply.

One interesting and open question is what the standard for "fault" would be in the first place. That is (in my opinion) one of the most pressing areas of space law. What practice you would look at, how modern it would need to be, etc. would have to be hashed out.

I've left out a lot of details, but you can read the Convention for everything.

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  • $\begingroup$ yes we can restrict ourselves to the case that both are parties to the Convention. I have the impression that you consider that pleading for "negligence" exempt a party from being "at fault"(?). If there is indeed absence of law that can consider as fault, when you don't notify, or you "forget" to notify, or you don't notify on time, or you notify with incorrect information, etc... I can's see what a Claim Commission is set-up for? $\endgroup$
    – Ng Ph
    Jun 17 at 16:54
  • $\begingroup$ I'm not sure I understand your comment, but generally speaking acting with negligence would be fault. $\endgroup$ Jun 17 at 19:50
  • $\begingroup$ I was referring implicitly to your 2nd para, which somehow mislead me. Anyway, I think we are in agreement on this point (negligence is fault). Broadly, we also agree that the most critical thing is the absence of a "space highway code". If I am taking my car out of my garage and hit another car on the road, no doubt I am at fault. However, if that car was circulating w/o light at night, the situation is different. If after being hit, it runs into and kill a kid walking on the curb, I will argue to a judge that I am not liable for this death ... $\endgroup$
    – Ng Ph
    Jun 17 at 20:55
  • $\begingroup$ And therefore, in the absence of the rules to determine who is at fault, how can we conclude that the Convention answers "pretty much" my question (and the previous two )? If we don't have internationally agreed rules, nobody can regulate the states. If nobody can regulate, nobody has an authority to approve a launch by a state. If nobody has authority to enforce rules, nobody can arbitrate a litigation. Is there a flaw in this reasoning, from a lawyer perspective? $\endgroup$
    – Ng Ph
    Jun 19 at 16:14
  • $\begingroup$ The flaw in your reasoning is that you expect the law to provide the full answer in advance of facts. It can't - and won't. What it can and does do is provide the PROCESS used to determine allocation of liability and damages. We know the questions to ask, we know who will ask them, and we know how those answers (which depend on the facts of an incident) will then translate into a resolution. That's how law works. It doesn't tell you in advance who will be liable here anymore than it will with a car crash; it depends on the law applied to the facts. $\endgroup$ Jun 20 at 15:07

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