“Whose Mess is it, Anyway?”: Reflections on Ram Jakhu’s 2010 Analysis of the Iridium-Cosmos Collision
By Naman Anand
Professor Ram Jakhu’s 2010 article “Iridium-Cosmos Collision and Its Implications for Space Operations” was highly relevant and well regarded upon publication—but how relevant is it today? Looking back at the article fourteen years later, this response seeks to present a fair criticism of the piece and provide innovative solutions to some of the concerns Jakhu highlighted. In particular, Jakhu underestimated numerous risks that raise queries across space law on topics such as liability, dispute redressal, environmental and health concerns, and the rights of the Global South.
In the article, Jakhu references the Corfu Channel and Jamaica case doctrine to argue that lack of knowledge about an issue does not absolve a party of responsibility. He further points out that the Jamaica case doctrine separates the concept of fault from inherent malice. Instead, fault can more broadly connect to the act or omission conundrum: the dilemma in whether to classify a refusal to take action as an action in and of itself. Yet, Jakhu goes on to state that persistent objection to leaving dead satellites in space has been negligible.
This discrepancy between legal doctrines of responsibility and the actual behavior of spacefaring entities suggests a collective negligence or acquiescence to potential risks in space operations. In space, the idea of no-fault liability (which has been acknowledged yet ignored by scholars in practice) confronts the broader jurisprudential quandary that is the complex interrelationship between liability and responsibility under space law. The concept of no-fault liability is necessary because outer space is extremely fragile and areas, which offer “premiums” (akin to corner lots in real estate) that are limited. Debris tends to remain in orbit for 100-250 years, and an increase in debris heightens operational risks. Because no-fault liability is highly stringent and involves severe penalties, it is ideal for regulating outer space.
The importance of accountability at the individual state level hints at the danger of labelling outer space as a commons to placate the Global South and other non-spacefaring nations. Doing so tempts the tragedy of the commons and risks states reneging on the idea of accountability to obviate their liability. Thus, it is vital that non-spacefaring nations join the conversation around space operations and insist they be included in space governance regimes. In a dystopian scenario where satellite operators gain the right to abandon a satellite, states and private companies would not face any consequences for increasing operational risks in a highly limited and fragile ecosystem.
In addition to governance, establishing a regime for space navigation is essential since "flying blind" is akin to the somewhat macabre scenario of having vehicles (some without numbers) drive in thick fog on a public road without knowing whether there are any lanes, turns, crosswalks, lights, or even other vehicles. I would go a step further than Jakhu and suggest the creation of an expert-led draft Convention for the unification of space signals, similar to the 1931 Geneva Convention for the Unification of Roadway Signals. Possible International Civil Aviation Organization guidelines can then supplement these, as Jakhu suggests.
Furthermore, Jakhu made two oversights in the paper. Firstly, overlooking the 1963 Vienna Convention on Civil Liability for Nuclear Waste (VCCLNW) was a blunder. If Jakhu says, "nécessité fait loi," (“necessity knows no law”) he would certainly agree that nécessité provoque innovation dans la loi (“necessity leads to innovations in the law”). Law is dynamic, and it is essential to realize that one prima facie unrelated arc of law can impact another arc of law positively—take, for example, the idea of using anti-gambling law to prevent dogfighting and promote animal rights. It is vital to assess how numerous clauses and definitions in the VCCLNW, particularly that of "person" and "nuclear installation," acknowledge the role of private contractors and do not create a siloed distinction between earth and space, which will become thinner if radioactive space waste-laden satellites reenter the earth's orbit, or worse, crash. This interesting proposition provides the hypothesis that the VCCLNW can be reinterpreted and used as a weapon in the fight against space debris. Secondly, the article did not address the role of the 2001 Draft Articles on State Responsibility (ARSIWA). The ARSIWA must be considered as lex specialis (if two laws govern the same subject, the specialized law shall override the general law), and bolsters the extant provisions of the Liability Convention if subjected to the doctrine of harmonious construction (a statute must be read as a whole, and its provisions must be interpreted harmoniously so as to avoid any conflict) vis-à-vis domestic law.
Jakhu also overestimated the efficacy of the Space Data Association (SDA) and Space Satellite Navigation (SSN). Fourteen years after the article’s publication, the SDA covers barely 763 of 9400+ satellites, a coverage rate of barely 8 percent, which is set to decrease since LEO satellite installation is increasing at a compound annual growth rate of 13.61 percent. In the case of SSN, NASA's 2021 report reflects the same meandering anecdote about insufficient data. Thus, data and resource pooling for space traffic management is essential.
It brings an even more radical hypothesis to the fore: the constantly increasing risk of the Kessler Syndrome, a scenario where the density of the objects present in Lower Earth Orbit (LEO) is so high that a collision between two objects (for example, a satellite and debris) would generate more debris. This could lead to a cascading effect, similar to a chain reaction, that would exponentially increase the amount of debris in outer space. This would create a situation where the operational risks for satellites will experience an astronomical increase, and it would harm space exploration by potentially rendering certain geographical locations in outer space too unsafe to use or explore for generations altogether. In order to avoid such a dire situation, it is necessary to create an international agreement to cap the number of satellites in outer space at a given time. The closest example that comes to mind is the Montreal Protocol of 1987, where the norms regulating chlorofluorocarbon emissions crystallized and formed in customary international law much more rapidly than the usual decades of concerted state practice—a phenomenon known as instant custom.
Three cardinal concepts broadly emanate from Jakhu’s text: polluter pays, absolute liability, and transboundary harm. The polluter pays and transboundary harm principles were first addressed in the infamous Trail Smelter arbitration case and have crystallized into norms of international environmental law. The second principle is largely rejected in the 1979 Liability Convention. Jakhu rightly points out a pressing need to establish a mechanism to quantify, assess, and disburse such damages. The cardinal problem that remains is the geopolitics surrounding an independent agency to conduct these actions, as opposed to a state-versus-state scenario, because spacefaring states would likely be reluctant to accept such a regime, bringing us closer to a dystopian scenario. This raises the question: how do we assess transboundary harm in a region that knows no boundaries?
Another ancillary issue is the sheer proliferation of satellites and the financial risks this proliferation poses for operators and states. In infrastructure law, a key concern is the rule of competing roads, whereby two roads are constructed within a close radius, leading to a loss of toll revenue for all operators. To analogize—what happens to satellites that are redirected due to other satellites, and consequently suffer from unnecessary costs of spent fuel and reduced project life? How do such investors, operators, and other intermediaries claim compensation? It is crucial to note that a significant portion of such projects are funded with taxpayer money via public sector undertakings or Joint Venture/Consortia with significant government stake, such as the Indian Space Research Organisation. It also brings us to the radical possibility of Article VII of the OST being read with Article 11 of the Moon Agreement, and BEPS Actions 13 and 14 in a manner that would allow individual taxpayers to "pierce the corporate veil" and sue sovereign states (even via PSUs, JVs, or SPVs) for recovery of taxed money if it is used to fund satellites that are later redirected or reduced in project scope due to navigational safety concerns.
An intriguing proposition is creating a mandatory dispute resolution system similar to the United Nations’ World Intellectual Property Organization Patent Dispute Resolution system, where a vast board of experts resolve patent disputes between parties with set timelines and possess the right to approach parallel forums, such as domestic courts. A similar system can, with suitable modifications, include sovereign states, independent quantification experts as impartial advisors, and private contractors. Such a system could resolve a host of issues such as liability and registration convention violations and Article 9 penalties, competing satellite claims, data sharing and privacy issues, or civil liability claims in line with the polluter pays principle.
With an exponential rise in satellite launches and other outer space activity comes the responsibility to do so in a safe, sustainable, and responsible manner. Jakhu’s ideations, while lauded at the time, are now obsolete in a world where the distinction between public and private actors is thin. Thus, the existing regimes of public international law are crying out for a sea change to protect the rights of the Global South and the future generations—which may see more sophisticated and targeted technology and increase in their spacefaring capabilities. Until the questions surrounding a satellite cap and no-fault liability are answered, with a dispute and liability claims and redressal system worth its salt to boot, we cannot ensure that the Global South and future generations have a clean slate to begin with, and neither shall we be able to provide them an arena where not all corner lots are taken.
Naman Anand is an LLM Candidate at the New York University School of Law. He graduated with honors from the Rajiv Gandhi National University of Law in India. Naman is a recipient of the SoEULawSchool Scholarship, SDURI Fellowship, LAHRI Fellowship, and (twice) the United Nations' Millennium Fellowship. He is Founder and Managing Editor of the Indian Journal of Projects, Infrastructure, and Energy Law, an open-access, student-led initiative recognized as one of the world's top five blogs for energy law by Feedspot. Naman received the FIDIC APAC Future Leaders Forum's Special Commendation Award in 2023. Naman writes actively on issues at the intersection of public international law, ESG, and development finance.
“spac0556” is by NOAA Photo Library and is licensed under CC BY 2.0.
