OST, Liability Principles & Launch From International Domain: Resolving a New Twist in the Tail
- Paper number
IAC-07-E6.2.02
- Author
Mr. Abhishek Dubey, Hidayatullah National Law University, India
- Coauthor
Ms. Loree Sonchhatra, Hidayatullah National Law University, India
- Year
2007
- Abstract
The dawn of the 40th Anniversary of the Outer Space Treaty (OST) realizes that the quandary with space is that technology changes so rapidly - the law can barely keep up. According to OST, the liability for damage by the spacecraft or its component parts rests upon each State that launches or procures the launching and from whose territory or facility an object is launched. Today, in the case of a private launch from an international domain, the launch is but procured by a private entity and the territory used is not that of any State but is situated at an international location thereby complicating the determination of the launching state. Consequently, this has presented insuperable obstacles in resting liability with a particular state. However, this attempt to defy the liability principles can be surmounted if, avoiding the literal approach, Art. VI and VII be read by employing the principle of integration of treaty interpretation which postulates that the meaning of the text must emerge in the context of the treaty as a whole and in the light of its object and purposes. Now, Art. VI of the OST intentionally imposes a strict liability regime, rather than subjective responsibility, on the launching states for the reason that the treaty prohibits any space activity by a non-governmental entity unless it is authorized and continually supervised by that state. Indeed, prior state ‘authorization’ is a sine qua non if the launch of the object is to proceed and this process places the State in a position to ensure to its subjective satisfaction the safety of the launch process. By licensing, the state proclaims the space activity to be impregnable and the spacecraft to be fit for human flight. Nevertheless, damage is inflicted, the paper argues, State under whose license the activity advanced shall be held liable. In response to the boom in commercial satellite launch market, there is a sizable rise in the number of commercial launch vehicles, and potentially, new privately operated spaceports from which to process and launch them. Companies, enticed by commercial competition, tend to escape from any real state control by choosing a nationality of convenience for the company, a flag of convenience for the ship (in the case of a sea launch) and connecting links with advantageous ‘launching’, ‘appropriate’ and ‘registration’ states. Security and control will be at stake if States without any space capacity are chosen as unique launching states. In view of the above, there may arise concrete factual situations desiring one or more specific amendments to the Space Treaties. Meanwhile, it is argued, the efforts of States parties should be directed to enact apposite municipal laws to implement the current Space Treaties, particularly Articles VI and VII of the OST.
- Abstract document
- Manuscript document
IAC-07-E6.2.02.pdf (🔒 authorized access only).
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