Did the President’s Lawyers Tell Him to Shoot Down the Spy Satellite?

The press is loving the Defense Department’s recent disclosure of a decaying U.S. spy satellite that’s falling out of orbit, and U.S. plans to shoot it down before the school-bus-sized object crashes to earth. The latest news suggests that the U.S. Navy will take its first shot at the satellite this Thursday.



Most of the ensuing discussion has focused on conspiracy theories about (a) the satellite’s purpose and contents or (b) suggestions that the shoot-down is merely a cover for U.S. testing of its anti-missile technology. I can’t speak to either of these two theories, but wanted to put forward at least a third possibility for consideration; the lawyers are telling the President to do this.



After all, putting aside the more general question of state responsibility here, the United States has pretty clearly bound itself to accept liability for any damage its wayward satellite causes as it comes out of orbit. Under the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, the United States agreed in Article VII, as follows:

That general liability provision is spelled out in far more detail in the 1972 Convention on International Liability for Damage caused by Space Objects. Article II provides “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight.” States whose nationals or property are injured by a space object have a year to make a diplomatic claim for damages (there’s no need to exhaust local remedies). If the two sides cannot settle the matter that way, either can request the establishment of a Claims Commission. The treaty details the procedures for establishing that three-member Commission, and provides that, although its award shall be public, it is only recommendatory to the parties unless the two sides agree that it will be final and binding. The United States is a party to both of these treaties.



Now, it’s true that none of these provisions requires the United States to stop the satellite from falling back to Earth; they only suggest that the United States will have to pay any damages that result from that fall. On the other hand, I’d suspect that the relevant space law experts informed the President (and DoD) that the international liability here is not the sort that can easily be avoided should it occur; there’s not much wiggle room presumably in having accepted “absolute liability” as the relevant standard. And, given that DoD has suggested the satellite might produce a deadly toxic cloud over several hundred square yards, I’d assume any damage to a populated area would far outstrip the estimated $40-60 million cost of trying to shoot the satellite down. So, even if the Claims Commission only recommends a damage amount, the United States can only quibble around the edges; it would be hard pressed to argue no compensation is owed. Thus, I’d like to think that the international treaty obligations played a part in the decision to try and shoot the satellite down (although non-lawyers would presumably hope that the decision-makers would recognize this was the right thing to do in any event)



Assuming the legal obligations had some effect on the decision-making, the more interesting question may be why stay silent about that. I’ve seen little suggestion or acknowledgement of the legal obligations at stake for the United States here. I’d presume that such obligations might also beat back some of the conspiracy theories and arguments over non-proliferation obligations, etc. On the other hand, this is not an administration that has shown any special solicitude for treaties, so perhaps they feel a more general defense of their actions is the better course?



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