(1) |
Settlement of Claim between Canada and the Union
of Soviet Socialist Republics for Damage Caused by "Cosmos 954" (Released
on April 2, 1981) |
The Secretary of State for External Affairs, Dr. Mark MacGuigan, announced
today the signature of the formal Protocol settling Canada's claim for damages
caused by the disintegration over Canada of the Soviet satellite "Cosmos
954". The Protocol was signed in Moscow by Canada's Ambassador to the USSR,
Geoffrey Pearson and, on behalf of the USSR, by N.S. Ryzhov, Deputy Minister,
Ministry of Foreign Affairs. The text of the Protocol is attached.
Protocol between the Government of Canada and the Government of the Union
of Soviet Socialist Republics Done on April 2, 1981
With Statement of the Canadian Claim
The Government of Canada and Government of the Union of Soviet Socialist
Republics, have agreed as follows:
Article I
The Government of the Union of Soviet Socialist Republics shall pay to the
Government of Canada the sum of three million Canadian dollars (C$ 3,000,000.00)
in full and final settlement of all matters connected with the disintegration
of the Soviet satellite Cosmos 954 in January 1978.
Article II
The Government of Canada shall accept the payment of the sum of three million
Canadian dollars (C$ 3,000,000.00) in full and final settlement of all those
matters referred to in Article I hereof, including the claim advanced by
Canada in this respect.
Article III
This Protocol shall enter into force on the date of signature. In witness
whereof the undersigned, duly authorized by their respective Governments,
have signed this Protocol. Done in duplicate at Moscow this second day of
April 1981, in the English, French and Russian languages, all texts being
equally authentic. For the Government of Canada For the Government of the
Union of Soviet Socialist Republics
STATEMENT OF CLAIM
Introduction
1. |
This Statement sets forth Canada's claim for compensation for damage
the result of the intrusion into Canadian air space of a Soviet space
object, the Cosmos 954 satellite, and the deposit on Canadian territory
of hazardous radioactive debris from the satellite. The claim is presented
pursuant to the 1972 Convention on International Liability for Damage
caused by Space Objects and the international practice of states.
The Statement outlines the facts giving rise to the claim, the legal
principles applicable to the claim, the compensation claimed and certain
reservations entered by Canada. |
The Facts
2. |
The Soviet space object, the Cosmos 954 satellite, hereinafter also
referred to as the satellite, was placed in orbit by the Union of
Soviet Socialist Republics on September 18, 1977. The Secretary-General
of the United Nations was officially informed of the launching, as
reported in United Nations document No. A/AC.105/INF.368 of November
22, 1977. According to the Note of March 21, 1978 of the Embassy of
the Union of Soviet Socialist Republics in Ottawa, the satellite carried
on board a "... nuclear reactor working on uranium enriched with isotope
of uranium-235". On January 24, 1978, the satellite entered the earth's
atmosphere intruding into Canadian air space at about 11:53 A.M. Greenwich
Mean Time to the north of the Queen Charlotte Islands on the west
coast of Canada. On re-entry and disintegration, debris from the satellite
was deposited on Canadian territory, including portions of the Northwest
Territories, Alberta and Saskatchewan. |
3. |
Within minutes of the re-entry and the intrusion of the satellite
into Canadian air space the Government of the United States of America
made an offer of technical and materiel assistance to assist Canadian
emergency operations. This offer of assistance was accepted immediately
by the Government of Canada. |
4. |
In the course of the day January 24, 1978, an official of the Department
of External Affairs expressed to the Ambassador of the Union of Soviet
Socialist Republics in Ottawa the surprise of the Government of Canada
that the Government of the Union of Soviet Socialist Republics had
failed to give Canada notice of the possible re-entry of the satellite
into the earth's atmosphere in the region of Canada and subsequently,
of the imminent re-entry of the satellite. The Canadian official put
questions to the Ambassador concerning the satellite and, noting information
as to the presence of a nuclear reactor on board the satellite, requested
that precise responses be provided urgently. The questions posed on
that occasion were reiterated on January 27, 1978 and are recorded
in the Department of External Affairs Aide-Memoire of February 8,
1978 presented to the Embassy. |
5. |
Later on January 24, 1978, the Ambassador of the Union of Soviet
Socialist Republics advised an official of the Department of External
Affairs that the satellite had been expected to enter the dense layers
of the atmosphere on January 24, 1978 and, in case it did not burn
out completely in the atmosphere, the possibility that some of its
parts would fall in the area of the Aleutian Islands was not excluded.
The Ambassador asserted that there should not be any sizeable hazard
and that in places of impact there could only be insignificant local
pollution requiring very limited measures of disactivation. He also
stated that the construction of the nuclear reactor on board the satellite
envisaged its complete destruction on re-entry of the satellite into
the dense layers of the atmosphere. On that occasion, the Ambassador
expressed his Government's readiness to render urgent assistance by
sending to Canada a group of specialists to ameliorate the possible
consequences and evacuate remnants of the satellite. Canadian officials
replied that their urgent need was for immediate and complete answers
to the questions posed earlier on January 24, 1978. |
6. |
In the Note of March 21, 1978, the Embassy informed the Department
of External Affairs that the active zone of the nuclear reactor on
board the satellite "... was a set of heat-emitting elements with
a berillium reflector" and that "The reactor's design provided for
destruction of the reflector at the entry into dense layers of the
atmosphere to be followed by the total destruction of the reactor's
active zone". |
7. |
The Government of the Union of Soviet Socialist Republics failed
to provide timely and complete replies to the questions posed by Canada
on January 24, 1978 despite the reiteration of the request for information
on several occasions, in particular in the Department of External
Affairs' Aide-Memoire of February 8, 1978, in its Note of February
28, 1978 to the Embassy and in its Note of April 13, 1978 to the Embassy.
The Government of the Union of Soviet Socialist Republics ultimately
provided some information in the Notes of the Embassy dated March
21, 1978 and May 31, 1978. This information, particularly that in
the latter Note, contributed to the Canadian evaluation of the required
course of action. |
8. |
Upon the intrusion of the satellite into Canadian air space and
with the apprehension of the deposit of hazardous radioactive debris
from the satellite on Canadian territory, the Canadian Armed Forces
and the Atomic Energy Control Board of Canada undertook operations
directed at locating, recovering, removing and testing the debris
and cleaning up the affected areas. The purpose of these operations
was to identify the nature and extent of the damage caused by the
debris, to limit the existing damage and to minimize the risk of further
damage and to restore to the extent possible the affected areas to
the condition that would have existed if the intrusion of the satellite
and the deposit of the debris had not occurred. The operations took
place in two phases: Phase I from January 24, 1978 to April 20, 1978
and Phase II from April 21, 1978 to October 15, 1978. The total cost
incurred by the various Canadian Departments and Agencies involved
in Phase I of the operations was $ 12,048,239.11 of which $ 4,414,348.86
are included in Canada's claim. The total cost incurred during Phase
II of the operations was $ 1,921,904.55 of which $ 1,626,825.84 are
included in Canada's claim. In sum, Canada claims from the Union of
Soviet Socialist Republics payment in the amount of $ 6,041,174.70. |
9. |
During the operations described in paragraph 8, debris from the
satellite was found in areas of the Northwest Territories and the
Provinces of Alberta and Saskatchewan. Lists describing the location
of the debris are set forth in annexes to the Department of External
Affairs Notes dated February 8, 1978, March 3, 1978 and December 18,
1978, to the Embassy of the Union of Soviet Socialist Republics. Inscriptions
in the Cyrillic alphabet can be distinguished on one of the fragments
recovered. |
10. |
The Canadian authorities determined that all but two of the fragments
recovered were radioactive. Some fragments located proved to be of
lethal radioactivity. It was necessary for the debris to be handled
with great care as it is well established that radioactive material
can have serious physiological effects and in some cases can be fatal.
The debris recovered was sent to the Canadian Government's Whiteshell
Nuclear Research Establishment at Pinawa, Manitoba. There tests were
carried out on the debris, the results of which provided valuable
information that was of assistance with regard to the operations and
confirmed that highly radioactive and dangerous debris from the satellite
had been deposited on Canadian territory. |
11. |
The Government of Canada informed the Secretary-General of the United
Nations of the discovery of debris from the satellite as is indicated
in United Nations documents A/AC.105/214 and 214/Corr.1 of February
8, 1978; A/AC.105/217 of March 6, 1978 and A/AC.105/236 of December
22, 1978. |
12. |
In addition to general admissions as to the origin of the Cosmos
954 satellite, the Government of the Union of Soviet Socialist Republics
confirmed the Canadian conclusion as to the origin and identity of
the recovered debris by admissions contained in the statement made
on February 14, 1978 in the Scientific and Technical Subcommittee
of the Committee on the Peaceful Uses of Outer Space by Academician
Fedorov, a representative of the Union of Soviet Socialist Republics.
In addition, the Note from the Embassy of the Union of Soviet Socialist
Republics in Ottawa dated May 31, 1978 includes admissions to the
effect that debris found in the Northwest Territories of Canada originated
from the satellite. |
13. |
It is thus beyond doubt on the basis of the operations described
above and on the basis of admissions by representatives of the Union
of Soviet Socialist Republics that the debris found in the areas covered
by the operations originated from the Soviet space object identified
as the Cosmos 954 satellite. |
The Law
14. |
Canada's claim is based jointly and separately on (a) the relevant
international agreements and in particular the 1972 Convention on
International Liability for Damage caused by Space Objects, to which
both Canada and the Union of Soviet Socialist Republics are parties,
and (b) general principles of international law. |
(a) International Agreements
15. |
Under Article II of the Convention on International Liability for
Damage caused by Space Objects, hereinafter also referred to as the
Convention, "A launching State shall be absolutely liable to pay compensation
for damage caused by its space object on the surface of the earth
..." The Union of Soviet Socialist Republics, as the launching State
of the Cosmos 954 satellite, has an absolute liability to pay compensation
to Canada for the damage caused by this satellite. The deposit of
hazardous radioactive debris from the satellite throughout a large
area of Canadian territory, and the presence of that debris in the
environment rendering part of Canada's territory unfit for use, constituted
"damage to property" within the meaning of the Convention. |
16. |
The intrusion into Canadian air space of a satellite carrying on
board a nuclear reactor and the break-up of the satellite over Canadian
territory created a clear and immediate apprehension of damage, including
nuclear damage, to persons and property in Canada. The Government
of the Union of Soviet Socialist Republics failed to give the Government
of Canada prior notification of the imminent re-entry of the nuclear
powered satellite and failed to provide timely and complete answers
to the Canadian questions of January 24, 1978 concerning the satellite.
It thus failed to minimize the deleterious results of the intrusion
of the satellite into Canadian air space. |
17. |
Under 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. Thus, with respect
to the debris, it was necessary for Canada to undertake without delay
operations of search, recovery, removal, testing and clean-up. These
operations were also carried out in order to comply with the requirements
of the domestic law of Canada. Moreover, Article VI of the Convention
imposes on the claimant State a duty to observe reasonable standards
of care with respect to damage caused by a space object. |
18. |
The operations described in paragraph 8 above would not have been
necessary and would not have been undertaken had it not been for the
damage caused by the hazardous radioactive debris from the Cosmos
954 satellite on Canadian territory and the reasonable apprehension
of further damage in view of the nature of nuclear contamination.
As a result of these operations, the areas affected have been restored,
to the extent possible, to the condition which would have existed
if the intrusion of the satellite and the deposit of the debris had
not occurred. The Departments and Agencies of the Government of Canada
involved in these operations incurred, as a result, considerable expense,
particularly with regard to the procurement and use of services and
equipment, the transportation of personnel and equipment and the establishment
and operation of the necessary infrastructure. The costs included
by Canada in this claim were incurred solely as a consequence of the
intrusion of the satellite into Canadian air space and the deposit
on Canadian territory of hazardous radioactive debris from the satellite. |
19. |
In respect of compensation for damage caused by space objects, the
Convention provides for "... such reparation in respect of the damage
as will restore ... [the claimant] to the condition which would have
existed if the damage had not occurred" (Article XII). In accordance
with its Preamble, the Convention seeks to ensure "... the prompt
payment ... [under its terms] of a full and equitable measure of compensation
to victims of such damage" (Fourth preambular paragraph). Canada's
claim includes only those costs which were incurred in order to restore
Canada to the condition which would have existed if the damage inflicted
by the Cosmos 954 satellite had not occurred. The Convention also
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 ..." (Article XII). In calculating the compensation claimed,
Canada has applied the relevant criteria established by general principles
of international law and has limited the costs included in its claim
to those costs that are reasonable, proximately caused by the intrusion
of the satellite and deposit of debris and capable of being calculated
with a reasonable degree of certainty. |
20. |
The liability of the Union of Soviet Socialist Republics for damage
caused by the satellite is also founded in Article VII 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,
done in 1967, and to which both Canada and the Union of Soviet Socialist
Republics are parties. This liability places an obligation on the
Union of Soviet Socialist Republics to compensate Canada in accordance
with international law for the consequences of the intrusion of the
satellite into Canadian air space and the deposit on Canadian territory
of hazardous radioactive debris from the satellite. |
(b) General Principles of International Law
21. |
The intrusion of the Cosmos 954 satellite into Canada's air space
and the deposit on Canadian territory of hazardous radioactive debris
from the satellite constitutes a violation of Canada's sovereignty.
This violation is established by the mere fact of the trespass of
the satellite, 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. International precedents
recognize that a violation of sovereignty gives rise to an obligation
to pay compensation. |
22. |
The standard of absolute liability for space activities, in particular
activities involving the use of nuclear energy, is considered to have
become a general principle of international law. A large number of
states, including Canada and the Union of Soviet Socialist Republics,
have adhered to this principle as contained in the 1972 Convention
on International Liability for Damage caused by Space Objects. The
principle of absolute liability applies to fields of activities having
in common a high degree of risk. It is repeated in numerous international
agreements and is one of "the general principles of law recognized
by civilized nations" (Article 38 of the Statute of The International
Court of Justice). Accordingly, this principle has been accepted as
a general principle of international law. |
23. |
In calculating the compensation claimed, Canada has applied the
relevant criteria established by general principles of international
law according to which fair compensation is to be paid, by including
in its claim only those costs that are reasonable, proximately caused
by the intrusion of the satellite and deposit of debris and capable
of being calculated with a reasonable degree of certainty. |
Compensation Claimed
24. |
On the basis of the facts asserted and the legal principles referred
to herein, the Government of Canada claims payment from the Government
of the Union of Soviet Socialist Republics of the sum of $ 6,041,174.70.
Reservations |
25. |
(a) |
The Government of Canada reserves its right to present additional
claims for compensation to the Government of the Union of Soviet
Socialist Republics in respect of damage not yet identified
or determined or damage which may occur in the future as a result
of the intrusion of the Cosmos 954 satellite into Canada's air
space and the deposit of hazardous radioactive debris from the
satellite on Canadian territory; |
(b) |
The Government of Canada reserves its right to claim from
the Government of the Union of Soviet Socialist Republics all
costs that Canada may be obliged to incur in the event of the
establishment of a Claims Commission under the provisions of
the 1972 Convention on International Liability for Damage caused
by Space Objects and the presentation by Canada of its claim
to such a Claims Commission; and |
(c) |
The Government of Canada reserves its right to claim from
the Government of the Union of Soviet Socialist Republics payment
of interest at an appropriate rate on the amount of compensation
declared payable by a Claims Commission, such interest to accrue
from the date of the decision or award of the Claims Commission. |
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