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 RASTALIA

TABLE OF CONTENTS

TABLE

OF

AUTHORITIES.

.III
STATEMENTS

OF

FACTS

.VIII
QUESTIONS

PRESENTED

......

..XIV
SUMMARY OF ARGUMENTS........XV
ARGUMENTS ADVANCED...1
1. Rastalia acted in conformity with international law by refusing to return Couleur and
Commander Borsch to Banche and refusing the earlier return of MS. Paula to Banche...1
1.1 Rastalia acted in conformity with international law by refusing to return
Couleur...1
1.1.1 The Space object is of a harmful and hazardous nature and need not be returned1
1.1.2 The space object contains an unlawful weapon of mass destruction and is violative of
the outer space treaty......................3
1.1.3 The satellite is a failed satellite..6
1.1.4 Alternatively, that there is no time schedule prescribed for return of the object.
1.2 Rastalia acted in conformity with international law by refusing to return Commander
1.2.1

Borsch7
The conduct of Commander Borsch while landing does not warrant his return...........9

1.3 Rastalia acted in conformity with international law by refusing the earlier return of Ms.
Paula to Banche....10
2. Rastalia is not liable under international law for the damage to Couleur..13
2.1 Banche is liable for the damage caused by Couleur as it is the launching state.13
3.

Banche is 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..19

PRAYER FOR RELIEF..xix

INDEX OF AUTHORITIES
2

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

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

8
5

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
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.
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
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
9

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
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
10

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
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
11

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,
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 acted in conformity with international law by refusing to return Couleur
and Commander Borsch to Banche and refusing the earlier return of Ms. Paula to Banche?
II
Whether Rastalia is not liable under international law for the damage to Couleur?
III
Whether Banche is 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?

13

SUMMARY OF ARGUMENTS
I. There is no recovery or return obligation imposed on the contracting party with respect to
hazardous or deleterious objects.

The duty to eliminate possible danger or harm in

connection with such objects devolves upon the launching authority. The obligation of the
launching authority arises upon receipt of notice from the contracting party that a space
object or its component parts discovered in territory under its jurisdiction, or recovered by it
elsewhere, is of a hazardous or deleterious nature. The obligation of the launching authority is
mandatory upon receipt of the notification, that is, it must immediately take effective steps,
under the direction and control of the contracting party, to eliminate possible danger or harm.
In the instant case the space object is armed with a weapon of mass destruction that was used
to obliterate pieces of the Satellite Lavotto I. This weapon was suspected to be nuclear
initially, however even though no radiation was found, the weapon is still hazardous. The
weapon has been found and quarantined on Rastalian soil, and clearly satisfies the criterion
above for a hazardous object. In the present case, both the parties are the member states of
United Nations Committee on the peaceful uses of Outer space (COPUOS) which implies
14

that Rastalia is not bound to return Couleur to Banche. Banche itself has the obligation to
quarantine and secure this space object and thereafter to remove it. Accordingly, Rastalia has
not violated international law by refusing to return Couleur.
Articles III, IV and IX of the OST are the provisions which contain regulation and clauses
that have a direct effect on the development, deployment and use of Anti-Satellite weapons
(ASAT Weapons). In the instant case, Banche is in violation of all of the above provisions of
the Outer Space Treaty. Banche has in the instant case developed a space weapons technology
that is potent enough to be described as a weapon of mass destruction, since it can destroy
objects as massive as a satellite with its extremely powerful lazer beam. Banche has also
mounted the same on a space vehicle designated for a tourist flight with a space tourist on
board and have used the same to carry out and commission a demolition exercise in outer
space.
In the instant case therefore Banche has developed and launched an ASAT device without
prior consultation and knowledge of the entire international community and in the process
has also put in danger the life of a civilian tourist who had paid for his ticket voluntarily.
These aggravated violations of both the Outer Space Treaty and the UN Charter constitute
grave breaches of maintenance of international peace and security and will not only incur
heavy sanctions on behalf of Banche but render Banche without a defense since all said acts
are affected by the standards of absolute liability per the liability convention.
Once a satellite is launched, it is beyond the control of human beings, and therefore its flight
is analogous to the flight of a meteor. As a meteor is the property of the nation in which it
lands, a spent satellite would also be the property of the nation in which it lands, regardless of
its point of origin. The Couleur in the instant case is akin to the nature of a falling object
since its communications and navigation systems have failed. Since it is a falling object, from
outer space, being treated the way it ought to be, it belongs to the state whose jurisdiction it
falls in. Therefore Couleur is property of Rastalia and Rastalia acted in conformity with
international law by refusing to return Couleur. That being said, that there is no time schedule
prescribed for return of the object.
Banche and Rastalia are Member States of the United Nations. According to statement of
facts, Commander Borsch asked for political asylum in Rastalia. According to the Universal
Declaration of Human Rights, it is the right of an individual to leave any country including
his own. In the present case, as stated in statements of facts, it thus becomes the right of
15

Commander Borsch to leave any country including his own i.e. Banche which eventually
proves that Rastalia has not violated international law by refusing to return Commander
Borsch to Banche. Further, it is established under Declaration on Territorial Asylum adopted
by General Assembly of United Nations that asylum granted by States in the exercise of its
sovereignty to the persons entitled to invoke Universal Declaration of Human Rights, Article
14 shall be respected by all other states.
Article VIII makes no provision for persons who do not form part of the personnel (equipage,
in the French text of the Rescue Agreement) of a space object, for instance, passengers or
visitors from another spacecraft. Generally, though, personnel of a spacecraft have thereafter
been limited to the crew of the spacecraft that operate the spacecraft and are generally
astronauts. In the present case, the above statement indicates that Ms. Paula was a space
participant and not a personnel of spacecraft. Ms. Paula has been loosely described as a
scientist who won an award in science and technology. It is further also made clear to us that
her trip is funded by the government. But at no point does the compromis show that Ms.
Paulas presence was needed to steer the craft or that she assisted Commander Borsch who
seemed to be manning the craft, the robotic arm, the laser and the landing by himself. In the
instant case, the purpose of Ms. Paula on this semi commercial space flight is unknown and
therefore she cannot be considered a personnel of the spacecraft. Thus, Rastalia acted in
conformity with International law by refusing the earlier return of Ms. Paula to Banche.
II. According to Article VIII of the Outer Space Treaty, 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. Banche violated international space law by sanctioning the space flight
of Couleur and is also liable for the damages caused by said flight. Procurement by a State
occurs when it or its nationals are actively involved in acquiring, securing or bringing about
the launch. The State that brings complicity to the launch meets the threshold of
procuring the launch. Manufacturing has been acknowledged as falling within the term
procuring. The Couleur space craft was developed and manufactured on Banche soil and
with the authorisation and support of the government of Banche. Even though the company
that manufactured the space craft is not originally from Banche, it has its sister entity
incorporated on Banche soil and it is with the approval of the government and collaboration
that this craft has been thus assembled and tested on Banche soil. Couleur was licenced by
Banche for its space mission to be launched at Bance space station. Further, by registering the
Couleur , Banche has accepted its liability for any damage caused by it.
16

According to Article 1(c) of the Convention on International Liability for Damage Caused by
Space Objects Exoneration from absolute liability shall be granted to the extent that a
launching State establishes that the damage has resulted either wholly or partially from gross
negligence or from an act or omission done with intent to cause damage on the part of a
claimant State or of natural or juridical persons it represents. However, in the present case,
the statement of facts proves that the damage caused to Couleur is due to its own fault, as it
used the GODA laser beam which resulted in breaking of Lavotto-I. It thus proves that
Rastalia can be exonerated from absolute liability.
The root of the damage caused and the accident remains the usage of the laser beam GODA
on board Couleur and thereafter the landing of the craft itself, therefore only Banche will be
absolutely liable for all damages.
III. 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. It provides for absolute liability for damage caused on the surface of the
Earth. Expenses incurred in fulfilling obligations to recover and return a space object or its
component parts under the provisions of Return and Rescue Agreement (each Contracting
Party having jurisdiction over the territory on which a space object or its component parts has
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; 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) shall be borne by the launching
authority. Banche can therefore be considered liable to pay for cost of recovery of Couleur.
If the State of nationality has not presented a claim, another State may, in respect of damage
sustained in its territory by any natural or juridical person, present a claim to a launching
State. Rastalias government can therefore claim compensation on behalf of Commander
Borsch, who is a Banche citizen, seeking political asylum in Rastalia.

17

ARGUMENTS ADVANCED

1. Rastalia acted in conformity with international law by refusing to return Couleur and
Commander Borsch to Banche and refusing the earlier return of MS. Paula to Banche.
1.1 Rastalia acted in conformity with international law by refusing to return Couleur.
1.1.1 The Space object is of a harmful and hazardous nature and need not be returned.
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

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.
18

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
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.
Further, the international protection of astronauts and space objects lays down that,
generally, 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. 9 Should the
spacecraft personnel alight on the high seas, or in any other place not under the jurisdiction of
3 Id.
4 Id.
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 Agreement, [1968] 19 U.S.T. 7570, T.I.A.S. No. 6599, art. 2.
2

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.10
However, According to the international protection of astronauts and space objects 11,
it is established in the treaty of principles governing the state in exploration and use outer
space, including moon and celestial bodies that a state is not liable to return a space object to
launching authority if it is considered dangerous and damaging.12
There is no recovery or return obligation imposed on the contracting party with
respect to hazardous or deleterious objects. 13The duty to eliminate possible danger or harm in
connection with such objects devolves upon the launching authority. 14The obligation of the
launching authority arises upon receipt of notice from the contracting party that a space
object or its component parts discovered in territory under its jurisdiction, or recovered by it
elsewhere, is of a hazardous or deleterious nature. The obligation of the launching authority is
mandatory upon receipt of the notification, that is, it must immediately take effective steps,
under the direction and control of the contracting party, to eliminate possible danger or
harm.15
The contracting party is not required to have definite knowledge of the harmful or
hazardous nature of the object. It is sufficient if the party has reasonable grounds to believe
that the object has such characteristics. Fuel, for example, may be harmful or dangerous.
Liquid hydrogen is extremely explosive and has to be cooled several hundred degrees below
zero to make it safe. Atomic propulsion may also be involved and in such case unchecked
radiation, like fallout, may constitute a real danger in certain accidental situations. 16

10 Agreement, [1968] 19 U.S.T. 7570, T.I.A.S. No. 6599, art. 3

11 Stephen Gorove, International Protection of Astronauts and Space Objects , 20 DePaul L.

Rev. 597 (1971)

12 Id.
13 Agreement, [1968] 19 U.S.T. 7570, T.I.A.S. No. 6599, art. 5, 4. Cf. textual discussion

under HAZARDOUS OR DELETERIOUS OBJECTS, infra.

14 Agreement, [1968] 19 U.S.T. 7570, T.I.A.S. No. 6599, art. 5, 4.
15 Agreement, [1968] 19 U.S.T. 7570, T.I.A.S. No. 6599, art. 5, q 4.
3

The object believed or found to be harmful must have been discovered in territory
under the jurisdiction of the contracting party, or recovered by it elsewhere. 17 In the former
case, discovery itself is enough, whereas mere sighting or other form of discovery outside of
the territorial jurisdiction of the party is insufficient to make the provision operative. Thus in
the latter instance the term recovered presumably refers to possession, and until one has
possession, the launching authority is not required to take any steps. If it did, such operations
would not be under the direction and control of the contracting party. 18
Once, however, the object has been recovered, that is, possession acquired by the
contracting party, the launching authority would be obligated to take the necessary measures.
Actually, the language of the stipulation appears imprecise inasmuch as the phrase recovered
by it elsewhere means recovered in territory which would not be under the jurisdiction of the
party, a result which could hardly have been intended by the drafters. 19 In other words, the
contracting party is entitled to insist on effective steps by the launching authority to eliminate
possible danger or harm, despite the fact that not only the discovery but also the recovery
of the object took place within its territorial jurisdiction and not elsewhere.20
In the instant case the space object is armed with a weapon of mass destruction that
was used to obliterate pieces of the Satellite Lavotto I. This weapon was suspected to be
nuclear initially, however even though no radiation was found, the weapon is still hazardous.
The weapon has been found and quarantined on Rastalian soil, and clearly satisfies the
criterion above for a hazardous object. In the present case, both the parties are the member
states of United Nations Committee on the peaceful uses of Outer space (COPUOS) which
implies that Rastalia is not bound to return Couleur to Banche. Banche itself has the

16 International atomic control procedures may eventually be applied to atomic propulsion in

outer space. Cf. Gorove, International Security Controls: From the Atom to Cosmic Space,
Proc. 6TH COLLOQUIUM ON THE LAW OF OUTER SPACE 1-4 (1963).
17 Agreement, [1968] 19 U.S.T. 7570, T.I.A.S. No. 6599, art. 5, 4.
18 Stephen Gorove, International Protection of Astronauts and Space Objects , 20 DePaul L.

Rev. 597 (1971)

19 Id.
20 Id.
4

obligation to quarantine and secure this space object and thereafter to remove it. Accordingly,
Rastalia has not violated international law by refusing to return Couleur.
1.1.2 The space object contains an unlawful weapon of mass destruction and is violative
of the outer space treaty.
Articles III, IV and IX of the OST are the provisions which contain regulation and
clauses that have a direct effect on the development, deployment and use of Anti-Satellite
weapons (ASAT Weapons). Article III specifically binds the treaty parties to carry on
activities in the exploration and the use of the outer space, including the moon and other
celestial bodies, in accordance with international law, including the Charter of the United
Nations.21
Among the provisions applicable to space activities are Articles 2(3) and Article 2(4).
22

Article 2(3) of the U.N. Charter directs nations to settle their international disputes by

peaceful means in such a manner that international peace and security, and justice, are not
endangered.23 Article 2(4) requires that nations refrain . . . from threat or use of force . . . in
any . . . manner inconsistent with the purposes of the United Nations.24
Article IV of the OST establishes a clear prohibition against placing in orbit around
Earth any objects carrying nuclear weapons or any other kinds of weapons of mass
destruction.25 It reads, The moon and other celestial bodies shall be used by the state parties
to the treaty exclusively for peaceful purposes. The establishment of military bases,
fortifications and installations, the testing of any type of weapons and the conduct of military
manoeuvres shall be forbidden.26

21 OST Article 3.
22 UN Charter, Article 2(3) and 2(4)
23UN Charter, Article 2(3)
24 Article 51 of the Charter which entitles state to resort to self defense when an armed

attack occurs is subjected to this provision.

25 OST, article 4.
26 Id.
5

A reasonable interpretation of the expression any type of weapons used in the clause
would naturally include weapons with ASAT capabilities among other and would also include
destructive weaponised lasers.
Amongst the other safeguards against ASAT weapons, one of the prominent ones
would include Article IX of the OST, which directs nations to undertake appropriate
international consultations before proceeding with any activity that might cause potentially
harmful interference with the activities of other states in the peaceful exploration and use of
outer space.27 Although the exact procedure and ramification of the consultation process is
not clear, it is possible to argue that states developing ASATs should do so only after
appropriate international consultations.28
In the instant case, Banche is in violation of all of the above provisions of the Outer
Space Treaty. Banche has in the instant case developed a space weapons technology that is
potent enough to be described as a weapon of mass destruction, since it can destroy objects as
massive as a satellite with its extremely powerful lazer beam. Banche has also mounted the
same on a space vehicle designated for a tourist flight with a space tourist on board and have
used the same to carry out and commission a demolition exercise in outer space.
In the instant case therefore Banche has developed and launched an ASAT device
without prior consultation and knowledge of the entire international community and in the
process has also put in danger the life of a civilian tourist who had paid for his ticket
voluntarily.
These aggravated violations of both the Outer Space Treaty and the UN Charter
constitute grave breaches of maintenance of international peace and security and will not only
incur heavy sanctions on behalf of Banche but render Banche without a defense since all said
acts are affected by the standards of absolute liability per the liability convention. 29
1.1.3 The satellite is a failed satellite.
Once a satellite is launched, it is beyond the control of human beings, and therefore its
flight is analogous to the flight of a meteor. As a meteor is the property of the nation in
27 OST, article IX.
28 Id.
29 Liability Convention, Article II.
6

which it lands, a spent satellite would also be the property of the nation in which it lands,
regardless of its point of origin. 30
In present case according to statement of facts, Couleur made an unintended landing
in Rastalia. The Couleur in the instant case is akin to the nature of a falling object since its
communications and navigation systems have failed. Since it is a falling object, from outer
space, being treated the way it ought to be, it belongs to the state whose jurisdiction it falls in.
Therefore Couleur is property of Rastalia and Rastalia acted in conformity with international
law by refusing to return Couleur.
1.1.4 There is no time schedule prescribed for return of the object.
Article V of The Treaty of Principles Governing the States in the Exploration and Use of
Outer Space, including Moon and other Celestial Bodies31 (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.
However, in the entire body of international space law, no fixed timelines are registered for
this return. The duty to return a recovered space object is in line with the general provision
embodied in the Treaty according to which ownership of objects launched into outer space
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. 32 It is perhaps for this reason that the Agreement makes
no specific reference to the contracting party, thus making it appear as if the duty to return
were a general obligation not limited in any way to the contracting party. 33The duty to return
is restricted to objects launched into outer space or their component parts which are found
beyond the territorial limits of the launching authority.34

30 Lipson And Katzenbach, REPORT TO THE NATIONAL AERONAUTICS AND SPACE

ADMINISTRATION ON THE LAW OF OUTER SPACE, A.B.A. Found. 99 (1960).

31 The Outer Space Treaty, Article V
32 Treaty, [1967] 18 U.S.T. 2410, T.I.A.S. No. 6347, art. VIII
33 Agreement, [1968] 19 U.S.T. 7570, T.I.A.S. No. 6599, art. 5, 3.
34 Agreement, [1968] 19 U.S.T. 7570, T.I.A.S. No. 6599, art. 5, 3.
7

The Agreement further restricts the scope of the duty to return by specifically
providing that the obligation arises only at the request of the launching authority.

35

The

requirement that the launching authority must request the return is understandable in view of
the further stipulation that the launching authority must bear the costs of return. 36 Still another
obligation imposed upon the launching authority is the requirement that it must provide
identifying data prior to the return whenever such is requested.

37

It must be noted that no

such data has been provided till date.

Further, the state in whose jurisdiction the object is found is also given a choice to
return it to the launching state or to the representatives of the launching state. The state is
further given the leeway to assess the situation to dictate the manner and the time of return to
effect the most feasible and cost efficient manner of return.
In the instant case merely the security processes regarding a nuclear quarantine have
yet been carried out. There is no rationale in international space law that requires the state
who found the object to omit the proper procedures it requires to follow to safely return the
object.
Therefore, in any appreciable delay in returning the object, Rastalia is not in breach of
any aspect of International Law.
1.2 Rastalia acted in conformity with international law by refusing to return
Commander Borsch.
It is established under Universal Declaration of Human Rights38 the right of an
individual to enjoy in other countries asylum from prosecution. However in the current case,
Banche and Rastalia are Member States of the United Nations which eventually proves that
they come under Universal Declaration of Human Rights. According to statement of facts,
Commander Borsch asked for political asylum in Rastalia which demonstrates that Rastalia
35 Agreement, [1968] 19 U.S.T. 7570, T.I.A.S. No. 6599, art. 5, 3.
36 Agreement, [1968] 19 U.S.T. 7570, T.I.A.S. No. 6599, art. 5, 5.
37 Agreement, [1968] 19 U.S.T. 7570, T.I.A.S. No. 6599, art. 5, 3.
38 Article 14(1) inter alia the right of each individual to enjoy in other countries asylum

from persecution. Universal Declaration of Human Rights, art. 14(1), G.A. Res. 217A (III),
U.N. GAOR, 3d Sess., at 71, U.N. Doc. A/810 (1948).
8

acted in conformity with international law by refusing to return Commander Borsch to

Banche.
According to an article in Universal Declaration of Human Rights 39 it is the right of
an individual to leave any country including his own. In the present case, as stated in
statements of facts, it thus becomes the right of Commander Borsch to leave any country
including his

own i.e. Banche which eventually proves that Rastalia has not violated

international law by

refusing to return Commander Borsch to Banche. Further, it is

established under the Declaration on Territorial Asylum 40 adopted by the United Nations
General Assembly that asylum granted by States in the exercise of its sovereignty to the
persons entitled to invoke Universal Declaration of Human Rights, Article 14 41 shall be
respected by all other states.
Writings of eminent scholars on the State of Right of Asylum in International Law 42
clarify that States have the right to grant asylum and a duty not to prevent those who wish to
emigrate or seek asylum elsewhere from doing so. 43However in the current case, statement of
facts states that Commander Borsch asked for political asylum from Rastalia and in return it
thus becomes the duty of Rastalia to grant asylum to Commander Borsch and hence they
acted in conformity with international law by refusing to return Commander Borsch to
Banche.
The right of asylum is the right of an individual to seek asylum. The basis for this
right is the principle that "a State may not claim to 'own' its nationals or residents." 44
39 Article 13(2) Everyone has the right to leave any country including his own. Universal

Declaration of Human Rights, supra note 10, art. 13(2).

40 Territorial Asylum adopted by the General Assembly of the United Nations in 1967

provides in Article 1(1) that, "asylum granted by a State, in the exercise of its sovereignty, to
persons entitled to invoke Article 14 of the Universal Declaration of Human Rights
41 Article 14:- everyone has the right to seek and to enjoy in other countries asylum from

persecution
42 Roman Boed, The State of Right of Asylum in International Law, Duke Journal of

Comparative and International Law, Vol 5, 1994.

43Id
44 Id
9

However in the present case, according to statement of facts, Commander Borsch asked for
political asylum from Rastalia which is therefore well within his right to seek. Thus by
granting asylum Rastalia acted in conformity with international law.
1.2.1 The conduct of Commander Borsch while landing does not warrant his return.
The ICJ has generally taken a flexible approach to the admissibility of evidence.

45

This can be evidenced from the use of circumstantial evidence in the Corfu Channel case
wherein this court has allowed parties to take more liberal recourse to inferences of
fact and circumstantial evidence. 46
The pre-condition for allowing such liberal recourse to the fact is that [1] the direct
evidence is under the exclusive control of the opposite party and [2] the circumstantial
evidence does not contradict direct evidence and accepted facts. 47 The ICJ has placed reliance
on evidence that has not been challenged by impartial persons for correctness of facts.48
In the cases of dubious conduct, cognizant authorities of the state on whose territory
an emergency landing is made were to believe that the astronaut is engaging in aggressive
military activities, or espionage, they would not be obliged to return the astronaut. 49 In the
present case, according to the statement of facts, Commander Borsch formerly worked in the
Ministry of National Defence of Banche (2016-2021) serving as a chief program director and
engineer in charge of Banches Anti- Satellite Weapons (ASAT) project. In the instant case all
Michael P. Sharf & Margaux Day, RECONCILABLE DIFFERENCE: A CRITICAL
ASSESSMENT OF THE INTERNATIONAL COURT OF JUSTICE S TREATMENT
OF
CIRCUMSTANTIAL
EVIDENCE,
2
(2010),
http://works.bepress.com/michael_scharf/2.
45

46 Corfu Channel (U.K. v. Alb.) (Merits), 1949 I.C.J. 4, 18 (Apr. 9) [hereinafter Corfu

Channel].
47 Id.
48 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda) (Merits),

2005 I.C.J. 156 4-15 (Dec. 19) [hereinafter DRC v. Uganda], 156; Case Concerning
Application of the Convention on Prevention and Punishment of Crime of Genocide (Bosn.
& Herz. v. Serb. & Montenegro), 2007 I.C.J., (Feb. 26).
49 Stephen Gorove, International Protection of Astronauts and Space Objects , 20 DePaul L.

Rev. 597 (1971)

10

the circumstantial evidence establishes the fact that Commander Borsch was conducting
illegal military activity in terms of both weapons research and launching of unapproved
ASAT weapons technology in outer space therefore Rastalia is within its right to detain him.
Further, The Agreement on the International Protection of Astronauts and Space
Objects is silent on the types of accident which the spacecraft personnel must have
suffered, or the conditions of distress that they must have experienced, or the kinds of
emergency or unintended landing which they must have made.50 However, it would seem
that any accident, distress, or emergency landing in which outside help is reasonably needed
or requested would almost certainly be included. 51 The only type of situation which would
appear to be excluded would be an accident or distress condition arising after an intended
landing. 52
Under Article 2, the landing must, in fact, be prompted by an accident or distress or
constitute an emergency or unintended landing. The provision does not specify just how
much or to what extent the landing must be due to such conditions, but there can be little
doubt that such events must be the major cause or preponderant reason for the landing.
In the instant case the bar to extending asylum only exits in the case of an unintended
landing caused by an accident or emergency situation. However, all the circumstantial
evidence dictates that the landing in the territory of Rastalia was intentional.
It is true that the space incident rendered the communications device faulty, however
the aircraft was still perfectly navigable. While Commander Borsch was unable to locate the
Banche space station, there was nothing that would have prevented him from making the
landing in the territory of Banche. It must be noted that most of the damage to the satellite
occurred on landing and before the same the only thing faulty was the communication and
transmission capability. Why then land many several miles away in the territory of another
state whilst making an emergency landing simply because the space station could not be
precisely located?

50 Id.
51 Id.
52 Id.
11

The conduct of the Commander thereafter, to promptly surrender to Rastalia and take
up employment with them also has indicators of intent. The collection of facts clearly
therefore point out that while there was a space accident, it did not dictate the place of
landing, the astronaut did, and he voluntarily landed beyond the territory of the launching
state specifically to surrender to Rastalia, possibly pre-empting consequences from the
botched up usage of the weapons device.
Therefore, since it was an intending landing, Asylum can be granted to Commander
Borsch and has been done so validly.
1.3 Rastalia acted in conformity with international law by refusing the earlier return of
Ms. Paula to Banche
Articles written on space tourism and international law of outer space, by eminent
scholars such as Steven Freeland53 state that, in 2002 participating space agencies in ISS
(International space station) had agreed to allow professional astronauts/cosmonauts and
spaceflight participant who include commercial scientific and other programmes, crew
members of non-partner space agencies, engineers, scientist, teachers, journalist, filmmakers
or tourists.54 . The phrase envoy of mankind has enjoyed an occasional legal vogue when
discussing astronauts, but it is probably nothing more than a nice phrase which cannot be held
to have any particular legal meaning.
The main confusion over astronaut is who it applies to. The Rescue Agreement
does not define astronaut, it merely refers to it. Bin Cheng suggests that it is descriptive
rather than technical, and refers to any person who ventures into outer space or who travels
on board a spacecraft55. The Rescue Agreement refers to both astronaut and personnel of
53 Associate professor of international law, university of western Sydney, Australia; visiting

professor, university of Copenhagen, Denmark; member of the directorate of studies of the

Paris-based international institutes of space law.
54 The united states congress and Senate have passed the commercial space launch

amendment act 2004,pub L no 108-492 (2005), which provides for amendments to

commercial launch act of 1948,49 USC 70101 (2004), in order to permit human space flight
by private corporations. The legislation distinguishes between the crew of a space vehicle,
who in the course of his/her employment performs activities directly relating to the
launch, re-entry, or other operation of or in a launch vehicle that carries human beings and a
space flight participant.
55 Cheng, Ibid, p. 457.
12

a spacecraft56 but does not explicitly say that they have the same meaning, though the
silence on the subject strongly implies that they do. The usage in other space treaties does not
make the question easier. The Outer Space Treaty uses astronaut in Article V and
personnel in Article VIII without attempting to make a distinction 57. Article VIII begins, A
State Party to the Treaty on whose registry an object launched into outer space is carried shall
retain jurisdiction and control over such object, and over any personnel thereof, while in outer
space or on a celestial body 58 As Cheng points out, On the face of it, Article VIII makes
no provision for persons who do not form part of the personnel (equipage, in the French text
of the Rescue Agreement) of a space object, for instance, passengers or visitors from another
spacecraft59. Generally, though, personnel of a spacecraft has thereafter been limited to the
crew of the spacecraft that operate the spacecraft and are generally astronauts.
In present case, the above statement indicates that Ms. Paula was a space participant
and not a personnel of spacecraft. Ms Paula has been loosely described as a scientist who
won an award in science and technology. It is further also made clear to us that her trip is
funded by the government. But at no point does the factsheet show that Ms. Paulas presence
was needed to steer the craft or that she assisted Commander Borsch who seemed to be
manning the craft, the robotic arm, the laser and the landing by himself.
Ms. Paula is also not a space passenger in the nature of Scott Kelly, a NASA astronaut
who participated in a space flight as a non-operative member of the shuttle but as a subject of
an experiment to study the impacts of gravity in space on the human body.60 Scott Kelly was
a part of a one year mission on behalf of NASA, 61and while he was an astronaut, he did not

56 The phrase Personnel of a spacecraft appears in Articles 1, 2, 3, and 4 of the Rescue

Agreement
57 Outer Space Treaty, Articles V and VIII
58 Outer Space Treaty, Article VIII.
59 Cheng, Studies, p. 459.
60 http://www.cnbc.com/2016/03/02/nasas-scott-kelly-grew-2-inches-the-body-after-a-year-

in-space.html
61 https://www.nasa.gov/1ym/
13

steer the craft; however, he was still considered a personnel of the craft since his presence on
the craft was quintessential to the space mission. 62
In the instant case, the purpose of Ms. Paula on this semi commercial space flight is
unknown and therefore she cannot be considered a personnel of the spacecraft. Thus, Rastalia
acted in conformity with International law by refusing the earlier return of Ms. Paula to
Banche.

2. Rastalia is not liable under international law for the damage to Couleur
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 63. Banche violated
international space law by sanctioning the space flight of Couleur and is also liable for the
damages caused by said flight.
2.1 Banche is liable for the damage caused by Couleur 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.64 Banche procured
the launch through the activities of its nationals. Procure means to actively and
substantially participate in a launch.65
Procurement by a State occurs when it or its nationals are actively involved in acquiring,
securing or bringing about the launch.66 The State that brings complicity to the launch

62 Id.
63 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.
64 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].
14

meets the threshold of procuring the launch. 67 Manufacturing has been acknowledged as
falling within the term procuring.68 The Couleur space craft was developed and
manufactured on Banche soil69 and with the authorisation and support of the government of
Banche.70 Even though the company that manufactured the space craft is not originally from
Banche, it has its sister entity incorporated on Banche soil and it is with the approval of the
government and collaboration that this craft has been thus assembled and tested on Banche
soil.71 Couleur was licenced by Banche for its space mission to be launched at Bance space
station.72
Further, by registering the Couleur73, Banche has accepted its liability for any damage
caused by it. Under the Registration Convention, a space object may be registered on the
registry of one State at any given time. 74 Additionally, Article VIII of the OST grants a
State party on whose registry an object is launched into outer space jurisdiction and control
65 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).
66 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).
67 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).
68 III MANUAL ON SPACE LAW.
69 Compromis para 12.
70 Id.
71 Id.
72 Compromis Para 14
73 Clarification 11.
15

over it.75 Article II of the Registration Convention establishes that the launching state
shall register the space object.76 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. 77
In the instant case, by duly registering the satellites in strict adherence with the registration
convention,78 Banche 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.79 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. 80 The use of preparatory works and
State Practice is recognized as customary rule of international law,81 and is recommended by
eminent jurists,82and by the ICJ.83 An examination of the travaux shows that the intent of the

74 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].
75 OST, art. VIII.
76 Registration Convention, art. II
77 Vienna Convention on Law of Treaties, entered into force May 23, 1969, art.

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

78 Clarification 11.
79 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).
80 OST, art. IX.
81 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).
82 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).
83 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).
16

parties to the OST was to allow private space activities only under the compromise that
national governments would assume responsibility for non-governmental activity.84
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. 85 There was a somewhat
similar assumption by nations in the US-ESRO agreement concerning activities aboard the
Spacelab.86
Additionally, State practice demonstrates that States authorise space activities
involving their nationals wherever they are carried out. 87 Licensing is one of the primary
methods by which States carry out their duty to authorise and supervise private space
activities under Article VI,88 and is thus subsequent practice which establishes the consensus
84 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).
85 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.
86 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).
87 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.).
88 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).
17

regarding interpretation.89 Thus, the State of Banche will be liable as the robotic arm and
GODA the laser technology are bot installed by the Banche Government, 90 run by Banche
officials and scientists, in partnership with the Banche government 91 and under their control
in terms of sanction and regulation.92
Further, the appropriate State is required to authorize and continually supervise the
launch activities of non-governmental entities.93 The Appropriate State is the State where
the private company carrying on space activities has its principal place of business, the State
under whose laws the company is incorporated or the State where the production of
instruments takes place.94 As the State with effective control and the strongest jurisdictional
tie to the launch,95 Banche is the appropriate state and is liable for the damaged caused by
Couleur.
According to Article 1(c) of the Convention on International Liability for Damage
Caused by Space Objects Exoneration from absolute liability shall be granted to the extent
that a launching State96 establishes that the damage has resulted either wholly or partially
from gross negligence or from an act or omission done with intent to cause damage on the
89 VCLT, art. 31(3).
90 Comprimis Para 15
91 Compromis Para 15, 16
92 Id.
93 OST, art. VI
94 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).
95 Compromis Para 5, 6, 7.
96 Convention on International Liability for Damage Caused by Space Objects, article I(c).

Exoneration from absolute liability shall be granted to the extent that a launching State
establishes that the damage has resulted either wholly or partially from gross negligence or
from an act or omission done with intent to cause damage on the part of a claimant State or of
natural or juridical persons it represents.
18

part of a claimant State or of natural or juridical persons it represents 97. However, in the
present case, the statement of facts proves that the damage caused to Couleur is due to its
own fault, as it used the GODA laser beam which resulted in breaking of Lavotto-I. It thus
proves that Rastalia can be exonerated from absolute liability.
States Parties to the Treaty undertake not to place in orbit around the earth any objects
carrying nuclear weapons or any other kinds of weapons of mass destruction, install such
weapons on celestial bodies, or station such weapons in outer space in any other manner 98
(installation of GODA laser beam by Banche in its spacecraft which is a kind of chemical
weapon and hence a weapon of mass destruction)
In the event of damage being caused elsewhere than on the surface of the earth to a
space object99 of one launching State or to persons or property on board such a space object
by a space object of another launching State, the latter shall be liable only if the damage is
due to its fault or the fault of persons for whom it is responsible 100. Rastalia shall be
considered liable only if the damaged caused to Couleur is due to the fault of its space object
or fault of persons for whom it is responsible.
The root of the damage caused and the accident remains the usage of the laser beam
GODA on board Couleur and thereafter the landing of the craft itself, therefore only Banche
will be absolutely liable for all damages.

97 The 1972, Convention on International Liability for Damage Caused by Space Objects,

article VI (1).
98 Treaty on Principles Governing the Activities of States in the Exploration and Use of

Outer Space, including the Moon and Other Celestial Bodies, article IV.
99 Convention on International Liability for Damage Caused by Space Objects, article I (d).
100 Convention on International Liability for Damage Caused by Space Objects, article III.
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3. Banche is 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.
Outer space is free for use and exploration to all States. 101 A State is responsible for
internationally wrongful acts that are attributable to it.102
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.103 It provides for absolute liability for damage caused on the surface of the
Earth.104 While the term caused is not defined in the Liability Convention, the drafters of
the Convention recommended that it should be interpreted flexibly. 105 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.106
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
101 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. 6, 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).
102 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).
103 Liability Convention, art. VIII (1)
104 Liability Convention, art. II.
105 CARL Q. CHRISTOL, THE MODERN INTERNATIONAL LAW OF OUTER SPACE

96 (1982).
106 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].
20

damage was a result of physical contact.107 This implies that a physical impact is not
necessary for a claim under the Liability Convention. Such an interpretation is
supported by the victim-oriented purpose of the Convention. 108 The drafters contemplated
adequate causality, as opposed to direct causality, as sufficient to justify compensation for
damages.109
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. The term "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 110.
Emergency landing of Couleur, in Rastalias territory caused the death of two people, Mr.
Thomas and Mr. Barton. Therefore it can be considered as damage as it led to the loss of life.
A launching State shall be absolutely liable to pay compensation for damage caused
by its space object on the surface of the earth or to aircraft flight 111. 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 object112. Banche is liable to pay compensation to Rastalia as
the damaged caused to Rastalia on the surface of earth was by Banches spacecraft.
Expenses incurred in fulfilling obligations to recover and return a space object or its
component parts under paragraphs 2 (each Contracting Party having jurisdiction over the
territory on which a space object or its component parts has been discovered shall, upon the
107 U.N. GAOR, 9th Sess., at 52, UN Doc. A/AC.105/C.2/SR.94 (July. 3rd, 1968)

(French, Canadian & Italian delegate).

108 CHRISTOL at 211; Bin Cheng, STUDIES IN INTERNATIONAL SPACE LAW 314

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

in MANUAL ON SPACE LAW 83 (1979).

110 Convention on International Liability for Damage Caused by Space Objects, article I(a).
111 Convention on International Liability for Damage Caused by Space Objects, article II.
112 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.
21

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) and 3 (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) of this Article shall be borne by the launching
authority113. Banche can therefore be considered liable to pay for cost of recovery of Couleur.
If the State of nationality has not presented a claim, another State may, in respect of
damage sustained in its territory by any natural or juridical person, present a claim to a
launching State114.Rastalia can therefore claim compensation on behalf of Commander
Borsch, who is a Banche citizen, seeking political asylum in Rastalia.
Presentation of a claim to a launching State for compensation for damage under this
Convention shall not require the prior exhaustion of any local remedies which may be
available to a claimant State or to natural or juridical persons it represents 115.Commander
Borsch is demanding compensation for the damages he suffered from Banche through
Rastalia and not directly by going to the local courts of Banche which is acceptable within the
meaning of recourse within the Convention for International Liability for Damage caused by
Space Objects. Therefore the claim for compensation has validly been raised by Rastalia.

113 The Return and Rescue Agreement, article V (5).

114 Convention on International Liability for Damage Caused by Space Objects, article VIII.
115 Convention on International Liability for Damage Caused by Space Objects, article XI.
22

PRAYER FOR RELIEF

Rastalia respectfully requests this Honourable Court to adjudge and declare that:
(a) Rastalia acted in conformity with 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 not liable under international law for the damage to Couleur.
(c) Banche is 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.
Respectfully Submitted,
(Agents of Rastalia)

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