TEAM: 24

THE 2015-16 MANFRED LACHS SPACE LAW MOOT COURT

COMPETITION
THE CASE CONCERNING SPACE DEBRIS, COMMERCIAL SPACEFLIGHT
SERVICES AND LIABILITY
THE REPUBLIC OF BANCHE/THE REPUBLIC OF RASTALIA

SPRING TERM 2016

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE
THE PEACE PALACE, THE HAGUE, THE NETHERLANDS

MEMORIAL FOR THE STATE OF BANCHE

TABLE OF CONTENTS
1

TABLE OF AUTHORITIESIII
STATEMENTS

OF

FACTS ...

VIII
QUESTIONSPRESENTEDXIV
SUMMARY

OF

ARGUMENTS

XV
ARGUMENTS ADVANCED...1
1. That Rastalia violated international law by refusing to return Couleur and Commander
Borsch

to

Banche

and

refusing

the

earlier

return

of

Ms.

Paula

to

Banche1
I.1 That Rastalia violated international law by refusing to return Couleur...1
I.2 That Rastalia violated international law by refusing to return Commander Borsch to
Banche..3
I.3 That Rastalia violated international law by refusing the earlier return of Ms. Paula to
Banche..6
2. Rastalia is liable under international law for damage to Couleur.....9
2.1 Rastalia is liable for all the damage caused by Lavotto-I as it is the launching
state.9
2.2 That Rastalia has behaved negligently with respect to the development of its spacecraft
and

is

liable

for

its

construction

defects

and

damage

caused

thereof...12
3. Banche is not liable under international law for the costs of recovery of Couleur, the
rescue and medical expenses for Commander Borsch, the costs of the evacuation of Lake
Taipo, and the deaths of both Mr. Thomas and Mr. Barton.
..14
PRAYER

FOR

RELIEF..XVIII

INDEX OF AUTHORITIES
A. TREATIES AND CONVENTIONS
Agreement among the Government of Canada, Governments of Member 12
States of the European Space Agency, the Government of the Japan, The
Government of the Russian Federation, and the Government of the United
States of the America Concerning Cooperation on the Civil International
Space Station, 1998.
Agreement on Rescue of Astronauts, The Return of Astronauts and The 3,6,7,16
Return of Objects Launched into Outer Space,1968
Convention on International Liability for Damage Caused by Space 10,14,16,17
Objects,1972
Convention on Registration of Objects Launched into Outer Space, 1975.

11

Treaty on Principles Governing the Activities of States in the Exploration 1,3,4,10,11,12,13

and Use of Outer Space, including the Moon and Other Celestial Bodies,
1967.
United Nations Charter, 1945.
Vienna Convention on Law of Treaties, 1969.

11,12,13

B.MUNICIPAL LAWS
Commercial Space Launch Act,1984

13
3

C.ARTICLES AND ESSAYS

Bin Cheng, Convention on International Liability for Damage Caused by 18
Space Objects, in Manual On Space Law 83 (1979).
Bin Cheng, International Responsibility and Liability for Launch 12
Activities, 6 Air & Space L.297, 301 (1995)
Bin Cheng, Studies In International Space Law 314 (2004).

18

37 Colloquium On The Law Of Outer Space 1994

10

48th Colloquium on Law of Outer Space (IISL) 2005

13,14

IAC-08-E8.2.9

IAS- 51st International colloquium on the law of outer 7

space (IISL) The Rescue Agreement And Private Space Carriers

(IAC-10-E7.4.4) In Search Of The Current Legal Status Of The 1,2
Registration Of Space Objects.
(Karl-Heinz Bockstiegel ed., 1985). Space Stations : Legal Aspects Of 13
Scientific And Commercial Use In A Framework Of Transatlantic
Cooperation
Liability for State and Private Space Activities,

Colloq. Outer Sp.14 11

(1991).
III Manual On Space Law

10

D.BOOKS AND TREATIES

Andrew J. Young, Law And Policy In The Space Stations Era 148 12
(1989); Andrew G. Hailey, Space Law And Government 232 (1963).

Ian Brownlie, Principles of Public International Law, (6th edition. 2004)

15

III Manual On Space Law, 354 (Nandasiri Jasentuliyana & Roy S.K. Lee 10
4

eds., 1981)
Stephen Gorove, International Protection of Astronauts and Space Objects, 3,5,7
20 DePaul L. Rev. 597 (1971)
Treaty on Rescue and Return of Astronauts and Space Objects By: - Paul 5,6,7
G. Dembling, Daniel M. Arons., (1968). Documents on Outer Space Law.
Paper 4.

E. UN RESOLUTIONS AND OTHER MATERIALS

G.A. Res. 1348 (XIII), December 13, 1958.

IADC Space Debris Mitigation Guidelines, guideline no. 5.2.2

14

Statement By Herbert Reis, United States Representative, before The Legal 7

Subcommittee of the United Nations Committee on the Peaceful Uses of
Outer Space, December 14, 1967, US/UN Press Release-240, December
5

14, 1967.
U.N. Doc. hTo. A/AC.98/2, June 18, 1959

UN. Doc. No. A/4141, July 14, 1959.

UN Doc. A/AC.105/C.2/SR.66 (1966), About the modification from 2

personnel thereon to personnel thereof of the draft Article VIII of the
OST.
U.N. Doc. No. A/AC.105/768 (2002) Review of the Concept of the 13
Launching State, UN Secretariat, UNCOPUOS.
U.N. Doc. No. A/AC.98/2 at 7. The Report of the Legal Subcommittee 8
became Part III of the Report of the full Ad Hoc Committee to the
General Assembly.

F. INTERNATIONAL CASES AND ARBITRAL DECISIONS

Rainbow Warrior (New Zealand/France), (1990) 82 Intl. L. Rep., 499 10
(Apr. 30); Gabcikovo Nagymaros Project (Hungary v. Slovakia), 1997
I.C.J. 7 (Sep. 25).

Temple of Preah Vihear (Cambodia v. Thai), 1961 I.C.J. 27, 32 (July 12

28); Border and Transborder Armed Activities (Nigeria v. Honduras) 1988
6

I.C.J. 84, 84-5 (Dec. 28)

STATEMENT OF FACTS
The Republic of Banch
Is a highly developed country with a 2000-kilometer coastline? It has a long history
and technical expertise in space exploration and exploitation. Its state-owned space
station, Mira, placed in a north-south polar orbit, has been operating for nearly ten years since
October
On June 1st, 2021, Banch initiated a long-term national program Open the Gateway for
Mankind to encourage its domestic private enterprises to provide private commercial
spaceflight services in the international market.
The Republic of Rastalia
Is a landlocked state with rich natural resources? Rastalia set up a national plan for space
entitled Beyond the Earths Surface in early 2024. The plans initial goals were to focus on
making extensive use of satellite technologies for various purposes and expanding the
satellite market.
7

They are both Member States of the United Nations Committee on the Peaceful Uses
of Outer Space (COPUOS) and actively take part in the discussions of COPUOS working
groups concerning the space legal and technical issues. Banch considers Rastalia as a
significant rival in the commercial space marketplace and maintains strict export controls
over high technologies against Rastalia
The Space Race begins - Rastalia
Jardon Tech. Co. Ltd. (Jardon), a satellite company, was founded and registered in
Rastalia in 2023.

Soon

after

Rastalia

initiated

the

Satellite

Commercialization

Development (SCD) project in 2026, Jardon received the authorization certificate to conduct
commercial launching services from Rastalian government

facilities

pursuant to

its

National Space Commercial Launching Act (2016). Jardon became the major enterprise
appointed by the Rastalian government to undertake the SCD project. On January 20th, 2027,
as part of the SCD project, Rastalia announced plans to launch three satellites (Lavottoseries) within three years. The main functions of the satellites developed as part of this
project are commercial telecommunications, disaster monitoring, and medical data
relaying services for rural and remote areas where conventional communications or other
services are not available.

On January 15th, 2028, Jardon launched the first scientific satellite (Lavotto-1) from Rastalian
territory. This satellite was placed in low Earth orbit (LEO), an elliptical orbit with a nominal
average altitude of 600 kilometres. Lavotto-1 had an in-orbit dimension of 3.25 meters (10.6
feet) 0.6 meter (2 feet) 0.3 meter (1 feet) and a mass of 950 kilograms. The major
structural material of Lavotto-1 was the latest composite research achievement of Jordon.
Lavotto-1 marked the first operational use of the material which had not previously been
launched into outer space. For end-of-life mission planning purposes, the satellite was
equipped with a capability either to de-orbit or to be maneuverer to a so-called parking
orbit and it was duly registered.
The Solar Storm.
On May 18th 2028, four months after achieving full operational capability, Lavotto-1
suddenly ceased most of its functions (including the de-orbit capability) because of a rare
solar windstorm. Jardon immediately reported this failure to the Rastalian government
8

and predicted that there was still the possibility to manoeuvre the barely functional satellite
to a higher parking orbit.
On May 25th, 2028, the Rastalian government announced that Jardon was unable to boost
Lavotto-1 towards the expected parking orbit because the satellite power and thermal
systems damaged by the solar storm had failed during the orbit-altering manoeuvre.
After the failure of Jardons attempt to alter Lavotto-1s orbit, Jardon reported to
Rastalia that the uncontrolled Lavotto-1 would pose a collision hazard to the Mira Space
Station, which was at the same or slightly lower altitude to the Lavotto-1. Rastalia confirmed
these findings and held a press conference where it reported that the collision probability
would be greater if there was an attempt to use another Rastalian spacecraft to capture
the satellite and deorbit it because the Lavotto-1 was too fragile for such a mission.
The country of Mosolia describes itself as a permanently neutral state. It is highly advanced
in space technologies. Its Moso Space Traffic Monitoring and Awareness Centre (Moso
Centre) kept close track of Lavotto-1 before and after the malfunction.
June 15th, 2028, which revealed that the conjunction of Lavotto-1s and Miras orbits was
within 2 kilometres in LEO and there was a significant probability that Mira would suffer a
catastrophic collision with Lavotto-1.During the next several weeks, Banch and Rastalia
conducted discussions through diplomatic channels. On July 30th, 2028, Rastalia announced
that Rastalia is unable to resolve the malfunction of Lavotto-1 and declares that the
spacecraft is a derelict object.
The Banch Gambit
Later that day the Banch defines minister held a press conference and announced, The
Banch government considers the Lavotto-1 satellite to be abandoned and Banch will
physically remove Lavotto-1 from its current orbit with the latest advanced robotic seizing
and removing technologies, which will be implemented as part of its upcoming manned space
flight. Solare Travel Services Ltd. (Solare), a company registered in Mosolia, has its
principal office in Banch. Solare successfully qualified the spacecraft Couleur for
commercial spaceflight services in early February 2025 after several successful trial flights
launched from the Banch spaceport. On July 1st, 2028, Solare shortlisted two persons
through selection (a Mosolian citizen named Ms. Erin Paula and a Rastalian citizen named
Mr. Andrew James) among a number of applicants for its debut launch, with a Banch
astronaut named Mr. Mario Borsch as Couleurs commander. Ms. Paula is a well-known
9

Mosolian scientist, who won its National Science and Technology Award in 2026. The
Mosolian government provided full funding for her to take Couleurs first space trip. Mr.
James is the CEO of Rastalias largest oil company Oxpeck and he paid for the space
ride himself; Couleurs commander, Mr. Borsch, formerly worked in the Ministry of
National Defence of Banch during 2016-2021, serving as chief program director and
engineer in charge of Banchs Anti-satellite Weapons (ASAT) project.
On August 1st, 2028, the Banch government signed a contract with Solare, which stipulated
that Solaras spacecraft Couleur take up the job to remove Lavotto-1 from its current orbit
using the latest robotic seizing and removing technologies to be provided by the Banch
Space Agency. Solare was also contracted to provide for the launching services of two
Banch satellites in 2029. On January 1st, 2029, Couleur was launched from the Banch
spaceport and successfully rendezvoused with Lavotto-1. On January 3rd, 2029, Couleurs
commander, Mr. Borsch, started to operate the satellite removing system which
consisted of a grappling arm. However, during the grappling process, the Lavotto-1s
composite structural material did not withstand the grappling and the satellite broke
into two segments. Only one of the segments could be captured by Couleurs grappling arm
and de-orbited. The other piece of Lavotto-1 remained in orbit, and posed collision risks to
Mira and Couleur and to other space objects in or intersecting the same orbit. After the
structural failure, on the same day, after consulting the flight control centre on the
ground, Commander Borsch decided to activate the Global-Orbiting Deflection
Apparatus (GODA) Laser Satellite Removal System which was equipped by the Banch
Ministry of National Defence in the Couleur before its launch.
The Second Incident
On January 4th, 2029, GODA fired a continuous beam on the remaining piece of Lavotto-1.
Station keeping thruster propellant still on-board Lavotto-1 exploded which resulted in a
cascade of debris fragments. Several minutes later, Couleur was struck by a debris fragment,
which seriously damaged the normal functioning of Couleurs communications and
flight control systems, leaving only limited and intermittent communications ability and
reduced manoeuvrability of the spacecraft. Commander Borsch decided to make an urgent
landing at the Banch spaceport with the permission from Solare. The Couleur, due to the
damage to its key communications apparatus, was unable to achieve the correct orientation
and failed to land at the Banch spaceport. Without sufficient ability to communicate with the
10

ground control centre, Commander Borsch decided to land in the territory of Rastalia and was
able to successfully touch down beside Lake Taipo, a major Rastalian tourist destination in
the south. During the landing process, a piece of spacecraft shell, damaged by the debris
collision, detached and hit a campsite near Lake Taipo, completely destroying the
buildings near the lake and causing the death of a Rastalian, Mr. Dave Thomas, who
was on holiday with his daughter Wendy.
The Defection
Banch issued a diplomatic note to Rastalia and formally demanded the immediate return of
the Couleur spacecraft, Commander Borsch, and Ms. Paula. A

Rastalian Rescue and

Recovery Team located and reached the landing site of Couleur within 18 hours after its deorbit. In the interim, the Rastalian Foreign Minister issued a formal statement that the
Rastalian

Government

strongly condemned

the GODA Laser as a weapon of mass

destruction, and its belief that such device must have been powered by nuclear materials.
Therefore, the Rastalian Government ordered the evacuation of all persons within a 300
kilometre radius of Lake Taipo. The rescue and recovery team found that Couleurs passenger
cabin was relatively intact although the remainder of the craft was severely damaged. The
three persons in the cabin were successfully rescued and sent to the hospital for medical
treatment. The Couleur spacecraft was tested and no nuclear radiation leak was detected.
One month later, the evacuation order for Lake Taipo was lifted.
On January 11th, 2029, in response to Banchs diplomatic note, the Rastalian Foreign
Ministry spokesman announced that Mr. James would be sent to the Rastalian National
Hospital for further health recovery. She also announced that the unscheduled landing also
caused the death of another Rastalian citizen, Mr. Barton, who was under the flight path and
suffered a fatal heart attack while witnessing the Couleur pass overhead. In addition,
she stated that the Couleur GODA Laser system was an illegal weapon, and that Rastalia had
the right to fully examine the spacecraft no matter how long it took to complete that process.
Further, Commander Borsch would be held pending criminal charges, and Ms. Paula would
be returned to Banch after Banch reimbursed Rastalia for the costs and damages incurred as
a result of Couleurs illegal acts, including costs of recovery of the spacecraft, rescue costs
and medical expenses for the personnel of the spacecraft, the costs of the evacuation of Lake
Taipo, and the deaths of Rastalians, including both Mr. Thomas and Mr. Barton. On January
12th, 2029, the Mosolian press published a declaration signed by Commander Borsch,
11

which was leaked to the Mosolian press. In the declaration, Commander Borsch asked
for political asylum in Rastalia and refused to be sent back to Banch, but did not give any
reasons. Banch insisted on the return of Commander Borsch, and claimed that he was being
held illegally for his knowledge of sensitive technologies and information acquired during his
service in the Banch Ministry of National Defence.
The Banch President made an announcement which condemned Rastalias detention of
Couleurs commander as a violation of international law, and she demanded his return
without any precondition. On February 10th, 2029, Mosolias domestic privately owned
newspaper International Reference News Observation (IRNO), reported that a Banch
investigation concluded that after Couleurs landing, Ms. Megan, a representative of the
Rastalian National Defence Department, secretly negotiated with Commander Borsch,
and promised to drop all criminal investigations and to provide him with a key position in the
Rastalian Space Research Institute (RSRI) with lucrative rewards. IRNO further reported
that Commander Borsch accepted the offer and signed an internal confidential
agreement with RSRI, which listed the core space-related technologies he was to develop for
Rastalias National Defence Department, including nuclear power systems, spacecraft
navigation systems and laser ASAT systems.
After several months, following diplomatic negotiations, Rastalia released Ms. Paula to
Banch. Negotiations for the return of Commander Borsch and the Couleur spacecraft were
unsuccessful, and both remain in Rastalia. 24.

Banch initiated these proceedings by

Application to the International Court of Justice. Rastalia accepted the jurisdiction of the
Court

12

QUESTIONS PRESENTED
I
Whether Rastalia violated international law by refusing to return Couleur and Commander
Borsch to Banche and refusing the earlier return of Ms.Paula to Bache?
II
Whether Rastalia is liable under international law for the damage to Couleur?
III
Whether Banche is entitled under international law for the costs of recovery of Couleur, the
rescue and medical expenses for Commander Borsch, the costs of the evacuation of Lake
Taipo, and the deaths of both Mr. Thomas and Mr. Barton?

13

SUMMARY OF ARGUMENTS
I. Article VIII of The Treaty of Principles Governing the States in the Exploration and Use
of Outer Space, including Moon and other Celestial Bodies (the Outer Space Treaty),
mandates that a State party on whose registry a space object is launched retains jurisdiction
over the said object and any personnel on the spacecraft. It also states that the space object
and any personnel on the spacecraft should be returned if found beyond the territorial limits
of the launching state. Article VIII also goes on to clarify that ownership of any objects
landed or constructed on a celestial body, and of their component parts, is not affected by
their presence in outer space or on a celestial body or by their return to the Earth. Further, it
mandates the return of such objects as it remains under the continued registry and ownership
of the State which actually launched the spacecraft in the first place.
In the instant case, therefore, as both parties are signatories to the Outer Space Treaty there is
a manifest duty on Rastalia to return Couleur. According to the OST, the launching State
retains jurisdiction in every sense over the space object, which means that Banche (the
launching State) has control over the Couleur, which should be returned to Banche. It is
submitted therefore that Rastalia refusing to return Couleur is a clear violation of
international law. Further, Article V of the Outer Space Treaty requires State Parties to take
all possible steps to rescue and assist astronauts and promptly return them to the launching
state. Thus, Rastalias continued refusal to return Commander Borsch is a violation of
international law. Similarly, there is a duty on Rastalia to return Ms. Paula, who belonged to
the State Party where the spacecraft Couleur was registered, namely Banche. By refusing the
earlier return of Ms. Paula, a scientist who was a part of the personnel of the spacecraft
Couleur, Rastalia violated international law.

14

II. According to Article VI of the Outer Space Treaty, outer space is free for use and
exploration to all States. A State is responsible for internationally wrongful acts that are
attributable to it. The State that launches a space object retains jurisdiction and control over
that object. The State is also liable for damages caused by their space object. Rastalia violated
international space law by abandoning Lavotto-I and is also liable for the damages caused by
such abandonment. Article II of the Registration Convention establishes that the
launching state shall register the space object. The Vienna Convention on the Law of
Treaties (VCLT) requires a treaty to be interpreted in good faith and in the light of its objects
and purposes. In the instant case, by duly registering the satellites in both the Local and the
UN register, Rastalia is both responsible and liable for the damage they caused.
Under Article VI of the OST, States parties have assumed direct responsibility for
acts that would normally not be attributable to them, specifically, private space
activities. An examination of the preparatory works shows that the intent of the parties to the
OST was to allow private space activities only under the compromise that national
governments would assume responsibility for non-governmental activity. Additionally, State
practice demonstrates that States authorise space activities involving their nationals
wherever they are carried out. Licensing is one of the primary methods by which States
carry out their duty to authorise and supervise private space activities under Article VI.
Thus, the State of Rastalia will be liable as Jordan Tech Co. Ltd is a Rastalian enterprise, run
by Rastalian citizens, in partnership with the Rastalian government and under their control in
terms of sanction and regulation. Further, the appropriate State is required to authorize and
continually supervise the launch activities of non-governmental entities. As the State with
effective control and the strongest jurisdictional tie to the launch, Rastalia is the appropriate
state and is liable for the damaged caused by Lavotto-I.
No exoneration whatsoever shall be granted in cases where the damage has resulted from
activities conducted by a launching State which are not in conformity with international law.
Here, the absolute liability lies upon Rastalia as they abandoned Lavotto-I, classifying it a
derelict object, in contravention of Article II and Article VI of the Outer Space Treaty.
Rastalia should be held liable for using a never-before used material that was fragile in
nature. Being fragile in nature, Lavotto-I broke into fragments as soon as it came into contact
with Couleurs grappling arm. The States Parties attract responsibility only if it is established
that they have failed to exercise the required due diligence or to procure proper satisfaction
15

and reparation for the wrong done. It is submitted that Rastalia has done neither and should
be held liable under international slaw for the damage caused by the break-up of the LavottoI satellite.
III. According to the Convention on International Liability for Damage Caused by Space
Objects (Liability Convention), the provisions of this Convention shall not apply to damage
caused by a space object of a launching State to nationals of that launching State. Therefore,
in the present case, Banche being the launching state cannot be held responsible for cost of
rescue and medical expenses of Commander Borsch, a Banche national. According to Article
2 of The Return and Rescue Agreement 1968, if owing to accident, distress, emergency or
unintended landing, the personnel of a spacecraft land in territory under the jurisdiction of a
Contracting Party, it shall immediately take all possible steps to rescue them and render them
all necessary assistance. Hence it becomes the responsibility of the state on whose territory
the spacecraft has landed to take due care of the personnel of the spacecraft. It is submitted
therefore that Rastalia cannot demand compensation for the process of rescue and recovery of
personnel onboard the Couleur.
The Liability Convention provides that a State which suffers damage or whose natural
or juridical persons suffer damage, may present a claim for compensation for such
damage. What, therefore, must be determined here is the locus of causality. In the present
case, the locus of attributability clearly lies with the state of Rastalia; it was debris from the
Lavotto-I that caused damage to the Couleurs communications and flight control systems,
which in turn lead to the emergency landing. Therefore, in the instant case, it is Rastalia that
is liable for the deaths caused by the emergency landing and the damage cause to the Lake
site.

16

ARGUMENTS ADVANCED
1

Rastalia violated international law by refusing to return Couleur and

Commander Borsch to Banche and refusing the earlier return of Ms. Paula to
Banche.

Rastalia violated international law by refusing to return Couleur.

Article VIII of The Treaty of Principles Governing the States in the Exploration and Use

of Outer Space, including Moon and other Celestial Bodies 1 (the Outer Space Treaty),
mandates that a State party on whose registry a space object is launched retains jurisdiction
over the said object and any personnel on the spacecraft. It also states that the space object
and any personnel on the spacecraft should be returned if found beyond the territorial limits
of the launching state.2 Article VIII also goes on to clarify that ownership of any objects
landed or constructed on a celestial body, and of their component parts, is not affected by
their presence in outer space or on a celestial body or by their return to the Earth. 3 Further, it
mandates the return of such objects as it remains under the continued registry and ownership
of the State which actually launched the spacecraft in the first place.4
The term retain jurisdiction and control over a space object and personnel thereof,
indicates that the act of registering a space object is the exclusive source of a State Partys
power to exercise jurisdiction and control over such space objects. Since territorial
1The Treaty of Principles Governing the States in the Exploration and Use of Outer Space,

including Moon and other Celestial Bodies, Art. VIII.

2 Id.
3 Id.
4 Id.
17

jurisdiction cannot be claimed in outer space5, the nature of the jurisdiction exercised by a
State of registry would be categorized as quasi-territorial jurisdiction6 or personal
jurisdiction. Dr. Bernhard Schmidt-Tedd, in his commentary on Art. VIII of the Outer Space
Treaty (OST), states that without the first step of national registration, no jurisdiction and
control over the space object in question is feasible 7. This conclusion seems to be supported
by the OST and GA Res. 1721B under the 1975 Registration Convention. As OST and the
Registration Convention are lex specialis, it is submitted that the UN registration alone is the
exclusive legitimate source for the executing jurisdiction and control over a space object and
persons in, on and outside such space object8.
The legal consequences of jurisdiction and control under the OST entails
applicability of the national law of the State of registry for the object launched into outer
space, including over any personnel thereof9. Control should not depend only on the
factual and technical capabilities, but must be based on legitimate jurisdiction. 10 There are
three tyoes of jurisdiction viz., legislative jurisdiction 11, judicial jurisdiction12 and
enforcement jurisdiction13. When referring to jurisdiction, it is important to identify which

5 Art. II of the Outer Space Treaty.

6 See, e.g., Bin Cheng, Nationality for Spacecraft? in idem, ed., STUDIES IN

INTERNATIONAL SPACE LAW (Clarendon Press, 1997), pp.478-479.

7 Bernhard Schmidt-Tedd, Commentary on Article VIII of the OST, the explanation by Dr.

U. M. Bohlmann (note 70), cited in Stephan Hobe, Bernhard Schmidt-Tedd & Kai-Uwe
Schrogl, eds. COLOGNE COMMENTARY ON SPACE LAW, , vol.1 (2010),p,152.
8 About the modification from personnel thereon to personnel thereof of the draft

Article VIII of the OST, see, UN Doc. A/AC.105/C.2/SR.66 (1966), p.52.

9 Schmidt-Tedd, supra note 8, p.159.
10 Ibid ., p.157.
11 Also known as jurisdiction to prescribe or prescriptive jurisdiction.
12 Also known as adjudicative jurisdiction.
13 Peter Malanczuk, AKEHURSTS MODERN INTRODUCTION TO INTERNATIONAL

LAW, 7th revd ed. (Routledge, 1997), p.109.

2

kind of jurisdiction a certain State is to hold and exercise over a space object 14. Jurisdiction
arising from registration is undoubtedly comprehensive, and a State of registry is understood
to hold legislative, judicial and, above all, enforcement jurisdiction.
In the instant case, therefore, as both parties are signatories to the OST,15 there is a
manifest duty on Rastalia to return Couleur. According to the OST, the launching State retains
jurisdiction in every sense over the space object, which means that Banche (the launching
State) has control over the Couleur, which should be returned to Banche. It is submitted
therefore that Rastalia refusing to return Couleur is a clear violation of international law.
Further, Article V16 of the Outer Space Treaty states that astronauts are envoys of
mankind17. It goes on the clarify States Parties to the Treaty shall render to astronauts all
possible assistance in the event of accident, distress, or emergency landing on the territory of
another State Party or on the high seas. 18 When astronauts make such a landing, they shall be
safely and promptly returned to the State of registry of their space vehicle19 and the State
shall retain jurisdiction and control over such object, and over any personnel thereof. Such
objects or component parts found beyond the limits of the State Party to the Treaty on whose
registry they are carried shall be returned to that State Party, which shall, upon request,
furnish identifying data prior to their return.20
In the present case, both the States are a party to 1967 Outer Space Treaty and
Rastalias refusal to return Couleur is in turn a violation of international law.

14 Id.
15 Id.
16 Outer Space Treaty, Art. V.
17 Id.
18 Id.
19 Id.
20 Outer Space Treaty, Art. VIII.
3

Further, Article 5 of The Return and Rescue Agreement 196821 extends its protective
shield to objects launched into outer space, to assure their recovery and return. 22 The article
directs each Contracting Party which receives information or discovers that a space object or
its component parts has returned to Earth in territory under its jurisdiction or on the high seas
or in any other place not under the jurisdiction of any State to notify the launching authority
and the Secretary-General of the United Nations.23 24
The article further states that each Contracting Party having jurisdiction over the
territory on which a space object or its component parts have been discovered shall, upon the
request of the launching authority and with assistance from that authority if requested, take
such steps as it finds practicable to recover the object or component parts. 25 Further, upon
request of the launching authority, objects launched into outer space or their component parts
found beyond the territorial limits of the launching authority shall be returned to or held at the
disposal of representatives of the launching authority, which shall, upon request, furnish
identifying data prior to their return.26
In the instant case, both the States are a party to the 1968 Return and Rescue
Agreement. The State of Banche issued a diplomatic note to Rastalia and formally demanded
the immediate return of the spacecraft Couleur, actions that are in conformity with the
agreement.27 Rastalias refusal to return Couleur is therefore a clear violation of international
law.

21The Return and Rescue Agreement 1968, Art 5.

22 Id.
23 Id.
24Stephen Gorove, International Protection of Astronauts and Space Objects, 20 DePaul L.

Rev. 597 (1971).

25 Id.
26 Id.
27 Compromis, Para 17.
4

Rastalia violated international law by refusing to return Commander Borsch to

Banche.
Article V of The Treaty of Principles Governing the States in the Exploration and Use of

Outer Space, including Moon and other Celestial Bodies28 (the Outer Space Treaty) states
that in the event of accident, distress or emergency landing on the territory of another State
Party, or on the high seas, astronauts should be safely and promptly returned to the State
where their space vehicle has been registered. In the instant case, both parties are signatories
to the Outer Space Treaty (OST) which applies as Couleur was a spacecraft registered in
Banche, thereby imposing a duty on Rastalia to return Commander Borsch back to Banche.
Article V of the OST29 requires State Parties to take all possible steps to rescue and assist
astronauts and promptly return them to the launching state. Thus, Rastalias continued refusal
to return Commander Borsch is a violation of international law.
Further, a State Party cannot grant political asylum to an astronaut if the landing of the
spacecraft is unintentional or is due to an accident, emergency, or distress and should be
returned to the launching state.30 In the instant case, it is not disputed that Commander Borsch
decided to make an emergency landing in Banche (launching state). But due to the damage
caused to key communication apparatus in Couleur, the spacecraft was unable to achieve the
correct orientation, leading to an unintentional landing in Rastalia. It is the duty of Rastalia to
return Commander Borsch back to Banche as the landing was unintentional. It is submitted
therefore that Rastalia cannot refuse to return Commander Borsch to Banche on the ground
that they have granted him political asylum.
While eminent scholars Grotius and Suarez are said to have recognized the right of
asylum as the natural right of an individual, entailing a corresponding state duty to grant
asylum,31 this view has not yet been generally recognized under international law. Felice
Morgensterns view that, there can be no doubt that the individual has no general right of
asylum against the State is generally accepted to represent the current status of an
28 The Outer Space Treaty, Article V
29 Id.
30 Stephen Gorove, International Protection of Astronauts and Space Objects, 20 DePaul L.

Rev. 597 (1971).

31 Id.
5

individuals right of asylum in public international law. International and regional instruments
dealing with human rights, asylum, and refugees, as well as the failure of the international
community to agree on a convention on territorial asylum illustrate the general proposition
that, in international law today, an individual has no right to asylum.
The obligation of a contracting party to immediately take all possible steps to rescue
spacecraft personnel and render all necessary assistance to them arises only if the
troublesome landing takes place in territory under the jurisdiction of such party. 32 Should the
spacecraft personnel alight on the high seas, or in any other place not under the jurisdiction of
any state, the sole obligation is to extend assistance if the signatory is in a position to do
so, and then, only if such assistance is necessary to assure speedy rescue. 33 The wishes of
the astronaut in question are not relevant under the Return and Rescue Agreement 1968,
which merely seeks to limit the political agency of the State that is in a position to find and
rescue the astronaut and the space vehicle in question.
Even if one is to believe that Commander Borsch expressed his willingness to stay and
voluntarily sought political asylum, it is not within the legitimate right of the state of Rastalia
to grant the same under international law. This obligation to return under Article 4 of the
Return and Rescue Agreement 1968 is considered unconditional. 34 Furthermore, under Article
4 of the Agreemnt, astronauts must be returned even if crimes have been committed;
presumably, adequate punishment would be imposed by the launching authority.35
It is submitted therefore that Rastalia has violated international law by refusing to return
Commander Borsch immediately.
3

Rastalia violated international law by refusing the earlier return of Ms. Paula to
Banche.

32 Agreement, [1968] 19 U.S.T. 7570, T.I.A.S. No. 6599, art. 2.

33 Agreement, [1968] 19 U.S.T. 7570, T.I.A.S. No. 6599, art. 3
34 Paul G. Dembling, Daniel M. Arons, Treaty on Rescue and Return of Astronauts and

Space Objects (1968), DOCUMENTS ON OUTER SPACE LAW, Paper , article 4.

35 Id.
6

Article VIII of The Treaty of Principles Governing the States in the Exploration and Use
of Outer Space, including Moon and other Celestial Bodies36 (the Outer Space Treaty),
mandates that a State Party on whose registry a space object is launched retains jurisdiction
over the said object and any personnel on the spacecraft. It also states that the space object
and any personnel on the spacecraft should be returned if found beyond the territorial limits
of the launching state.37 In the present case, both parties are signatories to the Outer Space
Treaty (OST) which imposes a duty on Rastalia to return Ms. Paula, who belonged to the
State Party where the spacecraft Couleur was registered, namely Banche. By refusing the
earlier return of Ms. Paula, a scientist who was a part of the personnel 38 of the spacecraft
Couleur, Rastalia violated international law.
Article 3 of the Return and Rescue Agreement states that contracting parties must extend
assistance in search and rescue operations to assure the speedy rescue of personnel of a
spacecraft; personnel of spacecraft such as Ms. Paula must be rescued 39 and returned40
promptly and safely. The obligation to return does not have to include transport; however the
de minimis requirement under Article 4 of the Agreement is the requirement to turn the
personnel over41 to representatives of the launching authority at a location other than on the
territory of the launching authority.42
36 The Treaty of Principles Governing the States in the Exploration and Use of Outer Space,

including Moon and other Celestial Bodies, Art. VIII.

37 Id.
38 Stephen Gorove, International Protection of Astronauts and Space Objects, 20 DePaul L.

Rev. 597 (1971).

39 Article 1, 2, 3 of the return of astronauts and the return of objects launched into outer

space.
40 Article 4- If, owing to accident, distress, emergency or unintended landing, the personnel

of a spacecraft land in territory under the jurisdiction of a Contracting Party or have been
found on the high seas or in any other place not under the jurisdiction of any State, they shall
be safely and promptly returned to representatives of the launching authority.
41 Paul G. Dembling, Daniel M. Arons, Treaty on Rescue and Return of Astronauts and

Space Objects (1968), DOCUMENTS ON OUTER SPACE LAW, Paper , article 4.

42 Statement By Herbert Reis, United States Representative, before The Legal Subcommittee

of the United Nations Committee on the Peaceful Uses of Outer Space, December 14, 1967,
US/UN Press Release-240, December 14, 1967, reprinted in 58 DEP'T STATE BULL. 80
7

There is no connection between the return of an astronaut or the personnel of a spacecraft

and a competing claim of compensation or damages. The proposition that the obligation to
rescue and return astronauts and space objects should be treated separately from the
obligation to compensate for damages took hold in early deliberations on the OST by the
United Nations. On December 13, 1958, the General Assembly established the eighteen
member Ad Hoc Committee on the Peaceful Uses of Outer Space and required that it inter
alia report on the nature of legal problems which may arise in the carrying out of
programmes to explore outer space.

43

The Ad Hoc Committee formed a Legal

Subcommittee which met during 1959. In its report, 44 which was later incorporated into the
report of the Ad Hoc Committee,45 the Legal Subcommittee called attention to a number of
problems that it felt required addressing:
The desirability of the conclusion of multilateral agreements concerning re-entry
Among the subjects that might be covered by such agreements would be the return to the
launching state of the vehicle itself and-in the case of a manned vehicle provision for the
speedy return of personnel.46
The Legal Subcommittee also urged the possible applicability of certain rules of
international law pertaining to aircraft and airmen landing on foreign territory through
accident, mistake, or distress. The matter of liability for damages caused by space vehicles
was also considered a priority problem by the Subcommittee. However, no connection was
drawn or suggested between the obligation of a foreign state to rescue and return astronauts
and space vehicles, and any corresponding right of the foreign state to compensation for
damages caused by the landing of such vehicles. This separation of the two problems by the
Ad Hoc Committee established a precedent, for in succeeding General Assembly resolutions,
and in deliberations in the U.N. Outer Space Committee, the proposition that states should be
(1968).
43 G.A. Res. 1348 (XIII), December 13, 1958.
44 U.N. Doc. hTo. A/AC.98/2, June 18, 1959.
45 UN. Doc. No. A/4141, July 14, 1959.
46 U.N. Doc. No. A/AC.98/2 at 7. The Report of the Legal Subcommittee became Part III of

the Report of the full Ad Hoc Committee to the General Assembly, reprinted in Senate
Symposium ac 1246.
8

obligated to assist and return astronauts and space objects has not been treated as conditioned
upon a corresponding obligation on the part of the launching state to pay compensation for
damages caused by the landing of the space vehicles. Separate draft treaties have been
considered on assistance and return, and on liability for damages.
Therefore, in the instant case, it is submitted that Rastalias holding Ms. Paula as
collateral for the recovery of compensation was a clear and blatant violation of international
law.

Rastalia is liable under international law for the damage to Couleur.

Outer space is free for use and exploration to all States.47 A State is responsible for
internationally wrongful acts that are attributable to it. 48 The State that launches a space
object retains jurisdiction and control over that object. The State is also liable for damages
caused by their space object49. Rastalia violated international space law by abandoning
Lavotto-I and is also liable for the damages caused by such abandonment.
2.1 Rastalia is liable for the damage caused by Lavotto-I as it is the launching
state.
For a state to be a launching state it has to either launch the space object or procure it or
has to be a state from whose territory or facility a space object is launched. 50 Rastalia
procured the launch through the activities of its nationals. Procure means to actively and
substantially participate in a launch.51

47 Treaty on Principles Governing the Activities of States in the Exploration and Use

of Outer Space, Including the Moon and Other Celestial Bodies, entered into force Oct. 10,
1967, Art. VI, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter OST]; Manfred Lachs, The
International Law of Outer Space, in RECUEIL DES COURS, 47-51 (1964).
48 Intl Law Commission, Articles on State Responsibility, U.N.GAOR, 56th Sess, Supp No

10, art 1, U.N. Doc. A/56/10 (2001) [hereinafter Articles on State Responsibility];
Chorzow Factory (F.R.G. v. Pol.), 1927 P.C.I.J. (ser. A) No. 9, at 21 (July 26)
[hereinafter Chorzow Factory]; Rainbow Warrior (New Zealand/France), (1990) 82 Intl.
L. Rep., 499 (Apr. 30); Gabcikovo Nagymaros Project (Hungary v. Slovakia), 1997 I.C.J. 7
(Sep. 25).
49 Treaty on Principles Governing the Activities of States in the Exploration and Use of

Outer Space, including the Moon and Other Celestial Bodies, article VIII.
50 OST, art. VII; Convention on International Liability for Damage Caused by Space

Objects, entered into force Oct. 9, 1973, 24 U.S.T. 2389, 961 U.N.T.S. 187
[hereinafter Liability Convention].
51 Travaux preparatoires to the Liability Convention, Japan Working Paper U.N. Doc.

A/C.105/C.2/L.61 (June 23, 1969) in III MANUAL ON SPACE LAW, 354 (Nandasiri
Jasentuliyana & Roy S.K. Lee eds., 1981) [hereinafter III MANUAL ON SPACE
LAW]; Carl Q. Christol, The Launching State, in International Space Law, Annuaire de
Droit Martime et Aero-Spatial, 372 (1993); Karl-Heinz Bockstiegel, The Terms Appropriate
State and Launching State in the Space Treaties- Indicators of State Responsibility and
Liability for State and Private Space Activities, 34 PROC. COLLOQ. OUTER SP. 14
(1991).
10

Procurement by a State occurs when it or its nationals are actively involved in acquiring,
securing or bringing about the launch.52 The State that brings complicity to the launch
meets the threshold of procuring the launch. 53 Manufacturing has been acknowledged as
falling within the term procuring.54 The Lavotto satellites were developed and manufactured
on Rastalian soil55 and with the authorisation and support of the government of Rastalia.56
Further, by registering the Lavotto Satellites, Rastalia has accepted its liability for
any damage caused by them. Under the Registration Convention, a space object may be
registered on the registry of one State at any given time.57 Additionally, Article VIII of the
OST grants a State party on whose registry an object is launched into outer space
jurisdiction and control over it.58 Article II of the Registration Convention establishes that
the launching state shall register the space object. 59 The Vienna Convention on the Law of
Treaties (VCLT) requires a treaty to be interpreted in good faith and in the light of its objects
and purposes.60 In the instant case, by duly registering the satellites in both the Local and the
UN register,61 Rastalia is both responsible and liable for the damage they caused.

52 William Wirin, Practical implications of Launching State and Appropriate State

Definitions, in PROCEEDINGS OF THE 37 THE COLLOQUIUM ON THE LAW OF

OUTER SPACE 353,359 (1994); Armel Kerrest, Remarks on the Notion of Launching
State, 42 Proc. Colloq. Outer Sp. 308, 311 (1999).
53 Karl H. Bckstiegel, The Term 'Launching State' in International Space Law, 31

I.I.S. L PROC. 80, 81(1994); H.A.Wassenbergh, Public Law Aspects of Private Space
Activities and Space Transportation in the Future , 38 I.I.S. L PROC. 246, 247 (1995).
54 III MANUAL ON SPACE LAW.
55 Compromis para 5, 6,7
56 Id.
57 Convention on Registration of Objects Launched into Outer Space, entered into force

Sept. 15, 1976, 28 U.S.T. 695, 1023 U.N.T.S. 15 [hereinafter Registration Convention].
58 OST, art. VIII.
59 Registration Convention, art. II
60 Vienna Convention on Law of Treaties, entered into force May 23, 1969, art.

31(3), 1155 U.N.T.S. 331 [hereinafter VCLT].

11

Under Article VI of the OST, States parties have assumed direct responsibility for
acts that would normally not be attributable to them, specifically, private space
activities.62 Additional evidence of this is found in Article XI of the OST, where State duties
are triggered by the activities of the State or its nationals. 63 The use of preparatory works and
State Practice is recognized as customary rule of international law,64 and is recommended by
eminent jurists,65and by the ICJ.66 An examination of the travaux shows that the intent of the
parties to the OST was to allow private space activities only under the compromise that
national governments would assume responsibility for non-governmental activity.67
The practice of States is to assume responsibility for their nationals. Under the
International Space Station Intergovernmental Agreement, the partner states are responsible
for ensuring that their nationals abide by the Crew Code of Conduct. 68 There was a somewhat
61 Compormis para 7.
62 Bin Cheng, International Responsibility and Liability for Launch Activities, 6 AIR &

SPACE L.297, 301 (1995); A.Christenson, Attributing Acts of Omission to the State, 12
MICH. J. INTL L.312, 194, 195 (1991).
63 OST, art. IX.
64 Maritime Delimitation and Territiorial Questions (Qatar v. Bahr.), 2001 I.C.J. 18 2001

(Mar. 16); SIR IAN SINCLAIR, THE VIENNA CONVENTION OF THE LAW OF
TREATIES 153 (1982).
65 Hugh Thrilway, The Law and Procedure of the International Court of Justice, 3

BRIT. Y.B.INTL L., 25 (1991); SIR IAN SINCLAIR, THE VIENNA CONVENTION
ON THE LAW OF TREATIES 117 (1982).
66 Temple of Preah Vihear (Cambodia v. Thai), 1961 I.C.J. 27, 32 (July 28); Border

and Transborder Armed Activities (Nigeria v. Honduras) 1988 I.C.J. 84, 84-5 (Dec. 28).
67 The Declaration of Soviet Delegate Fedorenko, Legal Subcommittee on the Peaceful Uses

of Outer Space, U.N. Doc. (A/AC.105/PV.22) (Sept. 13 1963); ANDREW J. YOUNG,

LAW AND POLICY IN THE SPACE STATIONS ERA 148 (1989); ANDREW G.
HAILEY, SPACE LAW AND GOVERNMENT 232 (1963).
68 Agreement among the Government of Canada, Governments of Member States of

the European Space Agency, the Government of the Japan, The Government of the
Russian Federation, and the Government of the United States of the America Concerning
Cooperation on the Civil International Space Station, entered into force Jan. 29, 1998, art.
11, Temp. St. Dept No. 01-52, CTIA No. 10073.000.
12

similar assumption by nations in the US-ESRO agreement concerning activities aboard the
Spacelab.69
Additionally, State practice demonstrates that States authorise space activities
involving their nationals wherever they are carried out. 70 Licensing is one of the primary
methods by which States carry out their duty to authorise and supervise private space
activities under Article VI,71 and is thus subsequent practice which establishes the consensus
regarding interpretation.72 Thus, the State of Rastalia will be liable as Jordan Tech Co. Ltd is
a Rastalian enterprise,73 run by Rastalian citizens, in partnership with the Rastalian
government74 and under their control in terms of sanction and regulation.75
Further, the appropriate State is required to authorize and continually supervise the
launch activities of non-governmental entities.76 The Appropriate State is the State where
the private company carrying on space activities has its principal place of business, the State
69 Agreement between the Government for the United States of America and Member States

of the European Space Research Organisation, for a Cooperative Programme

Concerning Development, Procurement and the Use of Space Laboratory in
Conjunction with the Space Shuttle System, in SPACE STATIONS : LEGAL ASPECTS
OF SCIENTIFIC AND COMMERCIAL USE IN A FRAMEWORK OF TRANSATLANTIC
COOPERATION, 239 (Karl-Heinz Bockstiegel ed., 1985).
70 Review of the Concept of the Launching State, UN Secretariat, UNCOPUOS, U.N. Doc.

No. A/AC.105/768 (2002); Space Activities Act, (No. 123) part 1, div.3, (1998 as amended)
(Aust.); About Space Activity, Decree No 104, art. 9(2) (1993) (Russ.); Space Affairs Act,
art.1, (No. 84 of 1993), (S. Afr.); Outer Space Act, ch.38, S.1, (1986) (U.K.); Commercial
Space Launch Act, 49 U.S.C. 701, 70101 (7), (1984) (U.S.).
71 Commercial Space Launch Act, 49 U.S.C. 701, 70101 (7) (1984) (U.S.); PETER

P.C.HAANAPPEL, Possible Models for Specific Space Agreements, in SPACE

STATIONS: LEGAL ASPECTS OF SCIENTIFIC AND COMMERCIAL USE IN A
FRAMEWORK OF TRANSATLANTIC COOPERATION 63 (Karl-Heinz Bocksteigel ed.,
1985).
72 VCLT, art. 31(3).
73 Comprimis Para 5
74 Compromis Para 5, 6, 7
75 Id.
76 OST, art. VI
13

under whose laws the company is incorporated or the State where the production of
instruments takes place.77 As the State with effective control and the strongest jurisdictional
tie to the launch,78 Rastalia is the appropriate state and is liable for the damaged caused by
Lavotto-I.
2.2 Rastalia was negligent with respect to the development of its spacecraft and is
liable for the damage caused as a result of the manufacturing defects.
No exoneration whatsoever shall be granted in cases where the damage has resulted from
activities conducted by a launching State which are not in conformity with international law
including, in particular, the Charter of the United Nations and the Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer Space, including the
Moon and Other Celestial Bodies (the Outer Space Treaty) 79. Here, the absolute liability
lies upon Rastalia as they abandoned Lavotto-I, classifying it a derelict object, in
contravention of Article II and Article VI of the Outer Space Treaty.
States Parties to the Treaty shall bear international responsibility for national activities in
outer space, including the moon and other celestial bodies, whether such activities are carried
on by governmental agencies or by non-governmental entities, and for assuring that national
activities are carried out in conformity with the provisions set forth in the present Treaty. The
activities of non-governmental entities in outer space, including the moon and other celestial
bodies, shall require authorization and continuing supervision by the appropriate State Party
to the Treaty80. Thus, Rastalia is liable for the damages caused to Couleur by its satellite
Lavotto-I.
77 PETER P.C. HAANAPPEL, THE LAW AND POLICY OF AIR, SPACE AND

OUTER SPACE: A COMPARITIVE APPROACH 60 (2003); Bin Cheng, Article VI of the

1967 Space Treaty Revisited: International Responsibility, National Activities, and The
Appropriate State, 26(1) J. Space. L. 7, 28 (1998); Ricky J. Lee, Liability Arising From
Article VI of the Outer Space Treaty: States, Domestic Law and Private Operators, 48
Proc. Colloq. Outer Sp. 216 (2005).
78 Compromis Para 5, 6, 7.
79 Convention on International Liability for Damage Caused by Space Objects, article VI

(2).
80 Treaty on Principles Governing the Activities of States in the Exploration and Use of

Outer Space, including the Moon and Other Celestial Bodies, article VI.
14

States are under a duty to minimize the potential for break-ups during operational phases
and during the design of spacecraft or orbital stages; each program or project should
demonstrate, using failure mode and effects analyses or an equivalent analysis, that there is
no probable failure mode that might lead to accidental break-ups. 81 If such failures cannot be
excluded, the design or operational procedures should minimise the probability of their
occurrence. During the operational phases, a spacecraft or orbital stage should be periodically
monitored to detect malfunctions that could lead to a break-up or loss of control function. 82 In
case a malfunction is detected, adequate recovery measures should be planned and executed;
disposal and passivation measures for the spacecraft or orbital stage should be planned and
conducted83.
Rastalia should be held liable for using a never-before used material that was fragile in
nature. Being fragile in nature, Lavotto-I broke into fragments as soon as it came into contact
with Couleurs grappling arm. The States Parties attract responsibility only if it is established
that they have failed to exercise the required due diligence or to procure proper satisfaction
and reparation for the wrong done.84 It is submitted that Rastalia has done neither and should
be held liable under international slaw for the damage caused by the break-up of the LavottoI satellite.
3. Banche is not liable under international law for the costs of recovery of Couleur, the
rescue and medical expenses for Commander Borsch, the costs of the evacuation of
Lake Taipo, and the deaths of both Mr. Thomas and Mr. Barton.
According to the Convention on International Liability for Damage Caused by Space
Objects (Liability Convention), the provisions of this Convention shall not apply to damage
caused by a space object of a launching State to nationals of that launching State. 85 Therefore,
81 IADC Space Debris Mitigation Guidelines, guideline no. 5.2.2
82 Id.
83 Id.
84 See, Ian Brownlie, Principles of Public International Law, (6th edition. 2004) at p. 425.
85 Convention on International Liability for Damage Caused by Space Objects, article VII:

The provisions of this Convention shall not apply to damage caused by a space object of a
launching State to: (a) Nationals of that launching State; (b) Foreign nationals during such
time as they are participating in the operation of that space object from the time of its
15

in the present case, Banche being the launching state cannot be held responsible for cost of
rescue and medical expenses of Commander Borsch, a Banche national.
According to Article 2 of The Return and Rescue Agreement 1968, if owing to
accident, distress, emergency or unintended landing, the personnel of a spacecraft land in
territory under the jurisdiction of a Contracting Party, it shall immediately take all possible
steps to rescue them and render them all necessary assistance. Hence it becomes the
responsibility of the state on whose territory the spacecraft has landed to take due care of the
personnel of the spacecraft. It is submitted therefore that Rastalia cannot demand
compensation for the process of rescue and recovery of personnel onboard the Couleur.
The Liability Convention provides that a State which suffers damage or whose
natural or juridical persons suffer damage, may present a claim for compensation for
such damage.86 It provides for absolute liability for damage caused on the surface of the
Earth.87 While the term caused is not defined in the Liability Convention, the drafters of the
Convention recommended that it should be interpreted flexibly.88 The phrase caused by
used in the definition of damage under the Liability Convention, requires only a causal
connection between the accident and the damage

caused,

irrespective

of

physical

impact.89
In fact, the travaux prparatoires indicate that originally the term collision was used
which was later rephrased as caused by due to the mutual agreement by States that not all
damage was a result of physical contact.90 This implies that a physical impact is not
necessary for a claim under the Liability Convention. Such an interpretation is
launching or at any stage thereafter until its descent, or during such time as they are in the
immediate vicinity of a planned launching or recovery area as the result of an invitation by
that launching State.
86 Liability Convention, art. VIII (1)
87 Liability Convention, art. II.
88 Carl Q. Christol, THE MODERN INTERNATIONAL LAW OF OUTER SPACE 96

(1982).
89 Jochen Pfeifer, International Liability for Damage Caused by Space Objects, 30 GER. J.

AIR & SPACE L. 242 (1981); WF Foster, The Convention on International Liability
for Damage caused by Space Objects, 10 CANADIAN YEARBOOK OF
INTERNATIONAL LAW 155 (1972) [hereinafter Foster].
16

supported by the victim-oriented purpose of the Convention. 91 The drafters contemplated

adequate causality, as opposed to direct causality, as sufficient to justify compensation for
damages.92
What, therefore, must be determined here is the locus of causality. Since the drafters have
created room for indirect causality to inference the actual cause of the damage, it is submitted
that this Court should follow their approach. Attribution herein cannot arise out of
countermeasures taken in self-defense to safely land the space craft, to protect the lives of the
individuals therein and the spacecraft itself. Attribution must seek to find itself in the
circumstance that caused the spacecraft to be so disposed and in such a state as to have had to
have an emergency landing in the first place. In the present case, the locus of attributability
clearly lies with the state of Rastalia; it was debris from the Lavotto-I that caused damage to
the Couleurs communications and flight control systems, which in turn lead to the
emergency landing.
Therefore, fault liability within the bounds of reasonableness and foreseeability
must lie in the root cause of the incident, since while conducting and emergency landing
procedure one cannot reasonable be asked to foresee a duty to protect ones surroundings as
well as the spacecraft being landed. Therefore, in the instant case, it is Rastalia that is liable
for the deaths caused by the emergency landing and the damage cause to the Lake site.

PRAYER FOR RELIEF

Banche respectfully requests this Honourable Court to adjudge and declare that:
(a) Rastalia violated international law by refusing to return Couleur and Commander
Borsch to Banche and refusing the earlier return of MS. Paula to Banche.
(b) Rastalia is liable under international law for damage to Couleur.

90 U.N. GAOR, 9th Sess., at 52, UN Doc. A/AC.105/C.2/SR.94 (July. 3rd, 1968)

(French, Canadian & Italian delegate).

91 CHRISTOL at 211; BIN CHENG, STUDIES IN INTERNATIONAL SPACE LAW 314

(2004).
92 Bin Cheng, Convention on International Liability for Damage Caused by Space Objects,

in MANUAL ON SPACE LAW 83 (1979).

17

(c) Banche is not liable under international law foe costs of recovery of Couleur, the
rescue and medical expenses for Commander Borsch, the costs of the evacuation of
Lake Taipo, and the deaths of both Mr. Thomas and Mr. Barton.

Respectfully Submitted,
(Agents of Banche)

19