Australia: Who is liable for falling space junk?

In late April 2023, a SpaceX Starship exploded over South Texas shortly after launch, causing particulate matter to rain down on the nearby town of Port Isabel. The failed launch is also reported to have broken windows and caused other damage to homes and businesses. In the wake of the launch, environmental and cultural heritage groups have reportedly filed legal proceedings against the US Federal Aviation Administration in respect of the environmental impact of falling dust and debris on endangered species in the Boca Chica area.

Such events are becoming increasingly common, as humankind continue to explore and utilise space as a means of connecting and sustaining life on planet earth. Consequently, the growing number of discarded items from launches and orbiting in outer space, known as "space junk" poses ever-increasing risks to human life, property and the environment.

During 2022 alone, there were 186 orbital launch attempts from Earth globally, with 180 of those launches reaching orbit.¹ According to NASA there are presently about 100 million pieces of debris orbiting the earth, 23,000 of which are larger than a softball.² Travelling at speeds of around 15,700 miles per hour (equivalent to around 25,000 kilometers per hour), these pieces of space junk could pose a significant risk to human life, property and the environment if they were to fall out of orbit, and make contact with the earth's surface. This risk is not all that remote, as illustrated by the large pieces of space debris that fell in the Snowy Mountains region of NSW as recently as 2022.³

In this bulletin, and as part of our growing Space Law practice, we explore some of the mechanisms under Australian and international law which govern liability for falling space junk.

Statutory Framework and Treaty Obligations

Australia's framework around liability for falling space debris has its origins in our treaty obligations.

Article VII of the Outer Space Treaty of 1967, to which Australia is a party, provides that:

Also in 1967, the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space was negotiated (Rescue Agreement), which provides that states shall, upon request, provide assistance to launching states in recovering space objects that return to Earth outside the territory of the launching state.

Article 5 of the Rescue Agreement provides that if a state discovers a space object or its component parts has returned to earth in territory under its jurisdiction, that party shall notify the launching authority and the Secretary-General of the United Nations. Relevantly, by reason of Australia's position as a signatory to the Rescue Agreement, these notification obligations were activated in 2022, after the discovery of space debris in the Snowy Mountains.

In 1972, these concepts were further developed in the Convention on International Liability for Damage Caused by Space Objects (Liability Convention). Article 2 of the Liability Convention provides that a launching State shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft, and liable for damage due to its faults in space.

"Launching state", in this context, includes:

• a state from whose territory or facility a space object is launched
• a state which launches or procures the launching of a space object.

In addition, Article 5 of the Liability Convention provides:

In 1974, the Convention on Registration of Objects Launched into Outer Space (Registration Convention) was negotiated which further affirmed the principles established in the Liability Convention. It also provided for the establishment of a central register of objects launched into outer space, and the launching state(s) of each object, to be maintained by the UN Secretary-General, to assist in the identification of space objects.

In 2020, Australia became a signatory to the Artemis Accords⁴, being a common set of declaratory principles to enhance the governance and use of outer space. The Artemis Accords do not specifically address or supplement the existing treaty obligations as to liability, except to affirm the importance of compliance with the Outer Space Treaty and Liability Convention.

However, section 12 of the Accords titled "Orbital Debris" contains a commitment to mitigate orbital debris and limit, to the extent practicable, the generation of new, harmful debris by taking appropriate measures including post-mission disposal of space structures.

The Space Act

From a statutory perspective in Australia, the Space (Launches and Returns) Act 2018 (Cth) (Space Act) reflects the principles of the Outer Space Treaty 1967, including the principles of liability for damage caused by space objects or space debris.

The Space Act provides that a person who launches a space object from Australia or under the jurisdiction of Australia is liable for any damage caused by the space object or any debris resulting from the launch (Section 63(1)).

For launches conducted by overseas nationals, the "responsible party" for the return of a space object is liable to pay compensation for any damage the space object causes to a third party (section 71).

Significantly, the Space Act also provides that:

• The provisions for liability apply irrespective of whether the damage occurs in space, inside Australia or outside it (section 63(3));
• The responsible party for a launch or return of a space object is liable to pay compensation for any damage caused by its space object to a third party on earth or as a result of damage to aircraft in flight (section 67(1));
• "damage" in relation to a space object means loss of life, personal injury or other impairment of health, loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organisations (section 8);
• In order to obtain a launch permit, the holder must be insured against any liability that the holder might incur under the Space Act to pay compensation for any damage to third parties that the launch or return causes (section 48(1)). Currently, the minimum required insurance is $100 million, although there are exceptions to this figure⁵; and
• The Commonwealth is liable to pay compensation to any Australian nationals for damage in excess of the insured amount, up to $3 billion (section 69(4)).
• The Federal Court and Federal Circuit and Family Court of Australia have jurisdiction to hear and determine actions for compensation for damage to which these laws apply (section 72).

A range of licenses and permits are relevant, depending on the object being launched and the location of the launch. Among others, these include launch facility licenses, Australian launch permits, Australian high powered rocket permits and overseas payload permits.

What claims could be made?

Theoretically, if a person or entity is responsible for launching or controlling the space debris, they could potentially be liable under Australian law for harm or damage caused:

• pursuant to the Space Act
• in the tort of negligence
• for trespass to person or property
• in very serious and rare cases, involuntary manslaughter by criminal negligence.

Additionally, it is conceivable that entities responsible for space debris polluting the Australian environment could be liable for environmental crimes.

The international position

While the Outer Space Treaty 1967 provides general principles of liability for space activities, individual countries have adopted their own laws and regulations to manage liability for space debris.

In the United States, under the Commercial Space Launch Competitiveness Act 2015, the liability of commercial space companies is limited to $500 million. For damages above that, the United States government will indemnify the company, up to about $3 billion. Currently, this limitation will be in place until 2025.

In Europe, the European Space Agency (ESA) has developed guidelines and standards for the management of space debris. The ESA also operates a Space Debris Office that monitors space debris and develops strategies to mitigate the associated risks.

In Japan, the Space Activities Act 2016 imposes strict liability on space launch operators for any damage caused by a space object or debris resulting from a launch. That is, the injured third party does not need to prove negligence. The act also requires persons who launch an object into space to secure payment of any damages arising from the launch, such as purchasing space liability insurance.

Where to from here?

As humankind increase our daily reliance on space, and place an increasing number of satellites, rockets and other objects into orbit above earth, it is inevitable that space debris will come into contact with earth's surface, posing a risk to human life, property, and the environment.

Much of Australia's space liability legislation remains untested from a judicial perspective to date. However, we expect to see an increase in litigated cases in this area over the next decade, as humans begin to deal with the consequences of falling space debris and the damage it causes in their day-to-day lives.

Footnotes

¹ McDowell, Jonathan, Space Activities in 2022, 17 January 2023 space22.pdf (planet4589.org)

² Space Debris and Human Spacecraft | NASA

³ Space junk potentially found in NSW Snowy Mountains paddocks - ABC News; More Snowy Mountains space junk found amid visit from Australian Space Agency - ABC News;

⁴ Artemis-Accords-signed-13Oct2020.pdf (nasa.gov)

⁵ Space (Launches and Returns) (Insurance) Rules 2019 (Cth) section 6.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.