Mind the Gap!

Vaishali Patro is a third-year B.A., LL.B. (Hons.) student at the National University of Juridical Sciences (NUJS), Kolkata.

A space satellite hovering above the coastline. Available here

At COP28, nearly 200 countries recognized the need to transition away from fossil fuels to achieve net-zero carbon dioxide emissions by 2050. To achieve this, they agreed to have sustained reductions in greenhouse gas emissions of 43% by 2030 and 60% by 2035. Some countries like Germany and Finland plan to achieve carbon neutrality before 2050. These ambitious targets, coupled with a decrease in the cost of solar technology, continue to steer countries toward solar power. In recent years, there has been increased discourse on space-based solar power (‘SBSP’). This year, Japan and China will attempt to transform SBSP from an idea to a reality. Doing so would allow them to harness solar energy from space and transmit it back to Earth. In this article, I will explore the current outer space liability regime is inadequate to apply to SBSP and leaves these projects vulnerable to negligent damage.

Space-Based Solar Power – Old to Gold?

Solar power is already a primary power source for space objects such as the Hubble Telescope, Starlink, and the International Space Station. These space objects use solar arrays of varying sizes and specifications to convert solar energy into electricity for their own use. SBSP attempts to use the same framework. However, under SBSP, after solar energy is converted to electricity, it is transmitted back to Earth wirelessly, where it is then converted to electricity again. This method resembles how telecom satellites transmit TV signals. SBSP carries multiple advantages. Not only does it use existing technology, but it also allows the energy collected by solar panels to remain unaffected by cloudy weather conditions. Countries have started taking initiative to avail these advantages. China has announced that it would be building a 1km long solar array along the geostationary orbit (‘GEO’) for SBSP, which would allow it to generate energy equivalent to the Three-Gorges Dam, the world’s largest hydroelectric power generator. At the same time, Japan has started its OHISAMA Project, which aims to make Japan the first country to transmit solar energy from outer space back to Earth. Even the European Space Agency has started SOLARIS in an attempt to achieve SBSP.

However, this is where the problem arises. Due to the ultra-hazardous nature of space activities, SBSP infrastructure faces the same heightened risk of collisions as any other space object. This risk raises the question: Who is responsible for damages caused by accidents in space?

The Outer Space Liability Regime

The liability regime in outer space is grounded in two international legal provisions. First, the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (‘Outer Space Treaty’); and second, the 1972 Convention on International Liability for Damage Caused by Space Objects (‘Liability Convention’). Article VI of the Outer Space Treaty assigns international responsibility of the contracting states in a particular space activity, meaning that states must ensure that their outer space activities are consistent with international law. Article VII imposes international liability on a state that launches or procures the launching of a space object, meaning that in the case a launching state’s space object causes damage to another, it will have the financial obligation to remedy the harm. Article VIII of the Outer Space Treaty establishes that the state of registry retains responsibility for its space object.

However, the U.N. Committee on Peaceful Uses of Outer Space (UNCOPUOS) found this system inadequate for covering liability claims in space. As a result of this inadequacy, the UNCOPUOS drafted the Liability Convention to extend Article VII of the Outer Space Treaty. More comprehensive than the Outer Space Treaty, the Liability Convention provided different types of liability for space activities. Article II of the Liability Convention establishes absolute liability on the launching state for any damage caused by its space object on the surface of the Earth, and Article III imposes fault liability on the launching state for any damage caused elsewhere than the surface of the Earth. Damage caused to solar panels in outer space falls under Article III of the Liability Convention, and thus, is governed by fault liability.

The Solar Panel Problem

Under Article III of the Liability Convention, in the case that solar panels are damaged by another’s satellite, say the satellite of State X, the owner of the satellite in question must prove the following to claim damages:

1. State X is the launching state of the space object that damaged the solar panel.

2. State X was at ‘fault.’

3. There was proximate causation between the fault of State X and the damage caused to the solar panel.

   
   

The difficulty in proving ‘fault’ in outer space has been widely discussed and deliberated. One of the ways ‘fault’ can be proved is by establishing proximate causation between the action and the damage caused using the but for test. To pass this test, the owner of the harmed solar panel must establish that the damage caused to their solar panel would not have occurred but for the fault of State X.

The determinative problem here is that solar panels are highly prone to damage from externalities such as space junk in the form of small debris, defunct satellites, etc., in outer space. Currently, estimates reveal the existence of 34,000 pieces larger than 10 cm, 900,000 between 1 cm and 10 cm, and over 128 million fragments between 1 mm and 1 cm in LEO, with additional smaller debris that are untraceable. Travelling at 7.5 km/s, even tiny particles are highly destructive. The GEO consists of larger pieces of debris, which are particularly dangerous due to their high speeds. These pieces of debris reduce the functionality of solar panels and carry the potential to make them defunct. This is evidenced by various instances, such as the reduction in the power output of Copernicus Sentinel-1A when it was struck by a small untraceable piece of debris. Further, in the span of 4 years, approximately 40,000 particles greater than 10 microns impacted the solar arrays on the Hubble Telescope, with the perforation caused by impact being several hundred times. Even the ISS has recorded over 1,400 impacts from meteoroids, with predictions estimating a degradation rate up to 0.80%.

Now, suppose State X’s space object negligently crashes into a solar panel, causing a loss or reduction of its functionality. In that case, State X can escape liability by adopting the defense that the solar panel lost its functionality, or faced a decrease in functionality, due to regular wear and tear over time. This defense stands to exacerbate existing gaps in the international liability regime, putting the owners of SBSP apparatus at a considerable disadvantage and preventing them from rightfully being able to claim damages under the Liability Convention.

Conclusion

Though the Liability Convention was established to enact a thorough liability regime in outer space, advances in technology and growing, untraceable debris in outer space are challenging its provisions. This debris stealthily deteriorates and damages the workings of solar panels. Consequently, in cases of negligent crashes, the only binding liability regime in outer space fails to be of any aid. This effectively leaves SBSP owners without any method to claim rightful damages and simultaneously provides a scot-free excuse for countries acting negligently. Minimizing legal gaps in the outer space liability regime is thus the need of the hour.

Until technology develops to trace the untraceable, the Liability Convention must be amended to recognize the depreciation caused by debris. This amendment will help countries meet their carbon neutrality targets without undue and unclaimable losses. Until the amendment, it is recommended that countries take note of the current provisions governing liability in outer space, and mind the gaps!