The relation between the two legal notions of Responsibility and Liability in Space Law has never been dealt with in a comprehensive fashion. It was only in 1957 that Sputnik I succeeded in being the first object launched from this planet to reach outer space. Yet today the launching of objects into space, although not quite yet, promises soon to be almost a daily occurrence. Responsibility and liability for launch activities consequently deserve close attention. In examining the problem of international responsibility and liability for launch activities, it is necessary to clarify the meaning of these different terms used, namely, international responsibility, international liability, and launch activities.
In situations where states incur similar legal obligations in multiple treaties, the possibility of overlap creates the need to establish rules of inter-textual interpretation in order to clarify the overall obligations undertaken as well as to resolve potential divergences and/or conflicts between the treaties.
Responsibility and Liability are two important terms in international law pointing to two fundamental principles; space law does not differ in this respect. Thus, Article VI of the Outer Space Treaty of 1967 speaks of the international responsibility of states for national activities in space to be in conformity with the treaty, and another article, Article VII of the same treaty, of the liability of states for damage towards other states or their nationals or property. Let’s have a closer look on Responsibility and Liability in Space Law.
Responsibility in Space Law
The laws of state responsibility are the principles governing when and how a state (in international law, a sovereign state, sovereign country, or simply state, is a nonphysical juridical entity that is represented by one centralised government that has sovereignty over a geographic area) is held responsible for a breach of an international obligation (a course of action that someone is required to take, whether legal or moral). Responsibility is defined by the Oxford English Dictionary as “The state or fact of having a duty to deal with something or of having control over someone”.
According to Paul Reuter, “responsibility is at the heart of international law, it constitutes an essential part of what may be considered the Constitution of the international community”. Responsibility interacts with the notion of sovereignty, and affects its definition, while, reciprocally, the omnipresence of sovereignty in international relations inevitably influences the conception of international responsibility. At the same time, responsibility has profoundly evolved together with international law itself: responsibility is the corollary of international law, the best proof of its existence and the most credible measure of its effectiveness. Responsibility has become diversified and more complex as a result of the developments which have affected international society.
Article VI 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 (entered into force on October 10, 1967) enounces that “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization”.
This founding article explains the fact that Outer Space States must bear international responsibility for their national activities in outer space; national space activities are framed and depend on states. Whether such activities are carried on by governmental agencies (like CNES in France, or ASI in Italy) or by non-governmental entities (like SpaceX in the United States of America or i-Space in China), States bear international responsibility for their national activities in outer space. States are, according to Article VI of the 1967 OST, held responsible for any launching activity taking place from the geographical territory over which they have jurisdiction.
When looking at the Travaux Préparatoires, it is clear that the founding Outer Space States wished to have states as major actors in outer space; and this is maybe because outer space is only possible with international cooperation. Indeed, due to the possible damages implied by that type of activity, negotiating states have understood that they should assume direct responsibility. States, as long as they have jurisdiction over an activity, are the only entity which can bear international responsibility. Jurisdiction refers to the power of a state to affect persons, property, and circumstances within its territory. It may be exercised through legislative, executive, or judicial actions. International law particularly addresses questions of criminal law and essentially leaves civil jurisdiction to national control.
The question we may ask ourselves is the following: how to choose the responsible state in a situation where more than one state has jurisdiction? This is called concurrent jurisdiction and is of particular importance in Space Law. Usually, concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a specific case. This situation leads to forum shopping, as parties will try to have their civil or criminal case heard in the court that they perceive will be most favourable to them. One of the best example of concurrent jurisdiction in Space Law is the case of Sea Launch, a multinational spacecraft launch service that used a mobile maritime launch platform for equatorial launches of commercial payloads.
What about when the competence is transferred to a supranational organisation, like the United Nations, or the European Union? There is a gap in international space law relating to responsibility of supranational entities. Let’s mention that International Space Law is the only regime of responsibility which explicitly imposes an absolute obligation to reparation in absence of any wrongful conduct. That is why “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities”.
International state responsibility, in space law as much as elsewhere, therefore arises in case of activities being in violation of relevant legal obligations, those being primary obligations of (space) law. It is thus dependent, to begin with, on the first criterion, that of an internationally wrongful act. Damage (as much as subjective fault) is not a criterion, although here as much as elsewhere damage is not excluded either.
Liability in Space Law
Liability is, in regard of Space Law (and in contrast to general international law), the most elaborated of the two Responsibility and Liability principles, as a special Liability Convention was devoted to develop the provisions of Article VII of the Outer Space Treaty. Article VII, of course, itself provides the basis. As to the necessary ingredients for space liability, this leads us to the same conclusion as in respect of international liability: damage is the only, indispensable criterion, nor breach of an international obligation (objective fault), nor subjective fault in the sense of intent or negligence are necessary to invoke liability (in respect of damage on the Earth or to an aircraft to begin with).
Article VII of the Magna Carta of Space Law (the 1967 OST) states that “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies”. This article, which later gave birth to the 1972 Liability Convention, talks about liability and differentiates it from the notion of responsibility.
Liability is defined by the Oxford English Dictionary as “The state of being legally responsible for something”. Whereas responsibility concerns states having jurisdiction over a space activity, liability is binding on the Launching State. Liability concerns the launches whereas responsibility is larger, it concerns any activity taking place in an outer space environment. The term “launching State” means, according to Article I of the 1972 Liability Convention, “A State which launches or procures the launching of a space object” + “A State from whose territory or facility a space object is launched”.
The term liability, just as the term responsibility, is an age-old term; in contrast however to (state) responsibility, liability is derived for a large part from domestic legal orders. Consequently, international liability is closely related to damage. Damage however, is not an indispensable criterion for responsibility. An internationally wrongful act namely can lead to damage or consist itself of the causing of damage; damage is most often an important element in defining existence of an internationally wrongful act.
Space Law is really only a lex specialis when compared to the much older body of general international law, being derived from it as far as practical with an eye to the peculiarities of space as a realm of law of its own. It is a general principle of international law that a breach of an international obligation entails State responsibility and responsibility entails duty to make reparation. The key elements of State responsibility are the breach of obligation of a State by a person or body whose conduct is attributable to the State.
In Space Law, the questions of responsibility and liability are addressed in two treaties: the Outer Space Treaty and the Liability Convention. The concepts of liability and responsibility in space law are deviations from those concepts under general international law. The deviations were brought in place in the 1960s and 1970s, when space law was formulated. At that time, space activities were at their early stage, were imminently risky, potent of causing damage to millions of lives and hence, a need was felt to ensure relief was met to the victim. Hence, liability was fixed on the launching State and the definition of launching State was made broad to ensure that the victim was provided relief. This is opposed to the general international law under which responsibility and liability is fixed on the State to which international wrongful act is attributable.
International State responsibility in outer space for private space activities arises the moment a breach of an international obligation is committed, unlike in general international law, where State’s responsibility for non-governmental entities arises when the State fails in its duty to prevent or repress such breach. Space activities still continue to be risky affairs. However, unarguably, space technology has become extraordinarily sophisticated and safer since 1945, when mankind started exploring the outer space. This is what can be said about Responsibility and Liability in Space Law.