The case of force majeure in space law

Force majeure clause is a provision in a contract that excuses a party from not performing its contractual obligations that becomes impossible or impracticable, due to an event or effect that the parties could not have anticipated or controlled. These events include natural disasters such as floods, earthquakes and other “acts of God”, as well as uncontrollable events such as war or terrorist attack. Force majeure clauses are meant to excuse a party provided the failure to perform could not be avoided by the exercise of due diligence and care.

In French positive law, the first paragraph of Article 1218 of the Civil Code requires the combination of three elements so that force majeure is characterised: an impediment to execution caused by an event beyond the control of the debtor (first condition), reasonably unpredictable at the time of conclusion of the contract (second condition), and the effects of which cannot be avoided by appropriate measures (third condition).

The U.N. International Law Commission defines it as: “The impossibility of acting legally is the situation in which an unforeseen event outside the will of the party invoking it, the makes it absolutely impossible to comply with its international obligation under the principle that no one is obliged to do the impossible”. The principle being, whoever justifies being forced by force majeure, escapes all responsibility. The case of force majeure in outer space can therefore only be conceived from the point of view of liability for damage caused by space objects and the consequences of such a situation. The 1972 Liability Convention (Convention on International Liability for Damage Caused by Space Objects) establishes a dual system of liability. First, Article I provides that a launching State has the absolute responsibility to pay compensation for damage caused by its space object to the surface of the Earth or to aircraft in flight. Second, Article III provides that in the event of damage caused, other than on the surface of the Earth, to a space object of a launching State or to persons or property onboard such a space object, by a space object of another launching State, the latter State is only liable if the damage is attributable to its fault or to the fault of the persons for which it must answer.

No exemption from liability is therefore provided for in the agreement if a natural disaster is the cause of the accident caused by the space object. The general feeling was that, by exonerating the launching State from its responsibility in such a circumstance, the effects of the principle of absolute responsibility would to a large extent be nullified for the purposes of the Convention. However, when it comes to space activities, certain aspects of the problem of responsibility acquire greater importance, in particular, cases of force majeure which are likely to multiply due to possible encounters with meteors, or as a result of a malfunction or the accidental stopping of on-board guidance devices. This question of exemption due to force majeure was therefore examined by the Committee on the Peaceful Uses of Outer Space (COPUOS) and its Legal Subcommittee, in connection with a proposal presented in 1965 by Hungary which mentioned “natural disasters” among the grounds for exemption.

Article VI of the Draft Agreement brought by Hungary proposed that: “If the damage has occurred on the ground or in the atmosphere, the exemption of responsibility can be granted only to the extent that the responsible State produces proof that the damage resulted from a natural disaster or from an intentional act or gross negligence of the State victim of the damage”. So, the sudden appearance of an asteroid or comet, could have been force majeure at the start of the space conquest, which is no longer the case today. Nowadays, it is possible to track down an asteroid or assess the regular trajectory of a comet. However, current scientific and technical advances cannot yet predict everything.

For example, Solar Flares are more difficult to accurately predict. The “weather” of the Sun is still difficult to predict in the long term. The activity of the Sun varies a lot and the solar cycles are irregular. A violent and unforeseen Solar Flare by astronomers, which would damage the equipment of a satellite, due to its electromagnetic disturbances, could be considered as a case of force majeure in outer space.

The explosion of a supernova could also constitute a case of force majeure. This would release a large amount of cosmic rays which could damage the electronic equipment of spacecraft. Such effects would be unpredictable, both in their magnitude and in their timing. The duration can be short or very long, depending on the intensity and proximity of the phenomenon. There is currently no spacecraft protection system capable of fully preventing equipment disturbances linked to such explosions.

Similarly, space debris among those present in Low Earth Orbit (LEO), not listed because less than ten centimetres in size, could cause damage to a satellite or even compromise a launch. If it is established that these debris did indeed cause the damage, force majeure may be claimed, insofar as it is impossible to predict the presence of these small debris. However, the company which would seek to assert this force majeure could be criticised for not having sufficiently protected its satellite, by shielding capable of limiting the damage linked to micro-debris. However, the use of such shielding remains marginal, since each kilogram of material sent into space is very expensive.

Finally, on the case of force majeure in space law, perhaps more imaginatively (although nothing is less certain), an alien spacecraft travelling at the speed of light (such as the Millennium Falcon, a fictional starship in the Star Wars franchise) could hit a satellite. Such an event would constitute a case of force majeure. The idea therefore of taking into account this fortuitous risk to release the responsibility of the States is strictly necessary all the more, that it is necessary to take into account the probability of enormous damages amounting to billions and of which, consequently, no State would want to assume full responsibility and no consortium of insurance companies would agree to cover. That is what can be said concerning the case of force majeure in space law.

This article was written by Soraya MOUHOU (Paris-Saclay).