Legal issues concerning a Chinese booster which crashed in a rural area

For this new Space Law article, let us study the space legal issues concerning a Chinese booster which crashed in a rural area. China’s space program is described as an ambitious and flourishing one, demonstrating the willingness of President Xi Jinping to place China as a leader in space exploration. However such an ambitious program is not without its own risks.

According to the China National Space Administration, on November 23, 2019, China launched a Long March-3B rocket to put two navigation satellites BeiDou into orbit from the launching site of Xichang, located in the Sichuan province. This launch was the three hundred and nineteenth one with the Long March launcher. Still according to the statement of the Chinese space agency, the two satellites have successfully placed themselves in orbit. However if the launching was successful in placing the navigation satellites into Medium Earth orbits (MEOs), one of the Chinese booster crashed and hit a rural village near the launching site of Xichang.

The accident was relayed on social networks and especially on the national social network Weibo where the videos published of the accident allow us to witness the damages. We are able to note how the numerous debris of the booster impacted and destroyed several homes of the village. Thus, we can observe one part of the booster that crashed into the roof of a house as well as a lot of debris scattered on agricultural fields. But one thing raised major concerns: the yellow smoke rising from the debris. The yellow smoke is actually hypergolic propellant which is a very toxic substance. Hypergolic propellant is mainly used in different rocket and aircraft systems as a mean for propulsion and hydraulic power. In this way, orbiting satellites, manned spacecraft, military aircraft as well as deep space probes are using hypergolic propellants. According to a NASA’s report, hypergolic propellants are “toxic liquids that react spontaneously and violently when they contact each other”. The toxicity of this substance is then established. According to journalist Andrew Jones, the inhabitants of the village where the booster crashed were told by the authorities to stay away from the wreckage due to the toxicity of these fluids.

Actually, it’s not the first time that such an accident has taken place. One of the most important accident in this genre happened back in 1996 when a Chinese rocket crashed into the village near the launching site of Xichang which caused the death of six people according to the Chinese authorities, up to hundreds according to foreign sources. One of the most recent one happened last year in 2018. Indeed in April 2018, the Chinese Space Station Tiangong-1 failed and hurled back to Earth. As the crash site was unknown, it rose a few concerns among the international community and fortunately, the station disintegrated as it entered the atmosphere.

At the lights of these events, we can wonder why are the Chinese rocket more likely to cause damage and fall back on Earth rather than the American, European or Russian rockets? One of the cause for this problem is the fact that the Chinese launching sites are located inside the land and not along the coastlines, which will cause the rocket’s boosters to fall back over inhabited village when the American, European or Russian rockets will crash into the oceans. Space debris are a major issue of the Chinese Space program. As these kind of accidents seem to happen quite frequently, what is the legal basis on which we will be able to rely on?

From 1963 to 1972, the Convention on International Liability for Damage caused by Space Objects or also called the Liability Convention, was considered and negotiated. The agreement was reached in the General Assembly in 1971 and the Convention entered into force in 1972. In its article II, it established that a launching party is “absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft”. The Convention specifies that the word “Damage” means “loss of life, personal injury or other impairment of health, or loss of or damage to property of states or of persons, natural or juridical, or property of international intergovernmental organizations”.

China has not ratified the Liability Convention but has acceded it in 1988. According to the United Nations, “accession” is the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states. It has the same legal effect as ratification. Both of these expressions have the same involvement, the States who acceded to a Convention have the same rights and obligations as those States that ratified the Convention. The difference only lies in a difference of terminology: a Convention is open for signature for a defined period. When this period is over and a State wants to become a party, it may only accede it.

In this specific case, it’s a Chinese booster that caused damages on a Chinese village. There is no involved foreign state in this accident. It will likely be that the Chinese government is going to give some financial compensation to the inhabitants whose house were shattered by the Chinese booster. Considering the political regime of China, and even if the People’s Republic of China is considered as liable according to the Liability Convention of 1972, it’s very unlikely that the Chinese people will claim for compensation or sue the government.

But what would happen if the Chinese booster crashed on the territory of any other State? The article II of the Liability Convention would apply and the State whose space object (here the Chinese booster) caused damages on the territory of another State shall be liable to pay compensation. Furthermore, the article VIII of the Convention states that “a State which suffers damage or whose natural or judicial persons suffer damage, may present to a launching State a claim for compensation for such damage”. There is then a possibility of one State to claim compensation. However, there are more questions that arise: how the amount of compensation for damages will be calculated and who will define it? Will it be possible to amicably settle it? If not, in front of which jurisdiction of which country?

The Liability Convention defined a few procedural rules to settle these issues. First, the Convention favors diplomatic negotiations to settle the claim. But if no settlement was found within a certain period of time, a Claims Commission should be established that would act as an arbitration tribunal, whose composition and procedure are defined in the article XV and XVI. In the end, it will be the Claims Commission that will decide the merits of the claim for compensation as well as determine the amount of compensation to pay. One major point of the Convention is that the decision of the Commission is final and binding if the parties have agreed to, which is quite important in order to avoid any blockage that would eventually penalize the civilian casualties.

Concerning the hypothetical situation where one state causes damages to another state but this time in outer space, the solution lies in the article VI and VII of the Outer Space Treaty of 1967. The article VI established that “State 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 international responsibility for one’s national activities is reinforced in the article VII states that “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is Internationally liable for damage to another State Party to the Treaty”.

In a nutshell, international responsibilities have been established for one’s space activities, whether the damages lies on the surface of the Earth or in outer space. As space exploration will only continue to grow and as the number of launching, satellites, boosters and so on will also only continue to grow exponentially, more and more situations involving damages caused by space debris will happen. However as new technologies, and especially with SpaceX‘s reusable launch system program, continue to be implemented, we may find a lasting solution to this problem. This is what can be said concerning the Chinese booster which crashed in a rural area.