Cosmos 954: Relevant to the Deorbiting NRO Spysat

January 28, 2008 at 4:50 pm | Posted in Space Law, Space Law Current Events | Leave a comment

by Joanne Irene Gabrynowicz and the space blog faculty

The Liability Convention contains two different legal standards: one if the damage occurs in space another if it occurs on Earth or to an aircraft in flight. Cosmos 954 showed that the application of the appropriate legal standard and proving what each standard requires is not clear-cut. Cosmos 954 was a U.S.S.R radar ocean reconnaissance satellite with an onboard nuclear reactor. Its reactor did not separate and stayed onboard until the satellite hit a section of the Northwest Territories of Canada. Depending on what happens with the current situation in which a spy satellite is deorbiting and returning to Earth, Cosmos 954 may become relevant.

In the case of Cosmos 954, the U.S.S.R. blamed a mid-space collision and said that the satellite had “ceased to exist” after reentry. Canada blamed a faulty motor and said it found charred pieces. The U.S.S.R was attempting to locate the causal event of the damage as having occurred in space while Canada was attempting to identify it as having taken place on Earth. This is because the location of the event determines whether negligence or strict (absolute) liability applies. If the former, evidence of fault is required and involves a higher legal standard Actual evidence is also more difficult to find and prove. If the latter, a lower legal standard is involved and no evidence of fault is required. Evidence may conceivably be more practically gathered. It is reasonable to expect similar positions being taken under similar circumstances.

It is also reasonable to expect, like Cosmos 954, whatever happens in the case of the deorbiting spysat, the case will never see the inside of a courtroom. Assuming IF the satellite, or parts of it, hit a territory and that the territory upon which the spysat lands belongs to is a signatory of the Liability Convention, both that signatory and the U.S. will want to settle through diplomatic negotiations: an option also provided for by the treaty regime. This allows the parties to control the future precedent-setting value of the case. In Cosmos 954, a Formal Protocol was reached in 1981 that contained no express acknowledgment of legal liability but also provided for $ 3 million payment — approximately half the amount of the original claim.