Proceedings of the Workshop - United Nations Office for Outer ...

EXPANDING GLOBAL NAVIGATION SERVICESunavailability o f GNSS signals, could be subsumedunder a provision such as Article 2 of the LiabilityConvention.175A less cumbersome regime should be devised thatempowers aggrieved objects of international law to beable to successfully intiate actions against states.Apart from cases o f jamming and intentionalinterference, there are situations where a degradation ordisruption of the navigation signals or data error couldresult in some form o f damage to aircraft, passengersand to persons and property on the surface of the earth.These are cases which could fa ll under the regime ofspace law. Activities involving the exploration and useof outer space, regulated in the Outer Space Treaty arealso governed by a detailed regime under the LiabilityConvention. The Liability Convention establishes anabsolute liability regime for the launching state when aspace object causes damage to persons and property onthe surface of the earth or to aircraft in flight. The mostrelevant provision of that Convention is Article II whichstates:“A launching State shall be absolutely liable topay compensation for damage caused by itsspace object on the surface o f the earth or toaircraft in flight.”Difficulties with this assertion is to establish thefollowing:1. That a GNSS satellite can cause damage asperceived under Article II2. That the damage in question is caused byGNSS Satellites3. That the claimant can indeed claim under theLiability ConventionO f these, I will focus on the first two and simplysay in relation to the last that locus standi is notgranted to natural persons under Liability Conventionand the claims procedure is burdensome.If GNSS and other satellite applications willcontinue to be accepted, it will be on the condition thatlegal certainty exists not only in relation to causationbut also in relation to claimant aspects. Each claimantshould be able to seek satisfaction under such a regime.Regarding the first two issues, causal connectionbetween the damage and the space object is the mainelement to be established by a claimant. The launchingstate is absolutely liable to pay compensation only whendamage is "caused by its space object102. RegardingGNSS signal liability, it will not be enough to establisha causal connection between any space object and thedamage. The object must without doubt be a GNSSsatellite belonging to that state against which the claimhas been brought. In the provision of GNSS signals,two institutions have been identified, the primaryprovider and the secondary provider. The claimant mustbe categorical about which of the primary or secondarysystems caused the damage. In establishing the linkagewith a primary signal satellite, it may be advantageousif the secondary signal providers also suffered similardamage simultaneously, or observed the cause of thedamage.The main issue in establishing causation is onwhich test to be used. While some writers like prefer touse the test o f “direct hit” in my view the Conventiondoes not support such an approach. Neither does thetravaux preparatoires nor a commonsenseinterpretation o f the treaty. The correct test to beadopted in establishing the causal connection should bethe proximity test.The difference between the direct hit test and theproximity test is that the first will want to establish aphysical connection between the aircraft in flight or theship on the sea and the GNSS satellite while the otherwould want to establish whether a collision or crashcould be a normal consequence of the type o f failure toreceive GNSS signals under critical conditions ofinstrument flight rules? This is a technical questionwhich may finally need technical and systemengineering expertise to settle authoritatively. It may102 B.A. Hurwitz, Space Liability for Outer Space Activities inAccordance with the 1972 Convention on International Liabilityfor Damages Caused by Space Objects (1992), 31.