After the Fall: An Analysis of Canadian Legal Claims
for Damage Caused by Cosmos 954
Bryan Schwartz* and Mark L. Berlin**
Synopsis
Introduction
. Claim for Trespass by Mere Fact of Entry
II. Claims for Violation of Sovereignty by Satellite Crashes at
General International Law
A. Existing Damage to Persons and Property and Mitigation
Thereof
B. Psychological Harm as Material Damage
C. Prevention of Future Damage
D. Interference with the Sovereign Rights of Canada to Determine
the Acts that will be Performed on its Territory
E. A Note on the Application of the Emergency Right of Entry
Principle
III. Whether the Liability Convention is Exhaustive of the Legal
Rights between Canada and the Soviet Union
IV. Possible Claims by Canada under the Liability Convention
A. Trespass per se
B. Existing Damage to Persons and Property and Mitigation
Thereof
C. “Psychological Harm” as Material Damage
D. Prevention of Future Damage
E. Interference with the Sovereign Right of Canada to Determine
the Acts that will be Performed on its Territory
*Of the Faculty of Law, University of Manitoba.
**Of the Secretary of State, Ottawa, and of the Department of Law, Carleton Uni-
versity.
N.B. The authors dedicate this article to our friend Dr Gerald Fitzgerald. We had the
privilege of working with him while articling at the Federal Department of Justice. No one
beginning a life in public law and public service could have known a better exemplar of
skill, integrity and generosity. The opinions expressed in this article are those of the
authors and do not necessarily reflect those of any government agency.
1982]
Introduction
COSMOS 954
The Cosmos 954 incident was the first instance in the history of
space exploration where a claim was made by one sovereign state against
another on account of damage caused by a falling space object. The
Soviet Union’s partial satisfaction of the claim to the extent of three
the
this case an
million dollars makes
development of international space law.
important precedent
in
Cosmos 954, a Soviet nuclear-powered satellite, was launched on 18
September 1977.1 Within weeks it showed signs of abnormal behaviour
and on 23 January 1978, at 6:53 Eastern Standard Time, before the
startled eyes of a few Northwest Territory residents, it re-entered the
earth’s atmosphere to the north of the Queen Charlotte Islands and
large portions of
disintegrated. Radioactive debris scattered over
Canadian territory, particularly along a strip of land starting near Great
Slave Lake and continuing north-eastward toward Baker Lake.
re-entry was confirmed by
Concern about the possibility of contamination of the environment
led to a large-scale airborne and ground search and recovery programme
named Operation Morning Light, organized by the Canadian Armed
Forces and the Atomic Energy Control Board of Canada. It ran from the
re-entry date to mid-October 1978, interrupted only by spring thaw.
tracking
Fourteen minutes after
instruments of N.O.RIA.D., President Carter of the United States
telephoned Prime Minister Trudeau to repeat an offer of immediate
technical assistance for the clean-up and recovery operations. American
expertise and equipment were utilized at an estimated cost of three
million dollars, of which two million dollars were for incremental costs.
Compensation for such a considerable amount was never a precondition
for American assistance, nor did any legal obligation ever arise; in the
end, Canada chose to exclude American costs in calculating the amount
of compensation claimed from the Soviets.
the
While the Canadian government asked for statistical and technical
data from Soviet scientists, it turned down an initial offer by the Soviets
to otherwise assist in the clean-up operation. The Soviet Union may have
been concerned that the search and recovery programme was partly
motivated by the desire to gather intelligence about the construction of
the Cosmos satellite and not for safety reasons. We have uncovered no
information in the course of our research which would lead us to believe
that a substantial amount of the costs claimed by Canada were incurred
for intelligence reasons. Certainly, if there had been such claims they
would have been inadmissible.
‘Report to the Secretary General, U.N. DOC. A/AC.105/Inf. 368, 20 November
1977.
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In all the total costs of the operation amounted to nearly fourteen
million dollars, of which only $6,041,174.70 was claimed. Canada
claimed only the incremental costs –
those over and above what it would
have had to pay for personnel and equipment used in the operation in any
event. The Canadian claim was also modest in that while the government
would have been justified in including interest on the principal amount of
its damage claim, it did not do so.
On 23 March 1979 Canada made its formal legal claim against the
Soviet Union. Negotiations towards a settlement did not begin for almost
a year. Finally, after three sessions in February, June and November
1980, a three million dollar settlement which did not expressly
acknowledge legal liability was concluded in Moscow on 2 April 1981. It
took the form of a formal protocol signed by Canadian Ambassador
Geoffrey Pearson and the Soviet Deputy Minister of Foreign Affairs,
M.S. Rysov.
This paper analyzes the legal claims arising out of the Cosmos 954
incident. It must be borne in mind throughout that the case was negotiated
and never reached the litigation stage. The paper is divided into four
parts. Part I explores Canada’s case under general international law for
damages for trespass per se. Analogies to several of the more famous
precedents – Trail Smelter, Lake Lanoux, the Nuclear Tests cases and
I’m Alone –
are reviewed and distinguished. Part II continues to
investigate other possible claims that might have arisen were general
internal law applicable, focusing in particular upon the various concepts
of “damages”. Part III suggests the possible Soviet argument that the
Liability Convention2 is exhaustive of the legal rights available to
Canada, thus precluding reliance on general international law. Finally,
Part IV reviews Canada’s claims pursuant to the Liability Convention.
I. Claim for Trespass by Mere Fact of Entry
In this first part, Canada’s case under general principles of inter-
national law for damages for trespass per se is analyzed and found to be
extremely weak. It will be contended that even if a plausible case had
existed under general international law, it would have been incompatible
with the substantive terms of the Liability Convention, and therefore
precluded to Canada.
Paragraph 21 of Canada’s Statement of Claim3 alleged, inter alia,
that the mere fact of the trespass of the satellite was a violation of
2Convention on International Liability for Damage Caused by Space Objects, 29
March 1972, 24 U.S.T. 2389, T.I.A.S. No. 7762, (1972) 66 Am. J. Int’l L. 702.
3Canada’s Statement of Claim, Claim against the Union of Soviet Socialist Republics
for Damage Caused by Soviet Cosmos 954, dated 23 January 1979, was annexed to a
note from Mark MacGuigan, Secretary of State for External Affairs to Soviet Ambas-
sador Alexander N. Yakovlev, 18 IL.M. 899 (1979).
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COSMOS 954
Canadian sovereignty, contrary to customary international law. Through-
out the negotiations it was assumed that both the failure of the satellite to
disintegrate in the upper atmosphere and Canada’s becoming “the resting
place” for the radioactive debris, were basically accidental, rather than
the realization of Soviet intentions.
There are no decisional precedents on the question of falling satellites
landing on territories other than those of the launching state. In an article
in The Globe and Mail on 9 July 1979, it was mentioned that prior to
Skylab there “have been at least 45 cases in which missile fragments,
rocket casings and satellite chunks fired into orbit by one nation have
been recovered on the territory of another”. 4 The article went on to say
that while there have been some near misses, the only casualty thus far
had been one Cuban cow. “Fidel Castro branded the accident as further
evidence of Yankee aggression announcing that the fragments had
splattered over a wide area and killed a cow. Five days later, 300
students of Havana University –
accompanied by cows and bulls –
demonstrated in front of the U.S. embassy, demanding compensation for
the accident and chanting ‘with cows or without cows the revolution will
win’.” The article did not say an official diplomatic protest or claim for
reparations was made in that case.
The return to earth of the American space station Skylab attracted
world attention. The media made much of the suspense created by the
inability of N.A.S.A. officials to predict with much precision where it
would eventually fall. Finally, on 11 July 1979, Skylab entered the
earth’s atmosphere and disintegrated over the Indian Ocean, showering
tons of debris across the Great Australian Desert. Neil Hosenball,
N.A.S.A.’s General Counsel and American representative to the United
Nations Committee on Peaceful Use of Outer Space, announced that
“[t]here is no question that the United States will pay damages. All a
claimant will have to do is establish that the damage was in fact caused by
Skylab.”‘ 5 No harm to persons or property was ever reported and un-
like Cosmos 954, Skylab carried no nuclear reactor. No claim was ever
submitted by Australia, although Australian Prime Minister Malcolm
Fraser did write to President Carter that “receiving Skylab is an honor
we would have happily forgone”. 6
The Soviet study International Space Law7 also mentions the Cuban
cows incident, but does not allude to any international legal claims as
having arisen therefrom. A list of 44 space incidents appears in the
4Globe and Mail (9 July 1979), p. 11, col. 2.
5New York Times (8 July 1979), p. E 18, col. 3.
6New York Times (13 July 1979), p. A 7, col. 5.
7A. Piradov, International Space Law (1976), 62.
Mc GILL LAW JOURNAL
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United States Senate Staff Report Convention on International Liability
for Damage Caused by Space Objects [:] Analysis and Background
Data’ and no mention is made anywhere of precedents which involve the
pollution of the environment of one state as a result of the activities of
another state.9
The Trail Smelter 10 case is the only decisional precedent of an
international tribunal on transnational pollution. The arbitral tribunal was
empowered to determine the damages caused in Washington State by the
Trail Smelter in British Columbia, and to establish a regime to control
future emissions. Their decision was to be based on art. VI of the Trail
Smelter Convention, which held that “[t]he Tribunal shall apply the law
and practice followed in dealing with cognate questions in the United
States of America, as well as International Law and Practice, and shall
give consideration to the desire of the High Contracting Parties to reach a
solution just to all parties concerned.”” The tribunal was unable to find
any decisions of international tribunals on all fours with the case before
it. It did cite a decision by the Swiss Federal Court, which apparently
relied partly on international law in resolving disputes between cantons. 12
The Trail Smelter tribunal primarily relied on cases in the United
States Supreme Court between states of the American union, which
precedents the tribunal believed might “legitimately be taken as a guide in
sUnited States: Senate Committee on Aeronautical and Space Sciences, Staff Report
[:1 Convention on International Liability for Damage caused by Space Objects [:]
Analysis and Background Data, 92d Cong., 2d Sess., (Comm. Print. May 1972), 74
[hereinafter U.S. Senate Committee Report].
9See, generally, Goldie, Liability for Damage and the Progressive Development of
law
International Law (1965) 14 Int’l & Comp. L.Q. 1189. The environmental
precedents are surveyed at pp. 1226-88.
10Trail Smelter Arbitration (U.S. v. Canada), 3 R. Int’l Arb. Awards 1905 (1938,
1945).
1
Trail, B.C., 15 April 1935, U.S. – Canada, U.S.T. No. 893, Can. T.S. No. 20.
“Convention for Settlement of Difficulties arising from Operation of Smelter at
2Supra, note 10, 1963. See Schindler, The Administration of Justice in the Swiss
Federal Court in Intercantonal Disputes (1921) 15 Am. J. Int’l L. 149, 172-4. The Swiss
Federal Court enjoined the canton of Aargau from allowing shooting practice to take
place on a range in its territory until adequate steps had been taken to eliminate the danger
of stray bullets causing damage to the persons and property in Solothurn. After
precautionary measures had been taken, the Court lifted its injunction, holding that the
demand of the Government of Solothurn that all endangerment be absolutely abolished
apparently goes too far. One reason for holding that absolute safety was not required was
that cantons had a federal constitutional duty to provide places for shooting practice.
Moreover, the decision apparently did not determine whether Aargau might be liable for
any damage caused, even if its conduct was not enjoinable. Accordingly, this precedent
was too parochial and limited to have been of much relevance for the purposes of the
Cosmos negotiations. See Judgments of the Swiss Federal Tribunal (1900), vol. XXVI,
part I, 449-51.
19821
COSMOS 954
this field of international law”. 13 The cases involved requests for
injunctions in respect of acts or omissions of the defendant state which
resulted in air or water pollution damage to the plaintiff state. The
tribunal cited, for example, Georgia v. Tennessee Copper Co. and
Ducktown Sulphur, Copper and Iron Co. 14 In that case the Court held:
Without excluding the considerations that equity always takes into account…. [i]t is
a fair and reasonable demand on the part of a sovereign that the air over its territory
should not be polluted on a great scale by sulphurous acid gas, that the forests on its
mountains, be they better or worse, and whatever domestic destruction they may have
suffered, should not be further destroyed or threatened by the acts of persons beyond
its control, that the crops and orchards on its hills should not be endangered from the
same source….
Whether Georgia by insisting upon this claim is doing more harm than good to her
own citizens is for her to determine. The possible disaster to those outside the State
must be accepted as a consequence of her standing upon her extreme rights.”
This case is important because it indicates that where one sovereign
state allows activities on its territories to cause damage to another, the
plea that the activity is “reasonable” will carry less weight than it might
in a domestic court. The theory that A is legally permitted to cause harm
to B when A’s activities are, all things (including B’s harm) considered, in
the “public interest”, may be workable if A and B are members of the
same community, one in which there is an agreed upon standard of public
good. But in the international arena, where the content of “public
interest” will be endlessly disputable, and A and B are sovereign states
which cannot be expected to sacrifice without compensation their persons
test which
or territories for the “general good”, a “reasonableness”
would involve the balancing of interests would be objectionable.
While the Ducktown case is germane to the discussion following in
Part II, it does not establish the proposition under discussion, which is
that there is an international law cause of action for the unintentional and
in particular, satellite
not materially harmful
fragments, on the territory of the plaintiff state. In Ducktown, the
Supreme Court granted an injunction at the State of Georgia’s request
against a Tennessee company which was only sufficient to save the
territory of Georgia from serious danger of immediate injury. 16
intrusion of debris,
An important qualification of all of the American judgments cited by
the Trail Smelter tribunal is that they deal with claims for injunctions,
and do not determine whether damages might later be awarded, even if a
13Ibid., 1964.
.4206 U.S. 230 (1907).
“5Ibid., 238-9 per Holmes J.
16237 U.S. 474, 476 (1915) per McReynolds J.
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judgment for an injunction is denied. The Trail Smelter tribunal
nonetheless concluded its review of the American cases with the general
conclusion that
under the principles of international law, as well as of the law of the United States, no
State has the right to use or permit the use of its territory in such a manner as to cause
injury by fumes in or to the persons therein, when the case is of serious consequence
and the injury is established by clear and convincing evidence. 17
The tribunal then observed:
The decisions of the Supreme Court of the United States which are the basis of these
conclusions are decisions in equity and a solution inspired by them, together with the
regime hereinafter prescribed, will, in the opinion of the Tribunal, be “just to all
parties concerned”, as long, at least, as the present conditions in the Columbia River
Valley continue to prevail.”‘
Accordingly, the tribunal found Canada liable for damage, such as injury
to cropland, caused by the Trail Smelter. It established a regime for
future use of the Smelter, whereby the risk of further harm was not
absolutely eliminated but pollution would be kept below a level sufficient
to cause harm. This does not conclusively establish that, absent material
harm, a state can freely allow pollutants from activities within its borders
to cross into the territory of another state, because the Trail Smelter
tribunal was drawing analogies from the equity cases of the Supreme
Court under its own equity jurisdiction “to reach a solution ‘just to all
parties concerned’.”‘ 9 Thus it could still be contended that, under general
international law, it is a tort, for which at least nominal damages are
available, to allow pollutants to cross international boundaries, even
when no material harm is caused.
About the only other precedent worth remarking upon before the well-
known Nuclear Tests cases is the Lake Lanoux arbitration.2 0 There the
tribunal agreed that “an upstream state” is acting unlawfully if it changes
the waters of a river in their natural condition to the serious injury of a
downstream state. On the other hand, the tribunal stated that “the rule
according to which States may utilize the hydraulic force of international
water courses only on condition of a prior agreement between the
interested States cannot be established as a custom, or even less as a
general principle of law.”‘ 21 Thus, at least in the context of rivers, some
interference with the natural state of another country is permitted by
international law, as long as no serious injury results.
note 10, 1965.
17Supra,
181bid.
19Ibid.
20Lake Lanoux (Spain v. France), 12 R Int’l Arb. Awards 281 (1957); discussed in
I. Brownlie, Principles of Public International Law, 2d ed. (1973), 265.
7’Brownlie, ibid.
19821
COSMOS 954
The Nuclear Tests cases decided by the International Court of
Justice in 1973 and 1974 involved applications by Australia and New
Zealand to have the I.C.J. declare French nuclear testing in the South
Pacific inconsistent with applicable rules of international law. The
application of New Zealand which stated, inter alia, that nuclear testing
was a violation of the rights of all members of the international
community including New Zealand, continued:
(c) it violates the right of New Zealand that no radioactive material enter the territory
of New Zealand… including [its] air space and territorial waters, as a result of nuclear
testing;
(d) it violates the right of New Zealand that no radioactive material, having entered
the territory of New Zealand… including.., its air space and territorial waters, as a
result of nuclear testing, cause harm, including apprehension, anxiety and concern, to
the people and Government of New Zealand.22
No judgment on the merits was ever rendered in the Nuclear Tests case,
the action being short-circuited by a determination of the I.C.J. that a
French assurance to New Zealand that it would conduct no further
atmospheric testing rendered the case moot.
A similar result was reached in the case involving Australia, but there
several judges did comment on what the legal issues would have been had
the case proceeded to a decision on the merits. In a dissenting judgment,
Judge de Castro reviewed the possible bases for an international legal
claim arising out of the intrusion of radioactive fall-out. The following
passage implies that harmfulness of fall-out might be an essential part of
a valid claim: 23
The right relied on by the Applicant with regard to the deposit of radioactive fall-out
on its territory was considered in the Order of 22 June 1973. We must now consider
whether reliance on this right makes the request for examination of the merits of the
case admissible. The Applicant’s complaint against France of violation of its
sovereignty by introducing harmful matter into its territory without its permission is
based on a legal interest which has been well known since the time of Roman law. The
prohibition of immissio (of water, smoke, fragments of stone) into a neighbouring
property was a feature of Roman law. The principle sic utere tuo ut aliaenum non
laedas is a feature of law both ancient and modem. It is well known that the owner of
a property is liable for intolerable smoke or smells, “because he oversteps [the
physical limits of his property], because there is immissio over the neighbouring
properties, because he causes injury.”12 4
22Application of New Zealand (New Zealand v. France), 1973 I.C.J. Pleadings, vol.
II, (Nuclear Tests) 3, 8 (Application dated 9 May 1973). Note that para. (c) does not
refer to harm caused to the people and government of New Zealand.
2″Nuclear Tests (Australia v. France), 1974 I.C.J. 372, 388 (Judgment of 20 De-
24Reference to H. & L. Mazeaud & A. Tunc, Trait th~orique etpratique de la respon-
cember 1974).
sabilit civile, 5th ed. (1957), vol. 1, paras 597, 679 et seq.
Mc GILL LAW JOURNAL
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Judge de Castro cited Trail Smelter as a possible authority for the
proposition that “there is a general rule that there is a right to demand
prohibition of the emission by neighbouring properties of noxious fumes”,
whence “the consequence must be drawn, by an obvious analogy, that the
Applicant is entitled to ask the court to uphold its claim that France
should put an end to the deposit of radioactive fall-out on its territory.”
At one point Judge de Castro did imply that the intrusion of radioactive
fall-out into the territory of another state might be sufficient to make out
an international tort:
The question whether the deposit of radioactive substances on the Applicant’s
territory as a result of the French nuclear tests is harmful to the Applicant should
only be settled in the course of proceedings on the merits in which the Court would
consider whether intrusion or trespass into the territory of another is unlawful in
itself, or only if it gives rise to damage; in the latter hypothesis, it would still have to
consider the nature of the alleged damage, its existence and its relative importance in
order to pronounce on the claim for prohibition of the French nuclear tests. 25
In his dissenting opinion, Judge Barwick, the Australian judge ad hoc on
the I.C.J., suggested that not only may it depend on the nature of the
material deposited whether its mere presence is an infringement of
sovereignty, but that the nature of the activity leading to its being
deposited might also be relevant:
In resolving the question whether damage is of the essence of the right to territorial
integrity in relation to the intrusion of physical matter into territory, there may arise
what is a large question as to the classification of substances which may be
introduced with impunity by one State on to and into the territory and environment of
another. Is there a possible limitation or qualification of the right to territorial and
environmental integrity which springs from the nature of the activity which generates
the substance which is deposited or intruded into the State’s territory and
environment? There are doubtless uses of territory by a State which are of such a
nature that the consequences for another State and its territory and environment of
such a use must be accepted by that other State. It may very well be that a line is to
be drawn between depositions and intrusions which are lawful and must be borne and
those which are unlawful; on the other hand it may be that because of the unique
nature of nuclides and the internationally unnecessary and unprofitable activity
which gives rise to their dissemination, no more need to be decided than the question
whether the intrusion of such nuclides so derived is unlawful.26
In summary, it is evident that the decisional precedents in international
law do not expressly hold that the unintended intrusion of debris is not
actionable if no material injury occurs to the plaintiff state. Rather, those
cases granting damages and injunctions have tended to stress material
injury by way of justification for the award.
Gunther Handl has explored in detail the specific issue of whether
there can be a cause of action in international law for the intrusion of
2sThe only authority cited by Judge de Castro, supra, note 23, 389-90 was the Swiss
case referred to, supra, note 12.
261bid., 433.
19821
COSMOS 954
environmental contaminants where there is no material injury.” He
concludes emphatically
that there cannot be. In support of this
conclusion, he presents examples of state practice in addition to the
ubiquitous decisional precedent of Trail Smelter and its less consequen-
tial relative, the Lake Lanoux arbitration. He points out that in the
Peyton Packing Co. and Casuco Co. case,28 where Mexico complained
about emissions from an American factory, the diplomatic note alleged
that serious harm was being caused to Ciudad Juarez. 29 Furthermore, in
an exchange of notes over flooding in the Tijuana Basin, the United
States did not complain of the discharge of waters from Mexican
construction activities onto American territory as an international wrong
per se, but urged that steps be taken to ensure that no damage be caused
thereby.”0 In the Rose Street Canal case, the United States Assistant
Secretary of State referred to material injury as part of its claim:
[Tihe principle of international law which obligates every state to respect the full
sovereignty of other states and to refrain from creating or authorizing or
countenancing the creation in its territory of any agency… which causes injury to
another state or its inhabitants is one of long standing and universal recognition.3
In these precedents, references
to actual injury may have been
suppressed for reasons of diplomacy or tact. The authors of the
statements cited may not have wished
interject a possibly
inflammatory allegation of violation of sovereignty when their only
concern was the prevention or reparation of material injuries. On the
other hand, it may not have occurred to them to allege a violation of
sovereignty. The failure to make a claim cannot be confidently inter-
preted as a concession that it does not exist. Still, these examples of state
practice provide no confirmation of the view that an unintentional
intrusion of debris which causes no material harm is actionable.
to
Handl also cites a number of conventions, treaties and declarations
which make material injury essential to a claim of international law tort.32
For example, Principle 21 of the Declaration of the United Nations
Conference on the Human Environment provides:
States have, in accordance with the Charter of the United Nations and the principles
of international law, the sovereign right to exploit their own resources pursuant to
69 Am. J. Int’l L. 50.
2’Handl, Territorial Sovereignty and the Problem of Transnational Pollution (1975)
28Ibid., 70.
29M. Whiteman, Digest of International Law (1968), vol. 6, 256, Note of 6 April
1961 (Mexico – U.S.).
30Ibid., 261.
3’Handl, supra, note 27, 71. See Whiteman, supra, note 29, 265 (Letter to the Mayor
321bid., 68.
of the City of Douglas, 12 May 1955).
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their own environmental policies, and the responsibility to ensure that activities
within their jurisdiction or control do not cause damage to the environment of other
States or areas beyond the limits of national jurisdictions.”
Another sdurce of international law which should be considered
along with conventions, judicial decisions and state practice is, in the
words of the Statute of the International Court of Justice, “the general
principles of law recognized by civilized nations”.3 4 There is uncertainty
and disagreement in the academic literature as to whether this refers to
rules which are so simple and apparently rational that no system which
claims to be judicial could be without them –
e.g., estoppel, resjudicata,
perhapspacta sunt servanda – or whether it also applies to less obvious
and more substantial principles of law such as unjust enrichment, or the
theory of the public contract, which happen to be common elements
among most, or all “civilized”
legal systems. 3
1
The principle that the harmless depositing of debris on a plaintiff
state by otherwise legitimate activities of the defendant state is not
actionable is not so manifestly rational and indisputable that it can be
said to be a “principle” in the first mentioned sense. But this principle
seems to qualify in the second sense, which is to say that it is found in
many important legal systems.
Jerome Elkind, in a comparative study of nuisance law,3 6 finds that
under Roman law a certain amount of smoke and water from activities on
a neighbouring property must be tolerated by a landowner, but that a
cause of action would lie for substantial wrongs. He claims that there was
also a cause of action of a different nature if the intrusion was willful or
negligent. Under German law, “the owner of a piece of land may not
forbid the discharge of gases, vapours, odours, smoke, soot, heat, noise,
vibrations and similar interferences proceeding from another piece of
33Declaration of the United Nations Conference on the Human Environment,
Stockholm, 16 June 1972, 11 I.L.M. 1416, 1420 (1972). He then refers to a variety of
treaties and declarations which implicitly affirm the principle of material damage in
connection with diversion and pollution of waters, e.g., Article X of the Helsinki Rules on
the Uses of Waters of International Rivers in Report of the Fifty-Second Conference of
the IL.A. (1966), 447; Boundary Waters and Questions Arising along the Boundary
between the U.S.A. and Canada, 11 January 1909, Great Britain – United States,
12 U.S.T. 319, T.I.A.S. No. 548. See also International Boundary Waters Treaty Act,
R.S.C. 1970, c. 1-20, Schedule I, of which art. IV, second paragraph, provides that
“waters herein defined as boundary waters and waters flowing across the boundary shall
not be polluted on either side to the injury of health or property on the other”.
4Article 38 (1) (c).
3″ See D. O’Connell, International Law, 2d ed. (1970), 9-14; Friedmann, The Uses of
“General Principles” in the Development of International Law (1964) 57 Am. J. Int’l L.
279.
“6Elkind, Footnote to the Nuclear Test Cases: Abuse of Rights – A Blind Alley for
1
Environmentalists (1974) 9 Vand. J. Trans. L. 75.
19821
COSMOS 954
land, insofar as the interference does not materially injure the use of the
land.”‘ 37 Finally, under French law, Elkind finds that there is no liability
unless the disturbance “goes beyond the bounds of ordinary relations
among neighbours”. 38
As a matter of fact, even under English common law as interpreted
by Fleming in The Law of Torts, a nuisance must be “substantial and
unreasonable” before it is actionable.39 Moreover, even if the intrusion is
“direct” or in the form of large, easily sensible objects, so that one can
call it a “trespass”, Fleming reports that although there are no decisions
expressly on point, the modern position can “safely be accepted” to be
that there is no liability unless the intrusion is intended, or results in
actual harm.40
That domestic legal systems do not allow even nominal damages for
unintended and harmless intrusions does not necessarily mean that inter-
national law does not either. There might be special features of the
international community which make the domestic law of nuisance
inapplicable. It has already been suggested, in connection with the
Ducktown case,41 that there is less room for the “balancing of interests”
and tolerance and nuisance in the name of general social utility in
international law than there might be in a municipal legal system. Still,
some estimable reasons can be offered in support of a rule which holds
that unintentional, harmless intrusions do not warrant even nominal
damages.
The lack of intention by the defendant state that there be an intrusion
makes it less reasonable that it be understood by the plaintiff state or the
international community generally as an affront to the dignity or
sovereignty of the plaintiff state. It can be understood instead as the
accidental by-product of a legitimate activity which, absent material
damage, should have no international repercussions.
Another consideration is that the materially harmless intrusion of
debris cannot be construed as an attempt by the defendant state to
exercise control or change the internal state of affairs in the territory of
the plaintiff state, in the way that the arrest or destruction of persons or
property in the plaintiff state by agents of the defendant state can be. In
the latter case, nominal, or even punitive damages, or at least a declara-
tion of illegality, might be appropriate as satisfaction for the challenge to
the plaintiff state’s sovereignty, even if no material harm is incurred.
“7Ibid., 81.
38Ibid., 83.
39J. Fleming, The Law of Torts, 4th ed. (1971), 342.
40Ibid., 347-8.
4 1Supra, note 14.
Mc GILL LAW JOURNAL
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These factors are sufficient to distinguish the Cosmos 954 case from
the I’m Alone 42 arbitration in which Canada won substantial damages
from the United States even though it suffered no pecuniary losses. In
that case, a ship of Canadian registry was sunk on the high seas by an
American revenue ship, because of its involvement in smuggling liquor
into the United States. The tribunal awarded Canada $25,000
in
damages, even though the ship was de facto owned and controlled and
managed by a group of persons who were “entirely, or nearly so, citizens
of the United States”. 43 According to the commissioners:
The act of sinking the ship… was an unlawful act.., and the United States ought
formally to acknowledge its illegality, and to apologize to His Majesty’s Canadian
Government therefor… and as… a material amend in respect of the wrong the United
States should pay the sum of $25,000 to His Majesty’s Canadian Government.”
The Commissioners also recommended that compensation be paid for the
benefit of the captain and members of the crew, “none of whom was a
party to the illegal conspiracy”.45 The desire to ensure that the innocent
victims were compensated may have been a decisive factor in the
tribunal’s award of monetary damages in addition to requiring the
acknowledgement of illegality and the apology.
It should be noted that the tribunal in Trail Smelter was not asked by
the United States to award it the costs of investigating the damage in
Washington State under the heading of “damages in respect of the wrong
done the United States in violation of sovereignty”. 46 In fact, it was
unnecessary to decide the question of alleged violation of sovereignty,
because the claim could be denied on the narrow grounds that such
damages were not intended to be compensatory under the terms of the
compromis. The Americans claimed repayment of expenses of investiga-
tion “on a further and separate ground”, 47 namely, that they should be
regarded as costs of litigation. But the tribunal replied that “arbitration
and final settlement of a long pending controversy between two indepen-
dent Governments… where each Government has incurred expenses, and
where it is to the mutual advantage of the two Governments that a just
conclusion and permanent disposition of an international controversy
should be reached”. 48 The tribunal further noted that the controversy
facing it “did not involve any such facts as the persons appointed under
the Convention of 23 January 1934, between the United States of
42S.S. I’m Alone (Canada v. U.S.), 3 R. Int’l Arb. Awards 1609 (1935).
43Ibid., 1618.
44Ibid.
4SIbid.
46Supra, note 10, 1932.
47Ibid., 1933.
48Ibid.
1982]
COSMOS 954
America and the Dominion of Canada felt to justify them in awarding to
Canada damages for violation of sovereignty in the I’m Alone award of
January 5, 1935.”1 9
the “reciprocity
It is submitted that there is yet another consideration in favour of a
liability rule for unintended and harmless intrusion of debris, which might
be called
that since
international, like domestic litigation is expensive, two countries engaged
in activities which create equal risks or injury to each other might as well
say that they should each bear the losses caused. In the long run, they will
benefit from the lack of liability about as much as from the lack of a right
to reparation.
argument”. 0 The
idea
is
The reciprocity argument is even applicable should substantial
damages occur, as long as the plaintiff and defendant have been
subjecting each other to equal risks. But the less the injuries tend to be,
the stronger the argument for no liability is: the greater the cost of
litigation relative to the amount of the recovery, the greater can be our
confidence that no party is bearing a seriously disproportionate share of
the losses.
It might be suggested that the debris of fallen satellites is distin-
guishable from other pollutants causing harm. For one thing, the cases
and treaties discussed are concerned with injuries caused by activities
carried on entirely within the defendant state. While the defendant state
may recognize effects on the environment of the plaintiff state as the
inevitable result of its activities, it is not the intention of the defendant
state, or persons within it carrying on the activity, that there be any extra-
territorial effect. But the intention of a satellite launch is to put an object
outside of the territorial limits of the state. This fact may allow one to
distinguish such an instance from cases of unintentional pollution, but it is
impossible to produce any satisfactory moral or political reasons why this
distinction should be the basis for imposing international liability which
would not otherwise exist. After all, it is still not the intention of a
launching state that debris should scatter on the territory of other
countries. This may be recognized by the launching states as probable or
practically inevitable, but so might the intrusion of ordinary environ-
mental pollution. In both cases of transnational environmental pollution
and satellite debris, a prima facie legitimate activity results in an
unintended intrusion onto the territory of another country. If the absence
of an affront to sovereignty and the undesirability of international
litigation are reasons for saying the intrusion of environmental pollutants
49Ibid.
50See Fletcher, Fairness and Utility in Tort Theory (1972) 85 Harv. L. Rev. 537.
REVUE DE DROIT DE McGILL
[Vol. 27
causing no material harm is not actionable, the same reasons should
apply to the case of satellite debris.
A preliminary conclusion can be drawn that there is practically no
support in policy or precedent for the theory that the unintended intrusion
of satellite debris warrants, in the absence of material damage, recovery
of even nominal damages.
Even if nominal damages would otherwise be available at general
international law for the materially harmless “trespass” of a satellite, the
Liability Convention51 might completely preclude the possibility of such
damages being awarded. In PartII, the interaction of the Convention and
general international law will be discussed in some detail; here it is
sufficient to note that a strong case can be made that the existence of the
Liability Convention precludes resort to a broader basis of liability than
is contemplated by the Convention itself. This argument is further
strengthened if the plaintiff state relies on the provisions of the treaty as a
basis for its claim, as Canada did in this case.
Article I (a) of the Liability Convention provides that for the
purposes of the Convention, “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 judicial, or property of
international intergovernmental organizations”. Article II provides that
“a launching State shall be absolutely liable to pay compensation for the
damage caused by its space object on the surface of the earth or to
aircraft in flight.”‘ 52 Article XII provides that “the compensation which
the launching State shall be liable to pay for damage under this
Convention shall be determined in accordance with international law and
the principles of justice and equity, in order to provide such reparation in
respect of the damage as will restore the person, natural or juridical, State
or international organization on whose behalf the claim is presented to the
condition which would have existed if the damage had not occurred.” All
of this would seem to support William Foster’s conclusion that “[a]s the
sole object of compensation is to effect a restitutio in integrum, there can
be no award of punitive or nominal damages, to use common law termi-
nology, for neither category of damages is designed to compensate a
person for the injury he has sustained. 5 3 Apparently, 4 the Soviet
delegate emphasized
this point during discussion of the Legal
-“Supra, note 2.
“Z[Emphasis added.]
53Foster, The Convention on International Liability for Damage Caused by Space
Objects (1972) Can. Y.B. Int’l L. 137, 172.
“4Ibid., fn. 111.
19821
COSMOS 954
Subcommittee to the United Nations Committee on the Peaceful Uses of
Outer Space, which subcommittee prepared the Liability Convention.55
II. Claims for Violation of Sovereignty by Satellite Crashes at
General International Law
In Part II, possible Canadian claims under the head of “violations of
sovereignty” are considered. It is argued that if general principles of
international law had been applicable, then Canada would have had a
strong case for recovering the costs of its clean-up operation on that basis.
To support this argument, an examination is made of the ways in which
various Canadian claims could have been presented and substantiated
under general international law.
In addition to the “mere trespass” claim, para. 21 of Canada’s
Statement of Claim alleged
that “[this violation [of Canadian
sovereignty]
is established by … the harmful consequences of this
intrusion, being the damage caused to Canada by the presence of
hazardous radioactive debris and the interference with the sovereign right
of Canada to determine the acts that will be performed on its territory.” 56
Part I of this paper indicated that there are decisional precedents in
respect of liability for ground damage by space satellites. The closest
analogies would be in more mundane pollution cases but even here Trail
Smelter stands alone. There is very little academic literature on what the
extent of liability at general international law, apart from the space
treaties, is supposed to be. Thus in Law and Public Order in Outer
Space,5 7 MacDougal, Lasswell and Vlasic could do no better than cite air
and water pollution as the closest analogies, observe how “primitive”
international law was in those areas, and conclude by citing some of the
constellation of factors they considered might be relevant in fixing
liability.
It is submitted, nonetheless, that a strong case can be made for strict
international liability for damage caused by space satellites at general
international law. For example, if Skylab fragments had caused material
damage to countries which were not parties to the space treaties, it is
submitted that the American obligation to compensate would have stem-
med from international law, and not just moral magnanimity. A special
case of a claim for damages for violation of sovereignty (the trespass per
se claim) was discussed in Part I. Assuming material damage or a
internal state of affairs, the
substantial interference with Canada’s
‘-See U.N. Doe. A/AC.105/C.2/SP. 100, 137-8 per A. Piradov.
‘ 6Supra, note 3, 907.
1 M. McDougal, H. Lasswell & I. Vlasic, Law and Public Order in Outer Space
(1963), 613-20.
McGILL LAW JOURNAL
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following types of claims would have been possible under the general
head of “violation of sovereignty”.
A. Existing Damage to Persons and Property and Mitigation Thereof
Radioactive contamination caused by Cosmos 954 amounted to a
direct and immediate devaluation of Canadian territory. Canada was
entitled to be restored to the position it was in before the damage
occurred. It took steps towards restoration in respect of some of the
damage: the whereabouts of much of the radioactive core of Cosmos is
still unknown.
is surely material damage. 9 It seems
Peter Haanappel, in discussing Canada’s claim under the Liability
Convention, said that “[it… appeared that no measurable damage had
been caused to the Canadian environment by the nuclear debris of the
Cosmos” 58 He seems to have concluded that, consequently, no claim
could be lodged under the Liability Convention, since the only damage
Canada suffered was in preventing future damage. It is submitted that
Haanappel’s comment could not imply a valid objection to Canada’s
claim at general international law or under the Liability Convention. If
Haanappel meant that there was no material damage to the environment,
he is simply mistaken on the facts. The nuclear contamination of vast
stretches of Canadian territory, some debris emitting potentially lethal
dosages of radiation,
that
Haanappel was emphasizing the difficulty of estimating the precise
quantum of damages; later in his article he writes that the definition of
“damage”
in the Liability Convention cannot by any “stretch of the
imagination” cover the costs incurred by Canada in preventing potential
damage, where actual damage never occurred or remains unmeasurable,
such as a general damage to the environment. But on this interpretation of
his remark, Haanappel also seems to have been mistaken. In international
law, as in Anglo-American domestic law, the difficulty of estimating the
quantum of damages is not an argument against awarding them. In the
Sapphire Claim, for example,
the arbitrator held that “[ilt is not
necessary to prove the exact damage suffered in order to award damages.
On the contrary, when such a proof L impossible, particularly as a result
of the behaviour of the author of the damage, it is enough for the judge to
be able to admit with sufficient probability the existence and extent of the
damage”.60
5″Haanappel, Some Observations on the Crash of Cosmos 954 (1978) 6 J. Space L.
147, 148.
and Nature of Recovered Debris (1980), 5-7, 10-22.
59W. Gummer, F. Campbell, G. Knight & J. Ricard, Cosmos 954 [:1 The Occurrence
60Sapphire International Petroleums Ltd v. National Iranian Oil Co. 35 I.L.R. 136,
187-8 (Arbitration Award, 1935).
19821
COSMOS 954
In any event, even if Haanappel’s non-measurability objection
ordinarily would have been a valid objection to the awarding of damages
for the damage to the Canadian environment, this objection dissolved
when the damages were converted into another readily calculable form by
the reasonable attempts to mitigate them. Canada was entitled under the
Choriow Factory principle6’ to be restored to the position it was in before
the damage occurred. It did so by means of the clean-up operation. Un-
less the Soviets could have shown that Canada’s effort in cleaning up the
damage was unreasonably more costly than leaving the debris where it
fell, Canada would have been entitled to recover fully the costs of the
clean-up operation as mitigation of the damage caused to its environment.
B. Psychological Harm as Material Damage
In the French Nuclear Tests cases, where Australia and New
Zealand had difficulties in proving that physical illness would result from
the deposit of radioactive debris from French nuclear tests, both nations
emphasized that, at the very least, the presence of the debris would be a
source of anxiety to the people and governments of their nations. Thus,
para. 47 of the Australian application for an interim injunction states:
There is, moreover, a significant psychological consequence of nuclear testing.
People feel a real concern that the testing of nuclear weapons in the atmosphere
places their lives, health and well-being and that of their children and future
generations in jeopardy. Even in the absence of effects which can be positively
identified with radiation doses due to radio-active fall-out generated by French
nuclear testing of nuclear weapons, populations are subjected to mental stress and
anxiety generated by fear and this is a cause of injury to them. 62
Similarly, para. 2 of the New Zealand request says that among the rights
New Zealand was seeking to protect was:
(iv) the right of New Zealand that no radioactive material having entered the territory
of New Zealand, the Cook Islands, Niue or the Tokela Islands, including their
airspace and territorial waters, as a result of nuclear testing cause harm, including
apprehension, anxiety and concern to the people and government of New Zealand,
and of the Cook Islands, Niue and the Tokelau Islands. 61
In analyzing Canada’s trespass per se claim in Part I, we referred to
Handl’s argument that material injury is a necessary element of a valid
international claim arising out of transnational pollution.64 Handl,
alluding to the Australian claim in the Nuclear Tests case, concludes:
29 (Judgment of 13 September 1928).
61Chorzow Factory (Germany v. Poland) (Merits), 1928 P.C.I.J., ser. A, No. 17, 4,
62Application of Australia (Australia v. France), 1974 I.C.J. Pleadings, vol. I
63Request of New Zealand (New Zealand v. France), 1974 I.C.J. Pleadings, vol. 2
(Nuclear Tests) 3, 14 (Application dated 9 May 1928).
(Nuclear Tests) 49 (Request dated 14 May 1973).
“Supra, note 27, 75.
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[Vol. 27
Material damage, denoting simply injuries to a state other than those bearing on its
status as a sovereign member of the international community, including the psycho-
logical impact of transnational pollution on the state’s population or part thereof,
would seem to suffice in itself as a basis for a successful direct international claim
against the polluting state.6s
In support of his inclusion of psychological impact as a type of material
injury, Handl appends this footnote:
‘ For if a state has a legitimate “interest independent of and behind its citizens in all
the earth and air within its domain” and it has “the last word as to whether its
mountains shall be stripped of their forests and its inhabitants shall breath pure air”
[see Georgia v. Tennessee Copper Co. 206 U.S. 230, 237 (1907)] –
this passage
cited also by the Trail Smelter Tribunal, [3 R. Int’l Arb. Awards 1905, 1965 (1938,
1945)] –
it is a reasonable conclusion that it has such an interest also in the
psychological well-being of its citizens. [For theparenspatriae concept, see Garton,
The State versus Extraterritorial Pollution – States’ “Environmental Rights”
under Federal Common Law (1972) 2 Ecology L.Q. 313.]66
Had the Soviets contended that no harm had been sustained by
Canadian persons or property by the crash of Cosmos, Canada could not
only have pointed to the devaluation of Canadian territory, but to the
continued and well-founded anxiety the population and government of
Canada would have experienced had clean-up operations not been
undertaken. Cosmos contained 110 pounds of enriched uranium and
uranium fission by-products such as strontium 90, caesium and cerium. 67
Some of the uranium fragments detected were found to emit potentially
lethal or seriously harmful doses of radiation. The potential risk to the
population who lived in the vicinity where Cosmos debris was scattered,
included external radiation to part or all of the body, and internal
radiation by inhalation or ingestion.68
The presence of radioactive materials was manifestly a source of
great concern to Canadians, and indeed, it is not altogether out of the
question that international law would have allowed damages under the
head of mental suffering. There are several precedents for such an award,
amongst which is the award in the Lusitania case for shock suffered by
relatives of the victims. 69 But in the Cosmos 954 incident, the events were
not as traumatic or as grave. Furthermore, the effects were felt by more
than a small number of individuals. It is arguable that because of the
difficulty of determining appropriate compensation for anxiety which is
“Ibid., 75 [emphasis added].
66Ibid., fn. 161.
67Aikman, Operation Morning Light (1978) 2 Sentinel 5, 13; see Gummer, et al.,
supra, note 59, 6-7, 46 et seq. where it is reported that 65 kilograms of debris were actual-
ly recovered.
68Gummer, et aL, ibid., 34.
69Lusitania Case (U.S. v. Germany), 7 R. Int’l Arb. Awards 32 (1923).
19821
COSMOS 954
both mild and widely shared, international law should allow only nominal
damages. In the Cosmos case the most plausible purpose of pointing to
the anxiety of Canadians would have been to demonstrate that Canada
suffered a material injury, which it should have mitigated, and did miti-
gate, by its clean-up operations. Again, by converting its damages from a
difficult-to-estimate form (general anxiety) to a readily calculable one
(incremental costs of recovery operations) Canada removed a difficulty in
making out its claim for compensation from the Soviet Union.70
C. Prevention of Future Damage
Haanappel argued that the costs of Operation Morning Light were
to prevent potential damage where no “actual” or “measurable” damage
occurred. He further asserted that the Liability Convention could “by no
to allow recovery for
stretch of the
prevention of damages, although he departs from his disparagement of
Canada’s claim sufficiently to allow the possibility that art. VII of the
1967 Outer Space Treaty “might be wide enough to cover the costs
incurred by Canada in preventing possible damage from the Cosmos
satellite”.7 1
imagination” be considered
With respect, Haanappel’s argument should be rejected on two
grounds. First, Operation Morning Light was justified under both general
international law and the Liability Convention, as it attempted to miti-
gate damages by reducing existing damage to Canadian property. There-
fore, there is no need to focus on the prevention of future damage.
Second, even if Operation Morning Light could only have been justified
as an attempt to prevent future damage to Canadian persons and property,
its costs would have still been entirely recoverable under both general
international law and under the Liability Convention. The reason for
jumping ahead for a moment to consider the Liability Convention is that
this will permit a more concise and coherent presentation of the legal
implications of the potential damage.
It has already been argued that the difficulty of measuring damage did
not preclude Canada from recovering the costs of mitigation. Canada had
no need to rely on a claim that it prevented potential damage from oc-
curring. The nuclear contamination of vast stretches of Canadian terri-
tory, rendering it dangerous for humans and animals, and therefore less
usable, was an existing, realized damage to Canadian property. We will
argue this point more fully later on, in Part IV (B).
7″Note that in the Nuclear Tests cases, the purpose of Australia and New Zealand in
stressing the concern of their governments and populations was to provide a basis for
granting interim measures to protect their rights, not to obtain monetary compensation.
7’Haanappel, supra, note 58, 148-9.
McGILL LAW JOURNAL
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To consider a case which depended purely on prevention of future
damage, suppose that Cosmos debris had fallen into the international
waters off Canada, and Canada had spent considerable resources in
preventing the debris from being washed into Canadian territorial waters
and up onto its shores; or that Canada had destroyed the satellite in outer
space to prevent it from falling and injuring Canadian persons and
property inside Canada’s borders. In cases such as these, Canada would
have incurred considerable expense in preventing damage to it from
occurring even though it had not as yet suffered any actual damage. It is
submitted that even in these cases, Canada would have been entitled to
recover under general principles of international law. To see why, we
must examine the principle of mitigation of damages carefully.
Consider three cases of a person’s house catching fire. In case A, the
house burns to the ground but the plaintiff rebuilds it. He mitigates his
damages by restoring himself to where he was before the damage
occurred. In case B, the plaintiff has the opportunity to put out the fire
after it has started, but before it burns down the house. He expends
resources in so doing. He has mitigated his damages by preventing further
damage from occurring, although he has already sustained some actual
damage. In either case, there is no doubt that the plaintiff is entitled to his
expenses in mitigating his damages. 72 Now consider case C. The fire has
not yet reached the plaintiff’s property. He prevents any damage from
occurring by digging a trench around his property. Can there be any doubt
that the plaintiff is still entitled to his expenses in preventing damage
from occurring? Or are we to say that the plaintiff can recover the cost of
preventing more damage in case B because he has already suffered some
damage, but that the plaintiff cannot recover the costs of preventing
damage in case C because he has not yet sustained any damage? Given
the legal policies of putting the losses caused by an activity on the
tortfeaser while encouraging the plaintiff to reduce those losses as far as
possible, it is perverse to distinguish between the two cases.
the
It is true that both municipal and international legal systems have to
draw
line somewhere on granting recovery for precautionary
measures. For example, if a state maintained a special task force to deal
with falling satellites (as the Americans maintain a special group to deal
with nuclear emergencies, a group which participated in Operation
Morning Light73) one would not expect general international law to
provide for that nation to recover its annual costs from launching states.
72 1n Anglo-American common law, in any case: see Gardner v. The King 1933
N.Z.L.R. 730 (S.C.); Banco de Portugal v. Waterlow & Sons Ltd [19321 A.C. 452
(H.L.); H. Street, Principles of the Law of Damages (1962), 32.
73Supra, note 59, 2.
19821
COSMOS 954
The point is not that it would be unjust for launching states to bear the
costs of reasonable precautionary measures. But presumably
the
difficulty of estimating what are reasonable precautionary measures, the
difficulty of pro-rating the expenses among the various launching states
and the absence of any substantial realized or threatened damage all
weigh against granting recovery. It would be a more difficult case if a
state took precautionary measures against a particular danger; for
example, if a state on Skylab’s flight path had taken extensive measures
to prepare for possible damage, it would not have been unthinkable, it is
submitted, that the state might have had a valid claim for damages against
the United States under both general international law and the Liability
Convention. The reason no such claims were made is probably partly
because no state except the United States undertook elaborate measures
in anticipation of Skylab’s return to earth. Some nations may have alerted
their public services, army and medical personnel, but this would have
involved practically no incremental costs; and the incremental costs
incurred were probably so small that international litigation or just
transnational grumbling would have seemed petty.
It is an entirely different situation where there is a clear and imminent
threat of harm to persons or property. Then it is completely consistent
with the legal policies of placing liability on the launching state for
damage to persons and property, and requiring plaintiff states to mitigate
their damage, not to allow plaintiff states
to recover the costs of
preventive measures. In this type of case there are no countervailing
policy considerations.
Haanappel’s assertion that “by no stretch of the imagination” could
the Liability Convention be considered to permit recovery for costs
incurred in preventing damages from occurring is based on an excessively
literalistic approach. The only nontextual support he offers from his in-
terpretation of the treaty is a footnote74 that “[t]he narrow definition of
‘damage’ as contained in Article I (a) of the Liability Convention was
already recognized as ‘one of the major problem’ areas of the Convention
in a Staff Report of 1972 prepared for the Committee on Aeronautical
and Space Sciences of the United States Senate. ‘ 75
A perusal of the United States Senate Committee Report reveals that
the Committee did not believe the treaty allowed recovery for “remote
or indirect damage… for which there is only a hypothetical causal con-
nection with a particular space activity” and “non-physical damage
“such forms as electrical interference (jamming), trespass without
–
74Haanappel, supra, note 58, 149, fn. 11.
75Reference to U.S. Senate Committee Report, supra, note 8.
REVUE DE DROIT DE McGILL
[Vol. 27
injury, and psychic injury (where caused without physical contact)”. 76
There is no recognition in the Report that expenses incurred in pre-
venting a direct threat of physical damage to persons or property is
problematic, let alone non-recoverable, under the Liability Convention.
Consequently, it is submitted that under the Liability Convention a
claim can rest for expenses incurred in preventing physical damage to
persons or property where none has yet occurred.
But let us, for a moment, pursue Haanappel’s reasoning to its logical
conclusion. To be consistent, he would have to maintain that in cases like
case B above (house catching fire), a state can only recover the costs of
reducing existing damage, but not of preventing further damage. Thus, in
the Cosmos case, he would have had to ask how much of Operation
Morning Light could have been justified as an effort to reduce existing
property damage and how much could have been justified only as an
attempt to prevent future damage to persons or property from occurring?
Only the former would have been recoverable. It should be noted that if
Operation Morning Light was entirely justified as a reasonable measure
to reduce existing damage to Canadian property, there would have
been no need to perform the bizarre division of damages that follows
from Haanappel’s argument even if that argument were correct.
By contrast, it follows logically from the propositions that recovery
would be authorized by the Liability Convention for cases like case A
(reduction of existing damage) and cases like case C (prevention of future
damage) that recovery would be permitted in cases like case B, where
expenses have been incurred both in reducing existing damage and
preventing further damage.
By analogy, if it had been necessary to consider the Cosmos case as
being like case B, where costs were incurred partly to reduce existing
damage to property, the costs of Operation Morning Light would have
still been entirely recoverable from the Soviet Union both under general
international law and under the Liability Convention. But, to repeat,
there was no need whatever for Canada to have been sidetracked into
such a discussion, since Operation Morning Light was entirely justified as
a reasonable measure to mitigate damages by reducing existing damage to
Canadian property.77
76Ibid., 22-3.
77Paragraph 17 of the Canadian Statement of Claim, supra, note 3, 905, was
somewhat problematic. It said that “[u]nder general principles of international law,
Canada had a duty to take the necessary measures to prevent and reduce the harmful
consequences of the damage and thereby to mitigate damages.” The implication might be
that the “damage” was the intrusion of the debris, and that the contamination of Canadian
property was a harmful consequence of the damage, and the potential damage averted by
19821
COSMOS 954
D. Interference with the Sovereign Right of Canada to Determine
the Acts that will be Performed on its Territory
A final way in which the Canadian claim could have been phrased
under general international law would have been to say that the presence
of radioactive Cosmos debris within Canadian boundaries interfered with
Canada’s right, by virtue of its sovereignty, to determine the environ-
mental state of affairs within its own boundaries. 78 Canada would have
been entitled to mitigate this damage by removing the debris; hence the
costs of Operation Morning Light would have been recoverable under this
claim.
As Part I of this paper has shown, state A is not liable to state B
merely because, as a result of otherwise legitimate activities on state A,
the environment of state B is changed. There must be something more. In
the Lake Lanoux” case, the tribunal observed that France could not be
liable to Spain merely because France’s use of upstream waters in its own
territory had changed the flow of downstream waters in Spanish territory.
The tribunal did agree, however, that if the use of waters by France had
seriously injured Spanish interests, there would be international liability.
Clearly, the causing of material injury to persons or property is a
“something more” proposition which must be sufficient to qualify an
intrusion of debris as an interference with the plaintiff state’s right to
determine its own internal state of affairs. In other words, insofar as
Canada had a valid claim against the Soviet Union for the causing of
damage, it also had a valid claim for “interference with the sovereign
right of Canada to determine the acts that will be performed on its
territory”.
Consider a hypothetical case where the claim for violation of
Canada’s right to determine the state of affairs in its territory might be of
pivotal importance. Suppose that a satellite landed within Canadian
territory, but in such a remote and desolate part of the country that
Canada could not seriously contend that its territory had been damaged.
The territory is useless anyway. Suppose also, contrary to what this paper
Operation Morning Light was a further “harmful consequence”. As we shall see, the
Liability Convention does not allow recovery for violation of sovereignty, but only for
actual damages to persons or property. Under the Liability Convention, the mere fact of
the intrusion of debris was not “damage” to Canada. It would probably have been more
appropriate to say in para. 17 that”Canada had a duty to take the necessary measures to
mitigate its damages by reducing the damage and preventing further damage from
occurring”. We have assumed that Professor Haanappel would agree with our view that a
state can recover the cost of mitigating its injury from existing damage.
781bid., para. 3.
79Supra, note 20.
McGILL LAW JOURNAL
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argues in Part II (C), that general international law does not permit a
claim for the costs of mitigating potential damage. Finally, suppose that
there is a serious threat that the debris will be carried by wind and water
to more useful and populated areas of Canada. Then Canada could still
cogently contend that the creation of a threat to Canada within Canadian
boundaries is an interference with its sovereign right to determine the
state of affairs on its own territory. The fact that the debris represents a
hazard to Canadians would be the “something more” in addition to the
mere presence of the debris which triggers international liability. The
Nuclear Tests cases provide an example of a situation where the
claim was
“interference-with-right-to-determine-own-state-of-affairs”
critical. One of the problems faced by Australia and New Zealand was
the difficulty of demonstrating how much, if any, harm would be caused
to their inhabitants by the added ionizing radiation caused by radioactive
debris. Their case was made more difficult by the fact that the Australian
National Radiation Advisory Committee had advised
in respect of
particular previous French tests that they represented no significant risk
to the Australian population, a fact not overlooked by the French
government. 8
the
violation of its sovereignty. Paragraph 48 of the application states:
the Australian claim emphasized
0 Consequently,
The Australian Government contends that the conduct of the tests described above
has violated, and if the tests are continued, will further violate international law and
the Charter of the United Nations, and, inter alia, Australia’s rights in the following
respects:
(i) The right of Australia and its people in common with other states and their
peoples to be free from atmospheric nuclear weapons tests by any country is and will
be violated;
(ii) The deposit of radioactive fall-out on the territory of Australia and its dispersion
in Australia’s airspace without Australia’s consent:
a) violates Australian sovereignty over its territory;
b) impairs Australia’s right to determine what acts shall take place within its
territory and in particular whether Australia and its people shall be explosed to
radiation from artificial sources. 8’
Australia’s counsel, Mr Ellicott, argued further that Australia had the
right to determine for itself whether “Australia and its people shall be
exposed to the effects of ionizing radiation from artificial sources. ‘8 2
‘0Request of Australia (Australia v. France), 1973 I.C.J. Pleadings, vol. 1 (Nuclear
Tests) 41, 54, para. 61 (Request dated 9 May 1973); see also Nuclear Tests (Australia v.
France), 1974 I.C.J. 482 (Judgment of 20 December 1974) per Petren J.
8’Supra, note 62, 14, para. 49.
82Argument of Mr Ellicott (Australia v. France), 1973 I.C.J. Pleadings (Nuclear
Tests) 163, 188 (Argument given 21 May 1973).
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Australia seems to have contended that even if it could not prove that
the increased radiation levels in Australia from French nuclear tests
would cause physical injury to Australians,
there was nonetheless
sufficient scientific uncertainty about the effects of increased radiation
that a major policy choice was involved in deciding whether to risk
increased levels in return for some benefit. Australia, in its sovereignty,
had the exclusive right to make this choice. In other words, the
“something more” in addition to the mere intrusion of the debris was that
there was good reason to believe that the debris was seriously harmful.
Thus understood, the argument that Australia had been denied by
France’s activities the rights to determine for itself its own internal state
of affairs seems highly convincing.
Similarly, in the Cosmos case, it would have been valid for Canada to
emphasize the “right-to-determine-its-own-state-of-affairs”
claim if the
Soviets had maintained that the debris was not harmful, or not harmful
enough to warrant recovery operations. Canada could then have replied
that there was at least serious reason to believe that the debris was grave-
ly harmful, and the intrusion of Cosmos interfered with its right to decide
for itself whether radiation levels in the North had increased above
natural levels. Canada mitigated its damages by removing the debris, and
so would then have been entitled to the costs of recovery operations. This
might have been a more persuasive way of putting Canada’s case than
contending that even if no physical harm had occurred, the presence of
the debris was a source of anxiety and concern, which was mitigated by
the recovery operations.83
The problem with relying too heavily on this version of a possible
Canadian claim is that its main focus would have been on Canada’s right
to determine its own policy with respect to radiation levels within its
boundaries, rather than on actual damage caused or potential damage to
persons or property. If the Liability Convention is seen as determinative
of the legal rights of Canada in the Cosmos case, as is contended in this
article,
affairs” claim would have been inadmissible.
the “interference-with-right-to-determine-own-state-of-
then
E. A Note on the Application of the Emergency Right of Entry Principle
It may be that implicit in the Soviet reference to “unintentional
emergency landing” in their reply to the Canadian statement of claim is
an argument that the fall of the satellite calls into play the international
law associated with the emergency landing of ships in distress in foreign
83See supra, Part II(B).
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territory. In the Aerial Incident of 27 July 1955 case the British
pleadings before the I.C.J. maintained that:
It is a rule of the law of the sea that ships which are driven to take refuge in a foreign
port by stress of weather or are compelled to dock byforce majeure or any other over-
ruling necessity, are not subject to the local regulations of the port with regard to any
incapacity, penalty, prohibition, duties or taxes in force in that port” [C. Colombos,
International Law of the Sea, 3d ed. (1954), 249.]
This was affirmed by Lord Stowell in The Eleanor (Edw. 359) where it was held that
“real and irresistible distress” proved by clear and satisfactory evidence “must be at
all times a sufficient passport for human beings” entitling them to the rights of
hospitality in a British Port.84
The British admitted 5 that a right of entry for aircraft in distress is
not specifically guaranteed by the Convention Relating to the Regulation
of Aerial Navigation signed in Paris on 13 October 191986 or by the
Chicago Convention of 7 December 1944.17 They pointed out, however,
that the former provides in art. 22 that “[a]ircraft of the contracting states
shall be entitled to the same measures of assistance for landing,
particularly in case of distress, as national aircraft.” Further, art. 25 of
the Chicago Convention provides that:
Each contracting State undertakes to provide such measures of assistance to aircraft in
distress in its territory as it may find practicable, and to permit, subject to control by
its own authorities, the owners of the aircraft or authorities of the State in which the
aircraft is registered to provide such measures of assistance as may be necessitated by
the circumstances. Each contracting State, when undertaking a search for missing
aircraft, will collaborate in co-ordinated measures which may be recommended from
time to time pursuant to this Convention.
None of this, it is submitted, would have been of much help to the
Soviets. Even if the case of a crashing satellite is covered by the principle
of the emergency rights of entry for ships in distress, it would not follow
that the launching state is exempt from liability for actual damage caused.
The “right of entry” principle arguably only means that a state cannot
forcibly prevent a ship in distress from landing, or take advantage of its
position by taxing or confiscating it. It is possible that the state of landing
might still have an action for the actual damage caused it.8 In this case
84Memorial of U.K (Israel v. Bulgaria; U.S. v. Bulgaria; U.K. v. Bulgaria), 1959
I.C.J. Pleadings (Aerial Incident of 27 July 1955) 331, 358-9 (Memorial dated 28 August
1958).851bid.
8611 L.N.T.S. 1974.
87Interim Agreement on International Civil Aviation, 171 U.N.T.S. 501.
“”There are no cases directly on the point. In the Aerial Incident of27 July 1955 case,
however, the Israeli memorial said in respect of an El Al airliner which they believed to
have unintentionally strayed from its flight path onto Bulgarian territory. Memorial of
Israel (Israel v. Bulgaria; U.S. v. Bulgaria; U.K. v. Bulgaria), 1959 I.C.J. Pleadings
(Aerial Incident of 27 July 1955) 45, 87 (Memorial dated 2 June 1958): “if Bulgarian
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Canada could have conceded that it did not have a claim for nominal
damages for trespass per se under the “ships in distress” principle,89 but
still could have contended that the Soviet Union had to compensate
Canada for its expenditures in correcting those interferences with its
sovereignty –
i.e., immediate damage to property, creation of a hazard to
person or property –
caused by Cosmos’ descent.
Note should be made here of the distinction in international law
between catastrophes involving persons and those involving property. In
the case of salvage, for example, rescuers generally are entitled to a share
of the value of the property saved, but have no right to remuneration for
saving lives.90 There is a tendency, however, to give special status to
rescue operations involving human life and this is reflected in the space
treaties. Commenting on the Agreement on the Rescue of Astronauts, the
Return of Astronauts and the Return of Objects launched into Outer
Space (1968),91 I.C.J. Judge Lachs writes in The Law of Outer Space:
There can be little doubt that in view of the high costs which may be involved in these
operations [i.e., expenses incurred in the rescue, recovery and return of astronauts
and space objects] the reimbursement of the expenses incurred by other States is fully
justified, the more that such provisions are well known in other fields, such as sea and
air navigation. In general, remuneration is provided for salvage of property. On the
other hand, there is a clear trend towards excluding any financial remuneration
wherever assistance in saving human life is involved. As to outer-space activities, no
provision has been adopted as to remuneration or the refund of expenses incurred in
rendering assistance to and the return of astronauts. The silence of the law warrants
the conclusion that no compensation can be demanded. Different is the situation, with
regard to the recovery and return of space objects or their component parts. The
sovereignty was violated.., and if damage and loss were caused to it by that infraction of its
sovereignty, then the Bulgarian Government is entitled to prefer an appropriate claim for
satisfaction or reparation”. It was not inconsistent for the Israelis to admit this possibility
of liability and still contend that the Bulgarians were internationally liable for shooting
down the aircraft.
89This is not much of a concession in view of the feebleness of that claim; see supra,
Part I.
90See the International Convention for the Unification of Certain Rules of Law
Respecting Assistance and Salvage at Sea, Brussels, 23 September 19 10, reproduced in
Canada: External Affairs, Treaties and Agreements Affecting Canada in Force Between
His Majesty and the United States of America, 1814-1925 (1927), 361, and compare
art. 3 thereof with art. 9. By contrast, the Brussels Convention for the Unification of
Certain Rules relating to Assistance and Salvage ofAircraft or by Aircraft at Sea (1938)
gave a rescuer of human lives at sea a right to indemnity for expenses, up to a specified
monetary limit. However, this treaty never came into force. See P. Martin, D. McClean
& E. Martin, Shawcross and Beaumont [:] Air Law, 4th ed. (1977), vol. 2, A 79.
9’22 April 1968, 19 U.S.T. 7570, T.I.A.S. No. 6599, 672 U.N.T.S. 119 [hereinafter
the Rescue and Return Agreement].
McGILL LAW JOURNAL
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expenses are to be borne by the launching authority. Thus any state incurring such
expenses, wherever the action which led to them took place, on its territory or beyond
its frontiers, may present a claim for their refund. It may even request an advance
payment.
92
It is perhaps possible that general international law, extending the
conventional and decisional precedents just canvassed in connection with
non-compensation for recovery and rescue operations, would hold that
actual damage inflicted by a manned spacecraft is not compensable.
Article 5 of the Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies (1967) 93 does not distinguish between manned and
unmanned spacecraft, nor does the Liability Convention. But even if
general international law does make this distinction, there would have
been no grounds for applying it to the Cosmos case.
The argument presented thus far takes the possible Soviet case at its
strongest by assuming that the conventional and decisional precedents of
ships in distress are relevant analogies. Actually, they are not in several
crucial respects. One of the policies behind the “emergency right of
entry” principle is that states jealous of their sovereignty should not
needlessly destroy persons or property when emergencies force them to
intrude onto their territory. In the Cosmos case, the intrusion was not a
deliberate emergency landing to save valuable Soviet equipment, but the
consequence of the survival of universally unwanted debris which the
Soviets had hoped would burn up in the upper atmosphere. 94 Thus one
essential rationale for the “emergency right of entry” principle was en-
tirely inapplicable. The Soviet Union could not have condemned a
Canadian effort to destroy the satellite in the upper atmosphere so as to
prevent ground damage, since the Soviet Union had abandoned the satel-
lite to possible destruction by burn-up on re-entry.
Another justification for the “emergency right of entry” principle is
that when an intrusion is for the purpose of saving life or property, the state
of landing cannot reasonably claim that it has suffered an assault to its
dignity. The same reasoning does not hold when the intrusion is of worse
than useless debris. Consequently, the “emergency
right of entry
principle” could not have stood between Canada and the nominal
compensation it sought for trespass per se. As was shown in Part I,
92M. Lachs, The Law of Outer Space [:1 An Experience in Contemporary Law-
Making (1972), 85.
after the Outer Space Treaty].
9127 January 1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205 [herein-
94See Statement of Claim, supra, note 3, 903, para. 5, referring to the statement by
Alexander N. Yakovlev on 24 January 1978.
1982]
COSMOS 954
however, nominal damages would probably not have been available to
begin with for the harmless, unintentional invasion of debris from an
otherwise legitimate activity.
III. Whether the Liability Convention is Exhaustive of the Legal
Rights Between Canada and the Soviet Union
Part II of this paper examined claims which Canada might have
advanced in accordance with general international law. In Part III, the
authors project the probable Soviet argument that would have been put
forth had the matter reached the litigation stage. There has been little
discussion in the academic literature on Cosmos on this point, and it is
useful to canvass this topic in attempting to understand the avenues of
redress available to states in circumstances similar to the Cosmos
incident.
The Soviets would undoubtedly have argued that parties to the
Liability Convention could not resort to other sources of international
law to find a broader basis of liability than provided for in the Convention
itself. Such speculation is highly credible inasmuch as Soviet jurists have
long preferred conventional law over custom as a source of international
law and would have been expected to argue that the Liability Conven-
tion is exhaustive, and the Soviets would probably have been correct.
International Space Law, 95 a collaborative effort of several Soviet
jurists which describes the development of the law of outer space,
contains
the discussion reproduced below. Note the usual Soviet
objections to custom as a source of international law: it is difficult to
ascertain what the law is, and many of the rules are rooted in the practice
of European colonial powers. By contrast, emphasis is placed on the
definiteness of treaty law and its dependence on the explicit consent of
sovereign states. The passage also expresses the Soviet view that the
novel and unique problems of space law cannot be resolved by reference
to general international law alone, but must be worked out in detail by
means of international conventions guided by the spirit of general inter-
national law. The passage is as follows:
Under Clause B of Article 38 of the Statute of the International Court of Justice of
the United Nations, the court invokes international custom in settling international
disputes. The International Court of Justice was established and functions on the
basis of rules contained
in Chapter XIV of the United Nations Charter. In
accordance with Article III of the Space Treaty, the Charter of the United Nations is
one of the regulators of space activities. The logical conclusion from this is that
9’Supra, note 7. See also G. Tunkin, Theory of International Law, (trans. W. Butler)
(1974), 133-7.
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international custom is the second source of international space law. But this view,
correct as it may appear at first glance, arouses certain doubts, which have to be
cleared up.
A question arises at once as to which international custom may become a legal
regulator of the space activities of states. Will this be the custom of public
international law, which arose out of the practical activities of states, but outside the
sphere of outer space, and which may be applied to regulating the space activities of
states? Or will this be custom arising precisely out of the space activities of states?
The first question may confidently be answered in the negative. International custom
that arose out of the practical activites of states in spheres other than outer space
must not be applied to regulating the space activities of states. Activities “down on
Earth” and in outer space are too different, and so are the conditions in which they
are conducted, for these activities to be subjected to identical regulation. This being
so, the custom of international space law may arise only out of the space activities of
states. This refers to the possibility of the emergence of international custom in the
sphere of space law, but not to the actual emergence of this or that specific custom.
There are serious reasons for this.
For one thing, the Space Age began so recently that states have not had enough time
yet to build up international custom. Up to now the formation of international
custom, as a rule, required routine practical activities by states over a period of many
years, sometimes even centuries, and it was only then that international custom
crystallised from them. How will this be in the future? Can the future space activities
of states give rise to international custom, and what are the conditions in which it may
be formed? Or is it, perhaps, impossible in general for international custom to arise in
the sphere of the space activities of states?
International custom as a source of public international law meets with substantial
political and juridical opposition, especially in the young developing countries. Even
many bourgeois juridical experts take the view that customary international law is
increasingly losing its significance. Peoples who suffered, or are still suffering from
capitalist exploitation cannot forget that the policy of plunder and of relations of
inequality between strong and weak partners rested upon certain international
customs, which were established, above all, by the strong capitalist countries to
further their selfish ends. The bad reputation gained by international custom cannot
but have a decisive influence on the future in the field of space law too.
Is there a need in our age, the age of the scientific and technological revolution, to
attach importance to the spontaneous, unconscious processes whereby customary
rules are formed, considering that a broad road of conscious and systematic law-
making through the conclusion of international treaties and agreements is now open to
all states? It is this rational road of international law-making that is advocated by the
Soviet Union and the other socialist countries, the road of contractually establishing
a system or rules of international law to regulate the space activities of states. And
the Soviet Union’s policy of peace and its vigorous support for the contractual law-
making of states are helping to establish a system of international space law for the
good of all countries. 96
The authors go on to explain the differences between international
customary law and treaty law. The former is identified as problematic in
96Ibid., 74-7.
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COSMOS 954
law might arise
that it is often difficult to discern what the rules entail. The Soviet
preference for treaty law is based on the fact that logically interrelated
rules of contractual law are set down in writing in the treaty’s text, which
can then be interpreted. The Soviet authors do not deny that custom-
in the future, especially when
ary international
emergency situations might, for example, compel astronauts to act
“expediently”
in a manner not previously considered by their state. It is
in this way that, conceivably, customary law may become a secondary,
reserve source of international space law, but the authors go no further.
Both the history of its development and its text support the contention
that the Liability Convention is intended to be exhaustive. As early as
1959, according to Foster, “the question of liability for damage or injury
caused by spacecraft was regarded as being of immediate concern to the
world community”. 97 The international law of state responsibility for
unintentional intrusions was uncertain to begin with, and its application
to space objects even more contentious. 98 It was decided to delay the
drafting of a liability convention until a convention on general principles
of the law of outer space could be developed. 99 A first step was the United
Nations General Assembly Resolution 1962 (XVII) Declaration of
Legal Principles Governing the Activities of States in the Exploration
and Use of Outer Space.100 Sections of this declaration were adopted
almost verbatim in the subsequent three outer space conventions. Thus
art. 4 of the Declaration was later adopted as art. III of the Outer Space
Treaty (1967):
The activities of States in the exploration and use of outer space shall be carried on in
accordance with international law, including the Charter of the United Nations, in the
interest of maintaining international peace and security and promoting international
cooperation and understanding.
Article 7 of the Declaration –
The state on whose registry an object launched into outer space is carried shall retain
jurisdiction and control over such object, and any personnel thereon, while in outer
space. Ownership of objects launched into outer space, and of their component parts
is not affected by their passage through outer space or by their return to earth. Such
objects or component parts shall furnish identifying data upon request prior to return –
later reappears as art. VIII of the Outer Space Treaty, which is
elaborated upon in the Rescue and Return Agreement (1968).101
97Foster, supra, note 53, 138.
98See for example the variety of the opinions summarized by L. Lipson & N.
Katzenbach, Report to the National Aeronautics and Space Administration on the Law
of Outer Space (1974).
99Foster, supra, note 53, 140.
100 United Nations General Assembly Official Records, 18th Sess. Supp. No. 15, 15.
‘OSupra, note 91.
Mc GILL LAW JOURNAL
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Article 8 of the Declaration is
Convention. It reads as follows:
the ancestor of the Liability
Each State which launches or procures the launching of an object into outer space and
each State from whose territory or facility an object is launched, is internationally
liable for damage to a foreign State or to its natural or juridical persons by such object
or its component parts on the earth, in air space, or in outer space.
This was later incorporated into the Outer Space Treaty.
A statement of general principles had been necessary because general
international law was uncertain to begin with, and in any event required
modification in its application to outer space. The Outer Space Treaty
was therefore evidence of some progress towards elaborating rules of
international space law including state responsibility for ground damage.
But the Outer Space Treaty states very general propositions, and these
required further elaboration. In particular, the elaboration of art. VII,
dealing with state responsibility, was urgently required. Foster writes:
The frustration of the international community with respect to the failure of the
Committee on the Peaceful Uses’ of Outer Space to prepare a liability convention is
well illustrated by the U.N.G.A. Res. 2601 (XXIV) on Jaunary 16, 1970. After
recalling the General Assembly’s earlier resolution requesting the Committee “to
complete urgently the draft agreement”,
the resolution states that the General
Assembly:
“Regrets that the Commission has not yet been able to complete the drafting of a
liability convention, a task assigned to it by the General Assembly during the last six
years….
“Expresses its deepest dissatisfaction that efforts to complete the convention have not
been successful and at the same time urges the Committee… to complete the draft
convention on liability in time for final consideration by the General Assembly during
its twenty-fifth session;
“Emphasizes that the convention is intended to establish international rules and
procedures concerning liability for damage caused by the launching of objects into
outer space and to ensure in particular, the prompt and equitable compensation for
damage.’
02
There would thus be strong support in the public record for a Soviet
contention that the Liability Convention was the culmination of a long
law-making process
rules concerning state
responsibility for damage by space objects. The whole purpose of this
process would be negated if states could resort to more ambiguous
sources of international law, such as custom or the Outer Space Treaty,
in an attempt to establish legal claims which find no support in the
Liability Convention.
to establish detailed
.. 2Foster, supra, note 53, 139, fn. 10.
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There is also strong textual support for the view that the Liability
Convention is supposed to state completely the rules covering damage by
space objects. The preamble states:
Recognizing the need to elaborate effective international rules and procedures
concerning liability for damage caused by space objects to ensure, in particular, the
prompt payment under the terms of this Convention of a full equitable measure of
compensation to victims of such damage.
Believing that the establishment of such rules and procedures will contribute to the
strengthening of international cooperation in the field of the exploration and use of
outer space for peaceful purposes.
The Convention then proceeds to set out detailed provisions concerning
liability and the procedure for making claims for damage by space
objects. It gives certain advantages to plaintiff states, such as the absolute
liability provision, in art. II, and certain advantages to launching states,
such as the right to present a claim for indemnification to other
participants in a joint launching, in art. V. What would be the point of
establishing detailed rules and working out compromises between the
rights of launching states and the rights of plaintiff states if parties to the
treaty could still resort to the inscrutable rules of customary international
law?
If there is some argument that resort to general international law is
not precluded to parties to the Liability Convention, it does seem out of
the question for a state party to the Liability Convention to resort to the
state responsibility provisions of the Outer Space Treaty. After all, the
preamble of the Liability Convention says the state parties to it are
“[r]ecalling the Treaty on Principles Governing the Activity of States in
the Exploration and Use of Outer Space, including the Moon and other
Celestial Bodies.” Clearly, the Liability Convention was intended to
make more precise the provisions concerning state responsibility of the
Outer Space Treaty. What sense would it have made if Canada then
referred to the Outer Space Treaty as a source of broader liability than
the Liability Convention when the Liability Convention unambiguously
implies that it is intended to elaborate the Outer Space Treaty?
The Vienna Convention on the Law of Treaties is also relevant in
determining the extent to which the Liability Convention is exhaustive.10 3
T. Elias has pointed out that “[a]lthough it has not yet come formally into
force, the practice since its adoption in May 1969 has been for teachers
of international law, government legal officers and practitioners of
international law and international tribunals to refer to the Convention on
matters relating to treaties as if it were already in force.’ 10 4
103See I. Brownlie, Basic Documents in International Law, 2d ed. (1972), 233.
114T. Elias, The Modern Law of Treaties (1974), 13.
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Article 30 (3) of the Vienna Convention provides:
When all the parties to the earlier treaty are parties also to the later treaty but the
earlier treaty is not terminated or suspended in an operation under article 59, the
earlier treaty applies only to the extent that its provisions are compatible with those
of the later treaty.
Article 59 provides that:
1. A treaty shall be considered as terminated if all the parties to it conclude a later
treaty relating to the same subject-matter and:
(a) it appears from the later treaty or is otherwise established that the parties in-
tended that the matter should be governed by that treaty; or
(b) the provisions of the later treaty are so far incompatible with those of the
earlier one that the two treaties are not capable of being applied at the same time.
2. The earlier treaty shall be considered as only suspended in operation if it appears
from the later treaty or is otherwise established that such was the intention of the
parties.
In other words, a prior treaty on the same subject matter as a later
treaty operates only insofar as it is not “incompatible” with the latter.
There need not be an express suspension of the prior treaty; it is sufficient
that the later treaty manifests an intention by the parties that it is to
supplant the provisions of the prior treaty. It is submitted that even if the
Liability Convention does not imply the intention of the state parties that
it will supplant the Outer Space Treaty between parties to it, it is at least
necessary to read the earlier treaty in the light of the more detailed later
treaty.
While the Vienna Convention only explicitly deals with successive
treaties on the same subject matter, its basic principle should apply to
general international law and a subsequent treaty on the same subject
matter. The Soviet Union could therefore have argued convincingly that
the manifest intention of the Liability Convention to define completely
the rights and remedies of space object accidents precluded resort to the
“incompatible” rules of pre-existing general international law.
A possible Soviet contention that the Liability Convention is
exhaustive would have been especially powerful inasmuch as Canada is
not only a state party to the Liability Convention, but had claimed under
its substantive provisions in accordance with its procedures. In so doing,
Canada had claimed the substantive and procedural advantages of the
Convention; how could it then have side-stepped the disadvantage of the
Liability Convention by attempting to rely on other sources of law?
That it is impermissible to do so should be obvious in tie case of the
procedural provisions of the Liability Convention. By having cited the
Liability Convention, Canada obliged the Soviet Union to settle the
claim within a year or establish a claims commission under art. XII.
Canada would then have been unable to embarrass the Soviet Union by
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presenting a claim under general international law before the I. C.J. while
the negotiating and claims commission process was still operating. Nor
would it have been allowed to maintain a claim against the Soviet Union
under other sources of international law if the claims commission had met
and decided against its claim under the Liability Convention. In either
case, the purposes of the Convention in establishing certain procedures
would have been thwarted if other channels could have been used to press
a claim. Having set it in motion, the process contemplated by the
Liability Convention was the only one Canada could have resorted to.
It should be obvious that Canada could not have used the process
established by the Liability Convention to press claims that were
inconsistent with the substantive provisions of the Liability Convention.
Furthermore, Canada could not have expected the Soviets to overlook
art. XI (2) of the Liability Convention. It reads:
Nothing in this Convention shall prevent a state, or natural or juridical persons it
might represent, from pursuing a claim in the courts or administrative tribunals or
agencies of a launching state. A state shall not, however, be entitled to present a
claim under this Convention in respect of the same damage for which a claim is being
pursued in the courts or administrative tribunals or agencies of a launching state or
under another international agreement which is binding on the states concerned.
Article XI does not expressly refer to the case of a claimant under the
Liability Convention also pursuing through international channels a
claim under general international law. But the general policy of art. XI is
clearly that claimants under the Liability Convention should not be able
to resort to other channels, relying on other theories of liability, to press
claims arising from the same damage. Thus art. XI certainly bolsters the
argument made earlier that the process provided by the Liability
Convention must be used exclusively or not at all. There seems to be no
reason to exempt a state from this principle when its resort to other
channels happens to be based on a theory of liability sounding in general
international law.
It should not be assumed that a plaintiff state can never use the
procedures of the Liability Convention to make claims under other
treaties for other types of damage arising from the same incident. It is true
that many of the procedural articles of the Liability Convention refer to
damage or compensation for damage “under this convention”. 105 But it
might not be stretching the language too far to hold that since the
Liability Convention is part of a trio of related space treaties, a state can
press claims for damages for violations of the other two space treaties
along with its claim under the Liability Convention, where all the claims
arise from the same incident. For example, suppose Canada had wanted
05 See arts XI, Xll, XIII.
1
McGILL LAW JOURNAL
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to claim damages for the alleged Soviet violation in the Cosmos case of
art. 5 of the Rescue and Return Agreement. It would have been highly
convenient if Canada could have processed this claim along with its claim
for damages under the Liability Convention. The wastefulness of
separately litigating two distinct aspects of the same incident argue in
favour of generally allowing claims under the other two space treaties to
be included with Liability Convention claims.
Whereas claims under art. 5 of the Rescue and Return Agreement
and art. VIII of the Liability Convention may peacefully coexist, claims
under art. VII of the Outer Space Treaty and art. VIII of the Liability
Convention cannot. Article VIII of the Liability Convention is an
elaboration of art. VII of the Outer Space Treaty and therefore the earlier
treaty must be read in the light of the later one.
In summary, it is submitted that the Soviet Union would have been
correct in arguing that the Cosmos case had to be decided under the terms
of the Liability Convention. No broader basis of liability than the
Liability ‘Convention allows could have been invoked by Canada. This
does not mean that general international law and the Outer Space Treaty
are entirely irrelevant. In fact, there are two considerations that indicate
the contrary.
First, both general international law and the Outer Space Treaty are
part of the legal and political context in which the Liability Convention
was negotiated and ratified. Thus it would not have been inappropriate for
Canada to have argued that under general international law and the Outer
Space Treaty, Canada should be able to recover the costs of Operation
Morning Light; that the Liability Convention was intended primarily to
ensure “the prompt payment of a full and equitable measure of compen-
sation to victims of damage” caused by space objects; and that it would
therefore be wrong to construe the Convention as putting Canada in a
drastically worse position than it was in before the Convention was
adopted.
Second, the Liability Convention incorporates part of general
international law. Article XII provides that:
The compensation which the launching state shall be liable to pay for damage under
this Convention shall be determined in accordance with international law and the
principles of justice and equity, in order to provide such reparation in respect of the
damage as will restore the person, natural or juridical, state or international
organization on whose behalf the claim presented to the condition which would have
existed if the damage had not occurred.
IV. Possible Claims by Canada under the Liability Convention
In this final part, the types of claims considered in Part II under
general international law are re-examined to determine the extent to which
they are sustainable within the provisions of the Liability Convention.
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COSMOS 954
The first section briefly ties in the extended discussion of trespassper
se previously outlined in Part I. The discussion then moves to a review of
the possible claims listed in Part II and examines the issues of damages
and the sovereign rights of a state as they relate to the Convention.
A Trespass per se
To reiterate the hypothesis set out in Part I, Canada could not have
sustained a claim for trespassper se under the Liability Convention’ The
definition of “damages”
in art. I of that instrument was obviously
intended to be exhaustive and the failure of this definition to include
dignitary damages to states implies that no damages for trespass per se
could be allowed. This was not a mere oversight by the drafters, for the
travaux pr6paratoires’0 6 on the Convention indicate that the Soviet
delegate expressly stated that the Convention should not allow for the
recovery of nominal damages. 07 The Americans concurred with this
view, according to the conclusion reached in the United States Senate
Committee Report.08
Furthermore,
the history of the development of the Liability
Convention and its precursors suggests that the purpose of the interna-
tional community was to ensure that victims of damage from space
objects were properly compensated, not to save plaintiff states from the
affront to their dignity caused by intrusions into their territory. In their
reply of 2 May 1979 to a note by the Canadian Department of External
Affairs, the Soviets drew attention to the provisions of the Outer Space
Treaty and the Rescue and Return Agreement which require states to
rescue and return astronauts, and, upon request, to recover and return
space objects which intrude onto their territory. These articles are
evidence of tolerance for unintentional intrusions of objects, rather than a
policy of condemning these intrusions as a violation of state sovereignty.
Moreover, the third and fourth paragraphs of the preamble of the
Liability Convention, which respectively recognize that damage by space
objects may take place notwithstanding precautionary measures by states
and international organizations, and the necessity of providing compen-
sation for victims of such damage, emphasize the aim of compensation,
not condemnation.
In summary, even if general international
damages for the unintended intrusion of a space object –
does not109 –
law allows nominal
and it probably
the Liability Convention does not. As a party to the
1068 I.L.M. 679, 692 art. 32 (1969).
107Supra, note 53, 52.
“‘8Supra, note 8.
109Supra, Part I.
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Liability Convention, and one who has taken advantage of its
provisions” Canada cannot resort to a theory of liability incompatible
with the terms of the Liability Convention.
One intuitive understanding of “damage”
B. Existing Damage to Persons and Property and Mitigation Thereof
to property is a drastic
change in its physical structure. It is submitted that a more sophisticated
understanding of the meaning of damage better serves the purposes of the
Liability Convention. This understanding supposes that property has no
intrinsic, universal value which transcends human evaluation. Property is
only worth what people think it is worth. “Damage” to property means it
has been rendered less suitable for those human purposes for which it was
originally valued.
If rain caused by weather modification activity of the defendant state
falls upon the territory of the plaintiff state, has there been damage to the
plaintiff state’s land? The answer depends upon the circumstances. If the
land has been set aside for growing rice, the rain is irrigation. If the land is
being used to build residential housing, the rain may be considered a
flood. It cannot be said that there has been damage just because there has
been a change in the chemical and physical structure of the topsoil. A
determination of whether “damage”
to the land has occurred is contin-
gent on whether inhabitants of the plaintiff state value the land more in its
original condition or in its condition after the incident occurs.
Consequently, while the spreading of radioactive material may not
produce any obvious changes in physical or chemical structure, such as a
dent in the ground, it may nonetheless amount to grave damage to
property – because it cannot be used for human purposes such as habita-
tion and agriculture, and so is less valued by its owners. Conversely, the
physical disintegration of a building caused by the impact of a satellite
may not be damage –
if the building was scheduled for demolition.
So far, it has been shown how human evaluation, not just a change in
physical or chemical structure, is a component of a determination that
to property” has occurred. The next task is to show the
“damage
importance of information
in human evaluation. In the examples
considered thus far, the physical or chemical state of the possibly
“damaged” land was known by its inhabitants. But they may not have
known how useful the land was in its final state. If nuclear debris scatters,
the inhabitants may know exactly where each concentration of particle is
and how much radiation it is emitting –
but not how damaging this
radiation is to human beings. Thus they don’t know if the land is safe for
” 0Supra, Part III.
1982]
COSMOS 954
habitation. This makes it less valuable to them. As long as there is sound
reason to believe that the levels of ionizing radiation might be harmful,
the land may be considered entirely uninhabitable.
This is one point Canada might have made in the Cosmos case.
Canada need not have proved exactly how dangerous ionizing radiation
was to persons; as long as there was a sound reason to believe it might
have been sufficiently harmful to cause physical illness, areas where it
was present were less useful to Canada for almost any human purpose to
which it might have ordinarily been put.
But what if the physical or chemical state of the land is not known
until after an incident? This type of uncertainty can also be a component
of the evaluation its owners have of the property. Consider this
hypothetical story.
Two neighbouring states, Chelm and Largovia, agree to a convention
whereby each is absolutely liable to the other for damage (the definition is
the same as in art. I (a) of the Liability Convention) caused by its army
to the other state. Full compensation (the definition is the same as art.
XII of the Liability Convention) is to be made for such damage.
One day, while on manoeuvres involving the practising of laying land
mines, a Chelm army brigade inadvertently wanders onto Largovian
territory. The next day both Chelm and Largovia realize that a vast
stretch of Largovian territory was traversed during the manoeuvres. The
confused Chelm army is unable to say how mines were laid in Largovia,
or where.
Largovia conducts a massive minesweeping operation, the costs of
which it claims from Chelm. Is it entitled to recover under the
Convention?
Suppose that only a few live mines are actually discovered. If the
location and nature of these mines had been known, their locations could
have been marked and cordoned off, and only a small part of Largovian
land would have been devalued. The costs of removing the damage by
defusing the mines would have been appreciable, but much smaller than
those of the operation that actually took place.
But because it was not known how many live mines there were, or
where they were, the vast stretch of Largovian territory traversed by the
Chelm brigade was less usable. Therefore, the whole area of land was
damaged. Largovia mitigated its damages by searching the whole area.
The damage was removed not just by defusing the live mines but by
proving that there were none in the rest of the area. It is submitted that
Largovia should recover all of its costs and not just what its costs would
have been had it known exactly where the mines were.
McGILL LAW JOURNAL
[Vol. 27
Indeed, if no live mines had been discovered, it is submitted that the
entire costs of the operation would still have been recoverable. The
concern that there were live mines made the territory less usable and thus
the land was damaged; this damage was caused by Chelm’s army.
Consider, for example, the recent Mississauga, Ontario train ac-
cident.”‘ A city had to be evacuated because of concern that chlorine
gas had escaped or would escape from a wrecked tank car. It turned out
that most of the chlorine escaped into the upper atmosphere during an
explosion when the crash occurred. Thus the danger was in fact much less
than had been believed. Furthermore, the chlorine which did remain did
not drift into Mississauga in dangerous concentrations. But it would be
misleading to say that Mississauga was not “damaged” by the train ac-
cident. The city was uninhabitable until it was verified that the danger
had passed.
To refer back to the hypothetical example, the Cosmos case seems to
be like the case where a few mines are found. Had Canada known exactly
where the concentrations of dangerous material were located, it could
have been said that a fairly small part of its territory had been damaged.
No massive clean-up operations would have been necessary.
But until the operations were undertaken, a vast stretch of the Arctic
was less valuable to Canadians. They were concerned about the dangers
of travelling, visiting or inhabiting this land, or eating the animals and
plants that came from it. Thus they had to avoid using the land altogether
since various areas were cordoned off during Operation Morning Light,
use it only after taking expensive precautions, or continue using it as they
had been, but with more concern and anxiety than they would have
otherwise. In any of these events, their estimation of the value of the land
would have been less –
and would only have risen again had the
Canadian government, as it did, taken elaborate search and clean-up
operations.
It is difficult to quantify exactly the devaluation of Canadian
territory, but there is in fact no need to do so because, as has been
argued, 1 2 under general international law, Canada would have been
entitled to recover the incremental costs of its recovery operations on the
grounds that Cosmos damaged Canadian territory and Canada had mi-
tigated its damages by removing the debris. This same type of claim, it is
submitted, would have been clearly sustainable under the Liability Con-
vention. The nuclear contamination of vast stretches of Canadian territory
was damage to “persons and property” within the meaning of art. I (a) of
“‘Globe and Mail (12 November 1979), p. 1, col. 6.
112Supra, Part II (A).
19821
COSMOS 954
the Liability Convention. Under general international law it is not an ob-
jection to the awarding of damages that no more than a rough estimate of
the correct quantum is possible. 113 Moreover, even if the difficulty of
estimating damages were an objection to awarding any, this objection
disappears where the plaintiff state converts its damage into a readily
calculable form –
the costs of reasonable measures to remove the
damage.
Article XII of the Liability Convention expressly states that the
damages are to be determined in accordance with “international law and
the principles ofjustice and equity, in order to provide such reparation in
respect of the damage as will restore the person, natural or juridical,.., to
the condition which would have existed
if the damage had not
occurred.” 114 Therefore, the fact that general international law would not
allow the difficulty of calculating an exact quantum of damages to prevent
the awarding of damages implies that the difficulty does not preclude
recovery under the Liability Convention. In any event, Canada’s
incremental cost in restoring itself to the condition it was in before the
damage occurred were readily calculable. If among the principles of
general international law is the principle that a state is entitled to its
expenses in taking reasonable steps to mitigate its damages, these
expenses –
in the Cosmos case, the incremental costs of recovery
operations – would also be recoverable under the Liability Convention.
Furthermore, it would be entirely inconsistent with the expressly
stated policy of the Liability Convention not to allow compensation for
costs in mitigating damages. Article II fixes absolute liability on the
launching state. The preamble emphasizes that victims should receive “a
full and equitable measure of compensation”. Article XII explains that
the goal in fixing the quantum of compensation is to restore the victim to
the condition which would have existed had the damage not occurred.
Canada incurred expenses in restoring itself to the condition which would
have existed “if the damage had not occurred”. To hold that these
expenses were not compensable would be to completely negate the
obvious purpose of the Liability Convention –
to remove the financial
burden of restoring victims of space object damage to the equivalent of
their original condition and place that financial burden on the launching
state.
It should be mentioned that the negotiating record of the Liability
Convention does not undermine Canada’s position. It is true that Canada
abstained from the approval given to the final draft of the Liability
“‘See Sapphire International Petroleums, supra, note 60.
“4[Emphasis added.]
REVUE DE DROIT DE McGILL
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Convention in the United Nations General Assembly resolution, but it
did so on the grounds that it was unacceptable for a victim to receive less
compensation because he was injured by a space object launched by
another state than he would have received if he had been injured in a less
exotic manner.11 Canada would have preferred to have the quantum of
compensation determined by reference to the domestic law of the victim’s
state, so long as that law was not incompatible with international law.
Article XII of the Liability Convention, of course, settled on the
standard of “international law and the principles of justice and equity”.
Such issues as whether moral damages for pain and suffering are
obtainable, and when damage becomes too remote to be compensable,
were left to be decided in accordance with this general standard, as well
as the more specific direction of the Liability Convention that the victim
be restored to an equivalent of his original condition. 16 While Canada
would clearly have preferred the domestic law of the victim’s state as the
standard of compensation,
the negotiating record of the Liability
Convention does not embarrass Canada in its contention that the
contamination of its territory by Cosmos debris is damage within the
meaning of the Convention, and that it is entitled to recover its expenses
in mitigating its damages by removing the damage.
C. “Psychological Harm” as Material Damage
Canada could have made a plausible claim under the Liability
Convention that the intrusion of Cosmos debris caused “psychological
harm” to some Canadians and that Canada mitigated its damage by
removing dangerous concentrations of debris, verifying that the land was
safe thus alleviating the psychological damage. In Part II(B) this concept
was analyzed in relation to a claim under general international law and
most of it is germane to a claim under the Liability Convention.
Most western commentators interpret “damage” to health under the
Liability Convention as including at least some kinds of psychological
damage. Stephen Gorove writes:
The broad phrase, “loss of life, personal injury or other impairment of health” may
mean not only physical injury but also injury affecting mental as well as other social
well being. In support of this position attention may be called to the definition used by
the World Health Organization, which describes health as “a state of complete
physical, mental and social well being”. Viewed against this definition, the phrase
“other impairment of health” seems broad enough to cover personal injury resulting
in the impairment of mental faculties. If health in such a sense is directly affected,
recovery may be had. 17
4 abstentions (Canada, Iran, Japan and Sweden).”
“5Foster, supra, note 53, 137, fn. 3: “The Resolution carried by a vote of 93 to 0 with
” 6See U.S. Senate Committee Report, supra, note 8, 23.
7 Gorove, Cosmos 954: Issues of Law and Policy (1978) 6 J. Space L. 137, 140.
1
19821
COSMOS 954
Foster cites art. I (a) and continues:
From the broad terminology used in this definition it is clear that all injuries to
persons are covered whether or not they are accompanied by objective or
substantially harmful physical or psychopathological consequences provided they at
least result in an “impairment of health”. Moreover, it is immaterial whether the
injuries are suffered through physical impact with a space object or result from
biological, chemical or radiological contamination emanating from a space object. 118
Ronald Alexander writes:
While the Liability Convention does not explicitly permit the recovery for the
decedent’s pain and suffering.., it does permit a recovery for “impairment of health”
where a claimant suffers personal injury. Since impairment of physical health
constitutes “personal
injury”, the Convention’s reference to impairment of health
must relate instead to impairment of emotional or mental health. The provision thus
seems to permit recovery for the injured person’s pain and suffering if he lives, and
probably would allow a like recovery even when he subsequently dies of the
injuries.’ 19
Unfortunately, little research has been done by Canadians on the psycho-
logical impact which the Cosmos incident had on Northern residents.
Assuming that it is hyberbolic to talk about “terror” or “nervous shock”,
it might still have been appropriate for Canada to point to the concern
and anxiety of Northern residents over the possibility of nuclear con-
tamination. Major Aikman reports that when Lt Col. Davidson spoke
to the native people at Baker Lake they “wanted to know what radiation
would do to the caribou, to the fish, and to them”; 120 they were clearly
very worried about the effects of radiation, and their concern was
lessened by the clean-up operations.
It would have been difficult to estimate the extent and magnitude of
such mild psychic disphoria, and difficult to determine what would count
as “just and equitable” compensation for it. Note, however, that the
difficulty of calculating exactly the quantum of damages
is not, as
previously stated, in international law a bar to their being awarded.’ 2′ In
any case, Canada would not have asked for such a difficult calculation to
be made. In any event, Canada did not ask for such a difficult calculation
to be made. It presented a precisely calculated claim for the costs of
mitigating its damages, one aspect of which arguably was psychological.
That is, it could have been argued:
1. “Health”
is defined in the Constitution of the World Health
Organization as meaning “a state of complete physical, mental and
“‘Foster, supra, note 53, 155.
19Alexander, Measuring Damages Under the Convention on International Liability
for Damage Caused by Space Objects (1978) 6 J. Space L. 151, 155.
12Supra, note 67, 20.
a1″Supra, Part II (A).
Mc GILL LAW JOURNAL
[Vol. 27
social well being.’ 1 22 The anxiety and concern the residents of a state
experience as a result of the intrusion of radioactive debris is there-
fore an “impairment of their health”. Thus, it is “damage” within the
meaning of the Liability Convention.
2. Canada mitigated its damages by conducting extensive search and
clean-up operations.
3. Under the Liability Convention, a state is entitled to its expenses
incurred in taking reasonable measures to mitigate its damages.
D. Prevention of Future Damage
It is submitted that even if Canada had had to rest its claim under the
Liability Convention entirely on the basis that it incurred expenses in
taking reasonable measures to prevent future damage to persons and
property, Canada would still have had a valid claim under the Liability
Convention. Thus, Canada could have argued that Operation Morning
Light prevented future damage, such as irritation of Northern travellers
who would chance upon Cosmos debris, from occurring. 12
E. Interference with the Sovereign Right of Canada to Determine the
Acts that will be Performed on its Territory
The definition of “damage”
in the Liability Convention does not
include interference with a state’s right to determine the environmental
state of affairs within its own boundaries. Since art. I (a) says “damage
means” rather than “damage includes”, the definition, as pointed out
earlier, is clearly intended to be exhaustive. The definition was the
result of protracted and contentious negotiations, and it must be
assumed that it is incompatible with the purposes of the Liability
Convention for a party to the Convention, let alone a party which had
already
the substantive and procedural provisions of the
Liability Convention, to allow recovery on a broader theory of what
constitutes “damage”. Thus, while the “right-to-determine-its-own-state-
of-affairs” claim is probably sustainable at general international law, 124
and perhaps under art. VII of the Outer Space Treaty which refers simply
to “damage” to a state, the operation of the Liability Convention would
preclude Canada from validly making this type of claim in the Cosmos
case.
invoked
12Constitution of the World Health Organization, opened for signature 22 July
1946, T.I.A.S. No. 1808, 14 U.N.T.S. 185, preamble.
21A detailed argument for this proposition is presented, supra, Part 11 (C).
24 See supra, Part II (D).
