Reflections on the Concepts of ‘Liability’ and ‘Responsibility’ in a Privatised Atmosphere

Paper number

IAC-10,E7,1,16,x6213

Author

Ms. Joyeeta Chatterjee, Institute of Air and Space Law, McGill University, Canada

Year

2010

Abstract

The 1967 Outer Space Treaty provides for liability of the state for any of its national activities in outer space whether such activities are performed by itself or by any other non-governmental agency. Article VI intentionally imposes a strict liability regime, rather than subjective responsibility, on the launching states since the treaty prohibits any space activity by a non-governmental entity unless it is authorised and continually supervised by that state. Further Articles II and III of the 1972 Liability Convention stipulate absolute liability and fault liability respectively to states launching space objects which subsequently cause any damage to any other state or juridical entity.

This paper would focus on the requirement for a revised notion and distinct demarcation between the traditional concepts of ‘responsibility’ and ‘liability’ in order to effectively redress the legally entangled issues arising out of the rapid developments in the commercialised and privatised sector of space activities.

This paper would primarily assert the exoneration of States from bearing national liability for commercial acts done either by non-governmental entities or private agencies which cannot be brought under the ambit of ‘national activities’ thereby necessitating an attempt to explicitly confine the contours of the term ‘national activities’.  The most effective interpretation of ‘national activities’ may be made in light of the doctrines of jurisdiction and effective control. The opportunity to exercise legal control is encompassed in the concept of jurisdiction and more precisely in the jurisaction as opposed to jurisfaction of states.

The liability provisions are applicable both for launchings by states and by non governmental institutions because invariably at least one of the four criteria for the launching state will be fulfilled in the case of launchings by private entities. This paper rebuts this reasoning keeping in mind situations where a private company may launch a payload without the active involvement of any state, such as the case of a launch from a private launch facility located outside the territory of a State where a State neither procures nor launches a space object. Further, issues such as change of ownership of satellites in orbit and liability arising therefrom will be addressed.

I would hence conclude that in the light of recent State practice, the concepts of ‘liability’ and ‘responsibility’ as enshrined in space law in the form of treaty provisions or customary norms of international law require reassessment and amendment to cater to the contemporary scenario.

Abstract document

IAC-10,E7,1,16,x6213.brief.pdf

Manuscript document

IAC-10,E7,1,16,x6213.pdf (🔒 authorized access only).

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