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

the definition of “space objects” would appear to run counter to the intention of the drafters of theLiability Convention. 78 Bin Cheng further pointed out that “fragments of a space object that fallon the Earth are… given the same status as the whole object … [and] nothing suggests otherwise,or that shattered fuel tanks or flakes of paint from space objects in outer space should be treatedany differently”. 792.3. FaultThe concept of “fault” as used in Article III of the Liability Convention has differentmeanings in different legal systems. In civil law systems, fault is generally interpreted by thecourts on a case-by-case basis, while fault is often associated with negligence in common lawsystems, thus necessitating considerations of the applicable duty and standard of care. 80In practice, this discrepancy in the legal notion of “fault” in different legal systems maynot be of substantial consequence, as the facts of the circumstances in which damage was sufferedmay be res ipsa loquitur. For example, a satellite operator may be considered to be at fault if itplaced the satellite in an orbit known to be already occupied by another satellite with which it islikely to collide or if the “victim” satellite operator failed to move its satellite out of the way of aknown inert or “dead” satellite.Consequently, one of the most noteworthy difficulties in the imposition of internationalliability for damage caused by orbital debris is not the identification of the origin of the debris butrather the attribution of fault on the part of the launching States. In the context of common lawnotions of fault, it would be difficult to suggest that the launching States would be at fault as,although the risk of collisions with the generated debris is reasonably foreseeable, the launchingStates are unlikely to be able to take steps to prevent such a collision short of not launching theoriginal space object at all or to use a substantial amount of fuel to take the satellite into either asufficiently high “parking” orbit or to deorbit it back into the atmosphere of the Earth.2.4. Nuclear Power SourcesThe requirements of the Outer Space Treaty and the liability provisions of the LiabilityConvention are repeated in the Principles Relevant to the Use of Nuclear Power Sources in OuterSpace (the “NPS Principles”) as declared by the General Assembly in 1992 in the context ofspace objects with nuclear and radio isotopic power sources onboard. 81 Similarly, the provisionrelating to the determination of the amount of compensation payable under Article XII of theLiability Convention can also be found in the NPS Principles. 82In relation to the costs of the recovery and the clean-up, the Agreement on the Rescue ofAstronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the“Rescue Agreement”), adopted by the General Assembly in 1968, 83 and the NPS Principlescontain two substantially identical but procedurally different provisions. Under the RescueAgreement, the expenses incurred for the recovery and return of the components of the space are78 Gorove, supra note 76, at 15.79 Cheng, supra note 72, at 24.80 Edward A. Frankle, International Regulation of Orbital Debris (2000) 43 PROC. COLL. L. OUTER SPACE369.81 NPS Principles, Principle 9(1).82 Ibid., Principle 9(2).83 (1968) 672 U.N.T.S. 119; 7 I.L.M. 149.