1st DR.

MVVS MURTHI NATIONAL MOOT COURT COMPETITION ON

SPACE LAW, 2020

Team No.

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE

PEACE PALACE, THE HAGUE

CASE CONCERNING SPACE DEBRIS AND LIABILITIES ARISING OUT OF

COLLISION OF SPACE OBJECTS

STATE OF NETHEREALM

v.

STATE OF KANDHOR

ON SUBMISSION TO THE

INTERNATIONAL COURT OF JUSTICE

MEMORIAL FOR THE RESPONDENT

STATE OF KANDHOR
 TABLE OF CONTENTS (change) (can be borrowed from SLS Memo 2018)

LIST OF ABBREVIATIONS .............................................................................................................

iii
TABLE OF AUTHORITIES ...............................................................................................................
v
A. IMPORTANT LEGAL
DOCUMENTS ..................................................................................... v
B. TREATIES AND INTERNATIONAL
AGREEMENTS ................................................................ v
C. INTERNATIONAL LAW CASES .......................................................................................
v i) International Court of Justice
(I.C.J.) ............................................................................... v ii) Permanent Court of
International Justice (P.C.I.J.) ....................................................... vi iii) Arbitral
Tribunals ......................................................................................................... vi iv)
National Court
Decisions ............................................................................................. vii
D. UNITED NATIONS’ MATERIALS ..................................................................................
vii
E. LITERATURE ................................................................................................................
.. viii i)
Books ..........................................................................................................................
.. viii ii)
Collections ..................................................................................................................
.... x iii)
Articles ........................................................................................................................
.. xi iv)
Dictionaries .................................................................................................................
. xv
F. INTERNET
SITES .................................................................................................................. xv
G. MISCELLANEOUS .........................................................................................................
..... xvi
QUESTIONS PRESENTED ............................................................................................................
xvii STATEMENT OF AGREED
FACTS ............................................................................................... xviii
SUMMARY OF ARGUMENTS .....................................................................................................
xxvi
ARGUMENT ..................................................................................................................................
1
A) RASTALIA ACTED IN CONFORMITY WITH INTERNATIONAL LAW BY REFUSING TO RETURN
COULEUR AND COMMANDER BORSCH TO BANCHÉ AND REFUSING THE EARLIER RETURN OF
MS. PAULA TO BANCHÉ ...........................................................................................................
1
I. Rastalia complied with Article 5 of the Agreement on the Rescue of Astronauts, the
Return of Astronauts and the Return of Objects Launched into Outer Space (hereinafter
ARRA) by refusing to return Couleur to Banché ................................................................ 1
1. The space object, Couleur, is discovered in
Rastalia .................................................. 1
2.Couleur is of hazardous and deleterious nature because of GODA laser on board ..... 2
3.Rastalia informed Banché for Couleur’s nature ........................................................... 4
II. Rastalia’s refusal to return Commander Borsch to Banché is in conformity with
international
law .................................................................................................................. 5
1. Couleur’s landing was neither due to accident, distress or emergency nor was it
unintended .............................................................................................................
.......... 5 a.Couleur did not experience an
accident .................................................................... 5
b. Couleur was not in distress or
emergency ............................................................... 6
c. Couleur’s landing was intended..............................................................................
6
2. Rastalia exercises jurisdiction over Borsch on the basis of
territoriality .................... 8 a. Rastalia exercises criminal jurisdiction over
Borsch ............................................... 8
b. Rastalia retains Borsch while examining his request for political
asylum .............. 8
III. Rastalia acted in conformity with international law by refusing the earlier return of
Ms. Paula to Banché ..........................................................................................................
10
1. Ms. Paula is a spaceflight participant ..................................................................
11
2. Ms. Paula’s return to Banché was conducted in due time ...................................
12
B) RASTALIA IS NOT LIABLE UNDER INTERNATIONAL LAW FOR THE DAMAGE TO COULEUR
13
 I. Rastalia is not liable for Couleur’s damage ..............................................................
13
1.Couleur’s damage was not caused by Lavotto-1 ........................................................
13
2. Rastalia was not at fault .............................................................................................
14 a. Rastalia complied with its legal duties ..................................................................
15
i. Rastalia conformed to Article IX OST and customary environmental law ....... 16
ii. Rastalia conformed to UNCOPUOS Guideline 6 on debris mitigation ............ 18
b. Rastalia exhausted all appropriate means to mitigate the situation .......................
20
c. Rastalia was acting under force majeure ...............................................................
22
II. Rastalia is not responsible for Couleur’s
damage ........................................................ 24
C) BANCHÉ IS LIABLE UNDER INTERNATIONAL LAW FOR THE COSTS OF RECOVERY OF
COULEUR, THE RESCUE AND MEDICAL EXPENSES FOR COMMANDER BORSCH, THE COSTS
OF THE EVACUATION OF LAKE TAIPO, AND THE DEATHS OF BOTH MR. THOMAS AND MR.
BARTON ................................................................................................................................. 26
I.Banché is liable under Article 5 ARRA for the costs of Couleur’s recovery .................
26
1. Recovery constitutes return’s necessary
precondition .......................................... 26 2. States have proceeded to recovery
without request while applying ARRA ......... 27
II. Banché bears liability for Commander Borsch’s rescue and medical expenses under
Article VII OST .................................................................................................................
28
1. Couleur caused Rastalia’s damage ........................................................................
28
2. Rastalia’s economic loss constitutes damage under Article VII OST ..................
29
III.Banché is liable for the costs of Lake Taipo’s evacuation ...........................................
29
IV.Banché is liable under international law for the deaths of both Mr. Thomas and Mr.
Barton ................................................................................................................................
31
SUBMISSIONS TO THE COURT .................................................................................................
xxviii
 LIST OF ABBREVIATIONS (change)

Agreed Facts Facts of the present case, as agreed by the Parties

ARRA Agreement on the Rescue of Astronauts, the Return of Astronauts

and the Return of Objects Launched into Outer Space

Articles on Responsibility of States for Internationally Wrongful

ARSIWA
Acts

CBDR Common But Differentiated Responsibility

Clarification
Response to Requests for Clarification of the 2016 Manfred
Lachs

Moot Court Competition

Compromis Special Agreement Between the Republic of Banché and the

Republic of Rastalia

CW Continuous Wave

GODA Global-Orbiting Deflection Apparatus

I.C.J. International Court of Justice

ILC International Law Commission

LEO Low Earth Orbit

LIAB
Convention on International Liability for Damage Caused by
Space

Objects
OST Treaty on Principles Governing the Activities of States in the

Exploration and Use of Outer Space, including the Moon and

Other

Celestial Bodies

P.C.I.J. Permanent Court of International Justice

U.N. Charter Charter of the United Nations

United Nations Committee on the Peaceful Uses of Outer
UNCOPUOS
Space

U.N. United Nations

USSR Union of Soviet Socialist Republics

v. Versus

VCLT Vienna Convention on the Law of Treaties

Weapon of Mass Destruction

WMD
 INDEX OF AUTHORITIES (change)

A. IMPORTANT LEGAL DOCUMENTS

B. TREATIES AND INTERNATIONAL AGREEMENTS

Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects
Launched into Outer Space, entered into force Dec. 3, 1968, 19 U.S.T. 7570, 672 U.N.T.S.
119 ▶ 1

Convention on International Liability for Damage Caused by Space Objects, entered into
force
Oct. 9, 1973, 24 U.S.T. 2389, 961 U.N.T.S. 187 ▶ 14

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, Including the Moon and Other Celestial Bodies, entered into force Oct. 10, 1967, 18
U.S.T. 2410, 610 U.N.T.S. 205 ▶ 3

C. INTERNATIONAL LAW CASES

i) International Court of Justice (I.C.J.)

Request for an examination of the situation in accordance with paragraph 63 of the court's
judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) (Judge
Weeramantry Dissenting Opinion) 342-344, 1995 I.C.J. (Sept. 22) ▶ 31

ii) Permanent Court of International Justice (P.C.I.J.)

SS Lotus (France v. Turkey) (Judgment) 1927 P.C.I.J. 20 (ser. A) N° 10 (Sept. 7) ▶ 8

iii) Arbitral Tribunals

Trail Smelter Arbitration (U.S. v. Can.) 1938/1941, R.I.A.A. 1905 ▶ 23, 33

iv) National Court Decisions

U.S.

State v. Chesson, 948 So.2d 566, 568 (Ala. Civ. App. 2006) ▶ 12

D. UNITED NATIONS’ MATERIALS

Articles on the International Responsibility of States for Wrongful Acts, Report of the
International Law Commission on the work of its 53rd Session, GAOR, 56th Sess., Supp. No.
10, A/56/10 (2001) ▶ 14

Declaration of the United Nations Conference on the Human Environment, adopted Jun.16,
1972, Principle 21, U.N. Doc. A/Conf.48/14/Rev. 1(1973) ▶ 18

"Force majeure" and "fortuitous event" as circumstances precluding wrongfulness: survey of

State practice, international judicial decisions and doctrine-Study prepared by the
Secretariat
(Document A/CN.4/315), in YEARBOOK OF INTERNATIONAL LAW COMMISSION 69 (1978) ▶
23

G.A. Res. 52/56, U.N. GAOR 52th Sess., U.N. Doc A/RES/52/56 (1998) ▶ 19

G.A. Res. 62/217, U.N. GAOR, 62nd Sess., U.N. Doc. A/RES/62/217 (2008) ▶ 19

G.A. Res. 70/82, U.N. GAOR 70th Sess., U.N. Doc A/RES/70/82 (2015) ▶ 19

Report of the Committee on the Peaceful Uses of Outer Space, U.N. GAOR, 62nd Sess.,
Supp.
No. 20, at 47-50, U.N. Doc. A/62/20 (2007) ▶ 17

Rio Declaration on Environment and Development, Principle 2, U.N. Doc. A/CONF.151/26

(vol. I) (1992) ▶ 18

Summary Record of the Eighty Seventh Meeting of the Legal Sub-Committee, Special
Session, UN Doc. A/AC. 105/C. 2/SR. 87, 10 ▶ 10

U.N. GAOR 56th Session, Supp. No. 10, U.N. Doc. A/56/10 (2001) ▶ 2

Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp. No
13, UN Doc A/810 (1948) ▶ 9

E. LITERATURE

i) Books
TUULA HONKONEN, THE COMMON BUT DIFFERENTIATED RESPONSIBILITY PRINCIPLE IN
MULTILATERAL ENVIRONMENTAL AGREEMENTS: REGULATORY AND POLICY ASPECTS, 2-3
(2009) ▶ 21
ii) Collections

Yoshiro Matsui, The principle of “Common but differentiated responsibilities”, in

INTERNATIONAL LAW AND SUSTAINABLE DEVELOPMENT: PAST ACHIEVEMENTS AND FUTURE
CHALLENGES, 95-96 (Nico Schrijver & Friedl Weiss eds. 2004) ▶ 20, 21

iii) Articles

Zhao Yun, A Legal Regime for Space Tourism: Creating Legal Certainty in Outer Space, 74
J. AIR L. & COM. 959, 978 (2009) ▶ 11

iv) Dictionaries

BLACK’S LAW DICTIONARY 451, 491, 16, 250, 277, 725 (9th ed. 2009) ▶ 2, 6, 12

F. INTERNET SITES

http://www.universetoday.com/12199/water-or-land-the-orion-landing-choice/ [Universe
Today] ▶ 8

G. MISCELLANEOUS

U.S. Department of Defense News Transcript, DoD News Briefing with Deputy National
Security Advisor Jeffrey, Gen. Cartwright and NASA Administrator Griffin, Feb. 14, 2008
▶18
 STATEMENT OF JURISDICTION (add)

https://unctad.org/en/Docs/edmmisc232add19_en.pdf
https://www.icj-cij.org/en/basis-of-jurisdiction

The Counsel for the Respondent humbly submits this Memorandum in response to the

petition against the Respondents by the Petitioners. The Counsel submits that the territorial

jurisdiction lies with the High Court of Zelhi under Article 2271 of the Constitution of India,

1949, and in accordance with Section 92 of the Code of Civil Procedure, 1908, read alongside

with Section 20(A), (B)3

1
227. Power of superintendence over all courts by the High Court. — [{(1) Every High Court shall
have superintendence over all courts and tribunals throughout the territories in relation to which it exercises
jurisdiction.}]
(2) Without prejudice to the generality of the foregoing provision, the High Court may—
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of
such courts; and
(c) Prescribe forms in which books, entries and accounts shall be kept by the officers of any such
courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of
such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be’
inconsistent with the provision of any law for the time being in force, and shall require the previous approval of
the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any
court or tribunal constituted by or under any law relating to the Armed Forces.
2
9. Courts to try all civil suits unless barred. —The Courts shall (subject to the provisions herein contained)
have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or
impliedly barred.
3
20. Other suits to be instituted where defendants reside or cause of action arises. —Subject to the
limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction—
(a) the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or personally
works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or personally works for gain, provided that
in such case either the leave of the Court is given, or the defendants who do not reside, or carry on
business, or personally work for gain, as aforesaid, acquiesce in such institution; or
 STATEMENT OF FACTS (add)

1. Manufacturer of private space equipment, Orion Arrow Ltd. is a subsidiary of a

multibillion-dollar conglomerate Omega GR Pvt. Ltd. with its head office in Aternia
where it is barred by law to manufacture whole space vehicles/ within its territory for
independent and commercial usage. As a result of which, the company, after approaching
various countries, ultimately established its units in Netherrealm for the purpose of
manufacturing Fully Reusable Launch Vehicles (FRLVs) which later got approved by the
Government of Netherrealm to be launched as commercial space flights.
2. On 4th October 2050, a commercial space flight, the control of which was assigned to two
astronauts took-off from the airstrip in the country of Netherrealm. At reaching the lower
space orbital, ground control informed the co-astronaut that an object was approaching
the flight’s travel trajectory which would likely result in a collision. The co-astronaut
negligently failed to inform his counterpart relying on absence of any warning signal
from the path detector system.
3. However, after a few minutes, when the path detector system initiated alarms of the
same, no amount of manoeuvring could save the ship as it remained under the control of
the exit velocity used to escape from Earth’s gravitational pull. Hence, the ship failing to
make it, collided with the object and exploded.
4. A report conducted by the company stated that the foreign object was a satellite launched
six months before the collision by Kandhor. Kandhor did its duty by immediately
informing the international community about the fact that they had lost control of the
satellite just a few hours before the collision and dismissed the fabricated report
conducted by the company placing the blame on them.
5. All parties have agreed to the jurisdiction of International Court of Justice as they are
members of United Nations.
 ISSUES RAISED (change)

a. Whether Rastalia acted in conformity with international law by refusing to return Couleur and
Commander Borsch to Banché and refusing the earlier return of Ms. Paula to Banché,

b. Whether Rastalia is not liable under international law for the damage to Couleur,

c. Whether Banché is liable under international law for the costs of recovery of Couleur, the
rescue and medical expenses for commander Borsch, the costs of the evacuation of Lake Taipo,
and the deaths of both Mr. Thomas and Mr. Barton;

and to dismiss all claims to the contrary.

 SUMMARY OF ARGUMENTS

ISSUE 1: KANDHOR IS NOT LIABLE FOR THE COLLISION.

[1.1] Kandhor is not liable under Article III of the Liability Convention.
Kandhor is not liable under Article III of the Liability Convention because loss of control
over satellite does not qualify as Fault for attribution of Liability as losing control over its
satellite did not amount to an intentional act on Kandhor’s part. Kandhor has not breached
the obligations of space debris mitigation guidelines as the guidelines are not legally binding
and could not have been performed in such a short frame of time as it is.
[1.2] Kandhor cannot be held responsible as it did not breach any international
obligation.
Kandhor did not breach Debris Mitigation Guidelines and is not responsible for the same as
per Article 13 of the Articles on State Responsibility. Moreover, since the collision occurred
just within few hours of losing the control over the satellite, it was beyond the capacity of the
state to inform the other space agencies about the same in such a short span of time. Also, as
decided in Corfu channel case, the report that is not prepared by an independent third party
cannot be accepted as an evidence in the Internatioanl Court of Justice. Therefore, as there is
no other evidence to prove that the State of Kandhor subotaged the space mission of
Netherrealm, the State of Kandhor cannot be held liable for the same.

ISSUE 2: NETHERREALM BROKE THE CAUSAL LINK OF EVENTS THAT LED

TO THE COLLISION.
[2.1] As per Article III of the Liability Convention, the fault of a state can only be established
when there is a causal link between the international law violation in question and the
damage suffered. Guideline A.3 (5) and the Guidelines on Code of Conduct of the
Crewmembers for the Long-term Sustainability of Outer Space Activities impose the
responsibilty to establish a proper communication channel between the competent bodies
conducting the space related activities. These guidelines were clearly breached by
Netherrealm.
(add summary of 2.2)

[2.3] There was a malfunctioning in the Path Detector System installed in the spaceship
of Netherrealm.
Given the late initiation of alarm and there being no evidence of another cause of the failure
or lack of abnormal use of the Path Detector System, a prima facie case for Malfunction
Liability on Netherrealm’s part arises.
 ARGUMENTS ADVANCED

ISSUE 1: KANDHOR IS NOT LIABLE FOR THE COLLISION.

[1.1] KANDHOR IS NOT LIABLE UNDER ARTICLE III OF THE LIABILITY
CONVENTION.
[1.1.1] LOSS OF CONTROL OVER SATELLITE DOES NOT QUALIFY AS FAULT
FOR ATTRIBUTION OF LIABILITY.
1. Article III of Space Liability Convention, 1972 provides that when damage is caused to
a space object of one launching State by a space object of another launching State, the
latter shall be liable solely if the damage is due to its fault. 4 This implies that liability of
Kandhor can only be established by proving that Kandhor was at fault. Fault-based
liability requires an intentional act or omission. 5 Therefore, while a state may cause
damage, the state is only liable if it was their intentional act or omission that caused the
damage.
2. Outer Space Treaty6 specifically obliges States to act in accordance with international
law. Given that ‘Fault’ is not defined under the Liability Convention, the ‘object and
purpose’7 interpretation of the convention under the 1969 Vienna Convention on the
Law of Treaties (VCLT), can be applied.89 Since ‘Fault’ under International law, is
defined as a blameworthy psychological attitude of the author of an act or omission, 10 it
can be inferred that losing control over its satellite was clearly not intended by Kandhor
and thereby cannot amount to an intentional act or omission meaning there was no fault
on Kandhor’s part.
3. Therefore, Kandhor’s loss of control over its satellite does not qualify as fault for
attribution of liability.

4
Article III, Convention on International Liability for Damage Caused by Space Objects, Resolution 2777
(XXVI), (1972).
5
Scott Kerr, Liability for space debris collisions and the Kessler Syndrome, THE SPACE REVIEW (Monday,
December 11, 2017), https://www.thespacereview.com/article/3387/1.
6
Article III, Outer Space Treaty, Resolution 2222 (XXI), (1967).
7
Ibid., Art. 31(1) states that “A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
8
Joel A Dennerley, State Liability for Space Objects Collisions: The Proper Interpretation of ‘Fault’ for the
Purposes of International Space Law, EUROPEAN JOURNAL OF INTERNATIONAL LAW, VOLUME 29,
ISSUE 1 (08 May 2018), https://academic.oup.com/ejil/article/29/1/281/4993226.
9
Vienna Convention on the Law of Treaties (VCLT) 1969, 1155 UNTS 331.
10
Palmisano, supra note 57, para. 5.
1
 [1.1.2] KANDHOR HAS NOT BREACHED THE OBLIGATIONS OF SPACE
DEBRIS MITIGATION GUIDELINES.
4. Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer
Space provides in its Rationale 11 that the guidelines are not legally binding under
international law. Therefore, Kandhor cannot be said to have breached the Space Debris
Mitigation Guidelines as these guidelines are not legally binding upon it.
5. Furthermore, there are several approaches to de-orbiting, categorized as either active de-
orbiting or passive de-orbiting. Active de-orbiting warrants continuous operation
requiring the control system to be functioning properly. In the present case, Kandhor lost
control over its satellite. Therefore, it could not have carried out the measure of active
de-orbiting.
6. Passive de-orbiting requires no active control, relying only on natural perturbations and
forces to accomplish de-orbiting. The standard passive de-orbiting time required by a
satellite from an altitude within the LEO region takes months if not years. 12 In the given
case, Kandhor lost control over its satellite only few hours before the collision. Hence,
due to lack of sufficient time, Kandhor could not have de-orbited its satellite from the
lower space orbital.13
7. Therefore, Kandhor is not liable under Article III of the Liability Convention.

[1.2] KANDHOR CANNOT BE HELD RESPONSIBLE AS IT DID NOT

BREACH ANY INTERNATIONAL OBLIGATION.
8. There are various international laws that impose duty on every state to fulfil certain
duties for the betterment of the international community. The breach of such
International laws entails its International responsibility. 14 But in the given case,
Kandhor did not breach any such responsibility:

A) There is no violation of Debris Mitigation Guidelines:

9. Article 13 of the State Responsibility states the basic principle that, for responsibility to
exist, the breach must occur at a time when the State is bound by the obligation. 15 Debris

11
Rationale, Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space,
Resolution 62/217, (2007).
12
Grant Bonin and Jesse Hiemstra, The CanX-7 Drag Sail Demonstration Mission: Enabling Environmental
Stewardship for Nano and Micro-satellites, UTIAS SPACE FLIGHT LABORATORY SSC13-XI-9,
https://digitalcommons.usu.edu/cgi/viewcontent.cgi?article=2993&context=smallsat.
13
Moot, ¶ 6.
14
Responsibility of States for Internationally Wrongful Act, 2001, art. 1
15
Responsibility of States for Internationally Wrongful Act, 2001, art. 13
2
 Mitigation Guidelines are only suggestive in nature and do not bind the States absolutely.
16
Hence, there is no breach of international obligation bythe State of Kandhor.
10. Also, Article 23 of the State Responsibility states that the wrongfulness of an act of a State
which is not in conformity with an international obligation of that State is precluded if the
act is due to force majeure, that is the occurrence of an irresistible force or of an
unforeseen event, beyond the control of the State, making it materially impossible in the
circumstances to perform the obligation.17

11. In the given case, it was beyond the capacity of the state to de-orbit the defunct satellite,
since the control over the same was lost just few hours before the collision. Moreover, the
active removal of the same debris from outer space might have inevitably resulted in
further fragmentation. Therefore, the Space Agency of Kandhor could not have taken any
measure to avoid the creation of debris or collision with the other space objects.
Therefore, it did not breach any international obligation.

B) The State of Kandhor did not breach the obligation of Timely-coordination and
transmission of information.

12. According to Guideline B.1 (2) of the Long Term Sustainability of Outer Space Activities,
States and international intergovernmental organizations should establish appropriate
means to enable timely coordination to reduce the probability of and/or to facilitate
effective responses to orbital collisions.18 However, the transmission of such information is
a time-consuming process and due to the paucity of the same, it was not possible for the
State of Kandhor to inform the other international space agencies regarding the loss of
control over the satellite. Moreover, any space agency would attempt to regain the control
over its space object rather than uprightly declaring the object as space debris.

13. The time span between losing control over the satellite and the collision being very less,
there is no obligation on behalf of the state to inform the other international space agencies
immediately without attempting to stop its conversion into space debris. 19 Also, the ground
control management of Netherrealm had itself informed one of the astronauts about 65%
16
B. Sandeep Bhat, SPACE LAWS: THE EMERGING TRENDS, 2018
17
Responsibility of States for Internationally Wrongful Act, 2001, art. 23
18
Committee on the Peaceful Uses of Outer Space, Vienna, 20–29 June 2018, Guidelines for the Long-term
Sustainability of Outer Space Activities, Guideline B.1 (2)
19
IADC Guidelines
3
 chances of collision that existed but he neglected the warning and failed to inform his
counterpart of the same. Therefore, even when the space agency of Netherrealm had the
knowledge about a probable collision, they did not take appropriate measures to avoid the
same, thus discharging the responsibility of the Space Agency of Kandhor.

C) The State of Kandhor did not make any attempt to sabotage the mission of
Netherrealm deliberately.

14. In the given case, the State of Netherrealm does not come with clean hands in the
International Court of Justice.The “clean hands” doctrine has been defined as “an important
principle of international law that has to be taken into account whenever there is evidence
that an applicant State has not acted in good faith and that it has come to court with unclean
hands.”20 
15. Further, in the Corfu Channel decision, the Court emphatically set aside hearsay evidence on
the basis that it amounted to ‘allegations falling short of conclusive evidence’21

16. In the given case, the report which claims that the satellite launched by Kandhor seemed to
act like a controlled space object and had intentionally caused damage to the spaceship was
prepared by the company, i.e. Orion Arrow Ltd. itself, based in Netherrealm. 22 Hence, the
report can be presumed to be biased (as it was prepared by an interested party) to favour
Netherrealm and get compensation from Kandhor. However due to lack of material evidence
to prove this claim, Kandhor cannot be held responsible for the collision that occurred due to
no fault of its own.

17. Moreover, the state of Kandhor launched their satellite Amun- Ra six months before the
collision.23 They lost control over the same just few hours before its collision with the
spaceship of Neatherrealm due to some technical default. The mere fact that Netherrealm
and Kandhor are competitive regarding their space missions does not establish that the
satellite of Kandhor deliberately crashed into Netherrealm’s spaceship.

20
“The Doctrine of ‘Clean Hands’ and the Inadmissibility of Claims by Investors Breaching International
Human Rights Law”, in: Ursula Kriebaum (ed), Transnational Dispute Management Special Issue: Aligning
Human Rights and Investment Protection, TDM, 2013.
21
Dr. Peter Tomka: The Evidentiary Practice of the World Court, December 2015
22
Moot, ¶7
23
Moot, ¶6
4
 ISSUE 2: NETHERREALM BROKE THE CAUSAL LINK OF EVENTS THAT LED
TO THE COLLISION.
18. As per Article III of the Liability Convention, the fault of a state can only be established
when there is a causal link between the international law violation in question and the
damage suffered. Therefore, causal link has to be established by the state taking resort to
Article III of the Liability Convention.24 If there is a substantial intervening act committed
by the applicant state, which is the reason of the damage caused to the state, then it
precludes the liability of the respondent state.25
19. If it is proved that if not for the intervening act of the state that has suffered the damage, the
damages would not have been caused to it, then the accused State would not be held
liable under Article III of the Liability Convention. 26 In the given case, the State of
Netherrealm broke the causal link of events:

[2.1] THE CO-ASTRONAUT DID NOT HEED THE WARNING OF GROUND

CONTROL MANAGEMENT.
20. As per Guideline A.3 (5) for the Long-term Sustainability of Outer Space Activities, states
should ensure that appropriate communication and consultation mechanisms are in place
within and among the competent bodies that oversee or conduct space activities. 27
Communication within and among relevant regulatory bodies can promote regulations that
are consistent, predictable and transparent so as to ensure that regulatory outcomes are as
intended. 28

21. In this case, the communication between the ground control and the astronauts was
inefficient, since even when the ground control informed about the 65% chances of the
collision, the astronaut did not take measures consistent with the given information.
Moreover, as per the information provided by the ground control, it was fairly predictable
for the astronaut that there were high chances of collision. But even then, the astronaut
neglected the information and did not inform about the same to his co-astronaut.

24
B. Sandeep Bhat, SPACE LAWS: THE EMERGING TRENDS, 2018, p. 178
25
Howard A. Baker, Space Debris: Legal and Policy Implications, 1989, p. 25 (Netherlands: Springer)
26
Ibid.
27
Committee on the Peaceful Uses of Outer Space, Vienna, 20–29 June 2018, Guidelines for the Long-term
Sustainability of Outer Space Activities, Guideline A.3 (5)
28
Ibid.
5
22. Also, the information was received before the spaceship exited the earth’s gravitational force
and thus, if the communication would have been effective, manoeuvring at the
appropriate time could have saved the spaceship from the collision. The lack of
transparency in the transmission of the information is evident from the fact that the co-
astronaut was not given the required information in time. Thus, the guideline Guideline
A.3 (5) was clearly breached by the State of Netherrealm.

23. Moreover, the Guidelines on Code of Conduct of the Crewmembers 29 clearly define the
chain of command under which the relationship between the ISS Commander (on-orbit
management) and flight director (ground control management) has been explained. The
Flight Director is responsible for directing the mission and is in charge of directing real-
time ISS operations at all time.30 Thus, the ISS Commander is obliged to implement the
mission as directed by the Flight Director.31 But in the given case, the astronaut who was
handling the on-orbit management took the decision on his own discretion regardless of
the warning given by the flight director, thus rendering this act ultra-vires. Hence, by
superseding the authority of the flight director Netherrealm’s co-astronaut has acted
outside the scope of his authority.

24. Thus, the aforementioned intervening acts of the State of Netherrealm led to the collision.
This breaks the causal link between the events and precludes the liability of the State of
Kandhor under Article III of the Liability Convention.

[2.2] THE ASTRONAUT VIOLATED THE PRINCIPLE OF DUE DILIGENCE.

(add)
[2.3] THERE WAS A MALFUNCTIONING IN THE PATH DETECTOR SYSTEM
INSTALLED IN THE SPACESHIP OF NETHERREALM.
1. Malfunction liability was established in aviation law through Lindsay v. McDonnell
Douglas Aircraft Corp.32 wherein a plaintiff sued a manufacturer of an airplane after the
plane crashed alleging that a plane malfunction caused the crash.

29
Code of Conduct of Crewmembers Federal Register / Vol. 65, No. 246 / Thursday, December 21, 2000 /
Rules and Regulations
30
Committee on the Peaceful Uses of Outer Space, Vienna, 20–29 June 2018, Guidelines for the Long-term
Sustainability of Outer Space Activities,Guideline A.3 (5)
31
Ibid.
32
460 F.2d 631, 633 (8th Cir. 1972).
6
2. The U.S District Court explained that it is not incumbent upon the plaintiff to show that
the defendant installed a defective part, knowing it to be faulty as that would place an
undue burden over and beyond the principles of strict liability in tort. The court also stated
that in this type of product malfunction case, circumstantial evidence including the failure
of the airplane was sufficient evidence of a defect.33
3. A prima facie case of defectiveness can be made by proof of the fact of a malfunction,
failure, or occurrence of an accident in conjunction with other circumstantial evidence
such as a lack of an abnormal use of the product and the lack of a reasonable secondary
cause not attributable to defectiveness. 34 If a product fails, and there is no evidence of
another cause of the failure, then a prima facie case for malfunction liability exists under
this view. 35
4. This theory of liability without proof of a specific defect should be extended to space law
generally and the doctrine would also suit space debris.36
5. In the present case, by the time the Path Detector System (hereinafter called “PDS”) of
Netherealm’s spaceship initiated the alarm, no amount of manoeuvring could save
Netherealm’s spaceship as it had needed time to loose its exit velocity to manoeuvre in
another direction, failing which resulted in its collision with Kandhor’s satellite.
Furthermore, information regarding the chances of collision with an approaching
unidentified object was relayed by Netherealm’s Ground Control few minutes before the
the PDS.37
6. The fact that Netherrealm’s spaceship didn’t have sufficient time to manoeuvre in a
different direction implies that the PDS did not initiate an alarm soon enough for the
astronuats to succesfully implement a necessary plan of action. Moreover, since the
Ground Control of Netherealm informed the astronauts about the chances of its spaceship
colliding with an oncoming object earlier than the PDS, it can be inferred that such
information had not been unobtainable by the PDS during the time that the Ground
Control of Netherealm had detected it. Therefore, there was a failure in the PDS of
Netherealm’s spaceship.
7. In the given case, there was neither an abnormal use of Netherealm’s spaceship by its
astronauts nor a reasonable secondary cause attributable to the defectiveness of the
33
Id. at 640.
34
Christopher H. Hall, Annotation, Strict Products Liability: Product Malfunction or Occurrence ofAccident
as Evidence of Defect, 65 A.L.R. 4th 346, 354 (1988).
35
Luke Punnakanta, Space Torts: Applying Nuisance and Negligence to Orbital Debris, 86 S. CAL. L. REV.
163 (2012).
36
Bosco, supra note 130, at 47, 51.
37
Moot, ¶ 5.
7
 spaceship’s PDS. Therefore, since there is no evidence of another cause of the failure of
the PDS, a prima facie case for malfunction liability on Netherrealm’s part arises.
8. Therefore, in light of the views mentioned above, and its application onto the facts of the
given case, it can be concluded that there was a malfunctioning in the Path Detector
System installed in the spaceship of Netherrealm.

8
 PRAYER

For the foregoing reasons, the Government of the State of Kandhor, Respondent, respectfully

requests the Court to adjust and declare that:

1. Rastalia acted in conformity with international law by refusing to return Couleur and

Commander Borsch to Banché and refusing the earlier return of Ms. Paula to Banché,

2. Rastalia is not liable under international law for the damage to Couleur,

3. Banché is liable for the costs of recovery of Couleur, the rescue and medical expenses for

Commander Borsch, the costs of evacuation of Lake Taipo, and the deaths of both Mr.

Thomas and Mr. Barton.

Respectfully submitted on behalf of the Respondent,

AGENTS FOR THE RESPONDENT.

xxviii