On the night of November 16-17, 2020, the French Taranis satellite, conceptualised by the French Atomic Energy and Alternative Energies Commission (CEA) and the French National Center for Scientific Research (CNRS), took off from the Guyana Space Center in Kourou, aboard the European Vega rocket, in order to study, for a duration of 2 to 4 years in orbit, the transitory light phenomena caused by storms. Unfortunately, this mission ended in failure, since the satellite was lost only 8 minutes after its launch.
This study would have been a spectacular breakthrough in the field, since these light phenomena are still a mystery today. Indeed, transient light phenomena had been studied for the first time in 1994 by the Compton Gamma-Ray Observatory, the observatory of celestial sources of X-rays and gamma rays embarked on the American shuttle Atlantis. Other complementary studies had been made thereafter, in particular within the Italian space laboratory Clay in 2007 and with the American space telescope Fermi in 2008, but none of these studies had made it possible to completely confirm the current assumptions on the mechanism which generated the transitory luminous phenomena, nor their number and the Taranis satellite was precisely to bring additional information on their appearances, their mechanism and their radiative impact.
A commission of inquiry was opened following this incident by Arianespace and the European Space Agency, in order to understand the origins of this mission’s failure. According to initial analyses, the destruction of the satellite was caused by an anomaly encountered on the Vega rocket that deviated its trajectory. It is 15 years of design and work on this satellite that were thus destroyed.
This failure, unfortunately, is not the only launch failure in the space world since the creation of the conquest of space. Space accidents are numerous and can sometimes lead to the death of astronauts when they are sent on a space mission. These accidents then lead to legal questions, not only in terms of space environmental law, since space accidents result in a lot of space debris that is dangerous for human security, but also on the question of who is responsible for space accidents.
The failures of the European launcher Arianespace’s space missions in the history of the conquest of space since the launch of Ariane 1
The Ariane 1 rocket took off for the first time on December 24, 1979. In 1973, after the repeated failures of the Europa rocket, the European Space Agency (ESA) launched the Ariane program to ensure Europe’s access to space independently of the United States and Russia. The prime contractor is entrusted to France through CNES, and the first rocket will carry out 11 launches (including two failures) between 1979 and 1986.
The first launch failure took place on May 23, 1980 during the second launch attempt of the Ariane 1 rocket. The launcher explodes at the time of takeoff. On September 9, 1982, another Ariane 1 rocket stopped a few minutes after takeoff and grounded in the Atlantic Ocean.
The second failure takes place in 1985, at the time of the launch of the Ariane 3 rocket, one year after its first launch. Then, in the 1990s, Arianespace considerably accelerated the pace of its missions with the development of the telecommunications sector. More powerful than its predecessors, Ariane 4 successfully completed its first launch on June 15, 1988. Until 2003, the rocket carried out 116 missions, including three failures, to put more than 180 satellites into orbit. It triples the capacity of Ariane 3 by being able to carry payloads ranging from 2,000 to 4,800 kilograms.
Finally, on June 4, 1996, the first launch of the Ariane 5 rocket took place, which ended in failure. During its first launch, the rocket deviated from its trajectory and had to be self-destructed by Arianespace teams. The rocket’s debris fell as rain in the Guyanese jungle, and the police had to evacuate certain areas because of the risk of toxic gas. The second launch on October 30, 1997 ended in partial failure. It was not until October 21, 1998 with the V-112/503 mission that the first success of Ariane 5 was observed. With 106 launches between 1995 and 2019, Ariane 5 experienced a second failure on December 11, 2002, for the inaugural flight of the Ariane 5 ECA version. The shuttle exploded and losses were estimated at 640 million euros in a difficult period for the large satellite market. Mission failures are therefore frequent risks associated with this activity, which is why international law has provided a framework for this activity.
The Legal Regime Applicable to Liability for Damages Related to Space Activities
Many damages can occur as a result of space activities. To regulate this, there is a regime applicable to liability for damage caused by space objects.
Thus, what would have been the liability regime if the Taranis satellite, when it exploded in airspace, had caused damage to third parties ?
To answer this question, reference should be made to the 1972 International Treaty on International Liability for Damage Caused by Space Objects. It follows from this regime that States, considered as launching States under the Treaties (the 1967 Space Treaty laying the common ground for all the general principles of space law), bear an obligation to register space objects, as well as liability. First of all, launching States have an obligation to register space objects in order to determine the nature and origin of an object launched into space, but also to know which State will bear the international responsibility attached to this space object. In the absence of registration, the launching State will not be able to benefit from the provisions of space law and general public international law will have to be applied. As far as liability is concerned, it has a double meaning. First, there is liability for damage caused to third parties as a result of a space operation. This liability is qualified as absolute as soon as damage is caused on earth or in the airspace, the victim is thus exempted from proving the fault of the launching State, it will be up to him to prove that he has suffered damage caused by a space object. The objective here is to facilitate recourse by victims against a launching State.
On the other hand, what would happen if the Taranis satellite was actually in orbit in outer space, and had collided with another satellite ?
In this case, the 1972 treaty provides that the liability is “for fault” as soon as the damage occurs in outer space. This is explained by the fact that here, the damage is caused to another launching State under the Treaties. It would therefore have been necessary for the State injured by the collision to prove fault on the part of the French space agency in order to engage the liability of France for the damage caused by the collision of the Taranis. Of course, this regime applies as long as the victim of the damage is a State, but what if the Taranis satellite had been sent by a private company ? Indeed, the 1970s and especially the 1980s saw the rise of private and commercial space activities, in particular through the creation of private launch companies that made it possible to offer launch services to private companies operating commercial satellites.
As a result, space law had to adapt to these new purely private activities. The United States was the first State to adopt legislation dedicated to space activities carried out by private entities under the application of US law (US Commercial Space Launch Act of 1984, amended several times). Other states, such as Great Britain (Outer-Space Act of 1986), quickly followed the United States. It was not until 2008 that France adopted legislation specific to space activities with the adoption of the Space Operations Act of 3 June 2008, number 2008-518.
These national legislations have different scopes of application, but have in common the fact that the activities of private entities falling under the application of these laws are regulated by means of authorization or licensing regimes. Indeed, States bear international responsibility under the international treaties for space activities carried out by private national entities, and it is therefore imperative that they authorize, control and monitor private or commercial space activities. States will subsequently be able to bring a recourse action against the private company.
In any event, despite the failure of the Taranis mission and the risks that space activities can represent, the players involved in the Taranis project are already thinking about the next launch: “We will correct and come back stronger“, said Arianespace’s CEO, who offered his “apologies” to the customers and builders of the lost satellite, while assuring that future launches operated by Arianespace would be maintained.
Jean-Louis Pinçon, in charge of scientific coordination of the project for the CNRS, also confirmed on Wednesday, November 18, 2020, the willingness to retry a new Taranis project: “We are already studying the possibility of a Taranis 2. The first feedback from CNES on this subject is very positive and we have started to think about what this will imply in terms of budget and human resources. But it is still too early to say that the reconstruction of Taranis is a given“.