The 1972 Liability Convention

The 1972 Liability Convention, the result of ten years work by the Legal Sub-Committee of the Ad Hoc Committee on the Peaceful Uses of Outer Space (COPUOS), was considered and negotiated by the Legal subcommittee from 1963 to 1972. The subject of liability for damages from space vehicle accidents was first addressed by COPUOS in 1959 and was immediately given priority status. In June 1962, the United States of America submitted the first draft proposal on liability. Agreement was reached in the General Assembly in 1971, with Resolution 2777 (XXVI), and the Convention entered into force in September 1972.

The ten year delay in finalising the 1972 Liability Convention was caused by the lack of consensus among the Legal Sub-Committee members on such issues as the law applicable to the measurement of damages, the status of international organisations with respect to the Convention, dispute resolution procedures, limitation of liability, and nuclear damage.

Elaborating on Article VII of the Outer Space Treaty, the 1972 Liability Convention provides that a launching State shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft, and liable for damage due to its faults in space. The Convention also provides for procedures for the settlement of claims for damages.

In 1978, the crash of the nuclear-powered Soviet satellite Kosmos 954 in Canadian territory led to the only claim filed under the 1972 Liability Convention. The Kosmos 954 incident provided the first case where a claim was made by one sovereign state against another based on the 1972 Liability Convention. The total costs incurred by Canada in Operation Morning Light were close to fourteen million Canadian dollars. Approximately one year after the incident, Canada presented a claim against the Soviet Union for just over six million Canadian dollars as compensation for damage allegedly caused by the fall of the Soviet satellite Kosmos 954.

Articles VI and VII of the Outer Space Treaty

Articles VI and VII of the 1967 OST pertain to international liability for damages and are the basis upon which the 1972 Liability Convention was developed.

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”.

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 (entered into force on October 10, 1967), 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”.

The 1972 Liability Convention

One (and maybe the most important) of the goals of the Convention is to provide a measure of damages for cases involving injury or damage caused by space objects. Re-entry of space object fragments into the Earth’s atmosphere has been rare, relative to the number of space objects presently circling the Earth. There is, however, a very real possibility that future space accidents may result in injury to innocent persons, natural or juridical.

The Legal Sub-Committee imposed liability on launching states with the intent of inducing those engaged in space activities to take into account the rights of those who might be harmed by such activities. While the advancement of space exploration is important, it must not be pursued at the expense of remediless victims of damage. The members also intended to draft effective rules and procedures to facilitate the prompt payment of compensation to victims. As a result, the 1972 Liability Convention is a victim-oriented agreement designed to balance the importance of the advancement of space exploration against the necessity of protecting innocent victims.

Articles I, II, and XII of the 1972 Liability Convention outline the process of defining and determining damages in space object accidents. Article I defines the term “damage” for the purpose of the Convention and limits that term to physical, psychological, or property damage and loss of life.

Article II provides for payment of compensation for “damage”, presumably as defined in article I. Under Article XII, compensation for damage is to be “determined in accordance with international law and the principles of justice and equity”, so that the claimant will be restored to the condition that would have existed had no damage occurred. The Legal Sub-Committee’s treatment of the measures of compensation in Article XII consisted largely of a debate over whether the measure should be determined by reference to general international law or to the law of a particular state.

The Legal Sub-Committee finally adopted a compromise proposal that compensation should be determined in accordance with international law and the principles of justice and equity. Although the proposal was not greeted with enthusiasm, it eventually won the grudging support of the Legal Sub-Committee.

Articles XIV through XX establish and set out the guidelines for a Claims Commission, which handles disputes between nations unable to resolve such disputes through diplomatic procedures.

The Convention on International Liability for Damage Caused by Space Objects (entered into force on September 1, 1972), or 1972 Liability Convention, states the following:

The States Parties to this Convention,

Recognizing the common interest of all mankind in furthering the exploration and use of outer space for peaceful purposes,

Recalling the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies,

Taking into consideration that, notwithstanding the precautionary measures to be taken by States and international intergovernmental organizations involved in the launching of space objects, damage may on occasion be caused by such objects,

Recognizing the need to elaborate effective international rules and procedures concerning liability for damage caused by space objects and to ensure, in particular, the prompt payment under the terms of this Convention of a full and equitable measure of compensation to victims of such damage,

Believing that the establishment of such rules and procedures will contribute to the strengthening of international cooperation in the field of the exploration and use of outer space for peaceful purposes,

Have agreed on the following:

Article I

For the purposes of this Convention:

(a) The term “damage” means loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations;

(b) The term “launching” includes attempted launching;

(c) The term “launching State” means: (i) A State which launches or procures the launching of a space object; (ii) A State from whose territory or facility a space object is launched;

(d) The term “space object” includes component parts of a space object as well as its launch vehicle and parts thereof.

Article II

A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight.

Article III

In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.

Article IV

1. In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, and of damage thereby being caused to a third State or to its natural or juridical persons, the first two States shall be jointly and severally liable to the third State, to the extent indicated by the following:

(a) If the damage has been caused to the third State on the surface of the Earth or to aircraft in flight, their liability to the third State shall be absolute;

(b) If the damage has been caused to a space object of the third State or to persons or property on board that space object elsewhere than on the surface of the Earth, their liability to the third State shall be based on the fault of either of the first two States or on the fault of persons for whom either is responsible.

2. In all cases of joint and several liability referred to in paragraph 1 of this article, the burden of compensation for the damage shall be apportioned between the first two States in accordance with the extent to which they were at fault; if the extent of the fault of each of these States cannot be established, the burden of compensation shall be apportioned equally between them. Such apportionment shall be without prejudice to the right of the third State to seek the entire compensation due under this Convention from any or all of the launching States which are jointly and severally liable.

Article V

1. Whenever two or more States jointly launch a space object, they shall be jointly and severally liable for any damage caused.

2. A launching State which has paid compensation for damage shall have the right to present a claim for indemnification to other participants in the joint launching. The participants in a joint launching may conclude agreements regarding the apportioning among themselves of the financial obligation in respect of which they are jointly and severally liable. Such agreements shall be without prejudice to the right of a State sustaining damage to seek the entire compensation due under this Convention from any or all of the launching States which are jointly and severally liable.

3. A State from whose territory or facility a space object is launched shall be regarded as a participant in a joint launching.

Article VI

1. Subject to the provisions of paragraph 2 of this article, exoneration from absolute liability shall be granted to the extent that a launching State establishes that the damage has resulted either wholly or partially from gross negligence or from an act or omission done with intent to cause damage on the part of a claimant State or of natural or juridical persons it represents.

2. No exoneration whatever shall be granted in cases where the damage has resulted from activities conducted by a launching State which are not in conformity with international law including, in particular, the Charter of the United Nations and the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.

Article VII

The provisions of this Convention shall not apply to damage caused by a space object of a launching State to:

(a) Nationals of that launching State;

(b) Foreign nationals during such time as they are participating in the operation of that space object from the time of its launching or at any stage thereafter until its descent, or during such time as they are in the immediate vicinity of a planned launching or recovery area as the result of an invitation by that launching State.

Article VIII

1. A State which suffers damage, or whose natural or juridical persons suffer damage, may present to a launching State a claim for compensation for such damage.

2. If the State of nationality has not presented a claim, another State may, in respect of damage sustained in its territory by any natural or juridical person, present a claim to a launching State.

3. If neither the State of nationality nor the State in whose territory the damage was sustained has presented a claim or notified its intention of presenting a claim, another State may, in respect of damage sustained by its permanent residents, present a claim to a launching State.

Article IX

A claim for compensation for damage shall be presented to a launching State through diplomatic channels. If a State does not maintain diplomatic relations with the launching State concerned, it may request another State to present its claim to that launching State or otherwise represent its interests under this Convention. It may also present its claim through the Secretary-General of the United Nations, provided the claimant State and the launching State are both Members of the United Nations.

Article X

1. A claim for compensation for damage may be presented to a launching State not later than one year following the date of the occurrence of the damage or the identification of the launching State which is liable.

2. If, however, a State does not know of the occurrence of the damage or has not been able to identify the launching State which is liable, it may present a claim within one year following the date on which it learned of the aforementioned facts; however, this period shall in no event exceed one year following the date on which the State could reasonably be expected to have learned of the facts through the exercise of due diligence.

3. The time limits specified in paragraphs 1 and 2 of this article shall apply even if the full extent of the damage may not be known. In this event, however, the claimant State shall be entitled to revise the claim and submit additional documentation after the expiration of such time limits until one year after the full extent of the damage is known.

Article XI

1. Presentation of a claim to a launching State for compensation for damage under this Convention shall not require the prior exhaustion of any local remedies which may be available to a claimant State or to natural or juridical persons it represents.

2. Nothing in this Convention shall prevent a State, or natural or juridical persons it might represent, from pursuing a claim in the courts or administrative tribunals or agencies of a launching State. A State shall not, however, be entitled to present a claim under this Convention in respect of the same damage for which a claim is being pursued in the courts or administrative tribunals or agencies of a launching State or under another international agreement which is binding on the States concerned.

Article XII

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, in order to provide such reparation in respect of the damage as will restore the person, natural or juridical, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred.

Article XIII

Unless the claimant State and the State from which compensation is due under this Convention agree on another form of compensation, the compensation shall be paid in the currency of the claimant State or, if that State so requests, in the currency of the State from which compensation is due.

Article XIV

If no settlement of a claim is arrived at through diplomatic negotiations as provided for in article IX, within one year from the date on which the claimant State notifies the launching State that it has submitted the documentation of its claim, the parties concerned shall establish a Claims Commission at the request of either party.

Article XV

1. The Claims Commission shall be composed of three members: one appointed by the claimant State, one appointed by the launching State and the third member, the Chairman, to be chosen by both parties jointly. Each party shall make its appointment within two months of the request for the establishment of the Claims Commission.

2. If no agreement is reached on the choice of the Chairman within four months of the request for the establishment of the Commission, either party may request the Secretary-General of the United Nations to appoint the Chairman within a further period of two months.

Article XVI

1. If one of the parties does not make its appointment within the stipulated period, the Chairman shall, at the request of the other party, constitute a single-member Claims Commission.

2. Any vacancy which may arise in the Commission for whatever reason shall be filled by the same procedure adopted for the original appointment.

3. The Commission shall determine its own procedure.

4. The Commission shall determine the place or places where it shall sit and all other administrative matters.

5. Except in the case of decisions and awards by a single-member Commission, all decisions and awards of the Commission shall be by majority vote.

Article XVII

No increase in the membership of the Claims Commission shall take place by reason of two or more claimant States or launching States being joined in any one proceeding before the Commission. The claimant States so joined shall collectively appoint one member of the Commission in the same manner and subject to the same conditions as would be the case for a single claimant State. When two or more launching States are so joined, they shall collectively appoint one member of the Commission in the same way. If the claimant States or the launching States do not make the appointment within the stipulated period, the Chairman shall constitute a single-member Commission.

Article XVIII

The Claims Commission shall decide the merits of the claim for compensation and determine the amount of compensation payable, if any.

Article XIX

1. The Claims Commission shall act in accordance with the provisions of article XII.

2. The decision of the Commission shall be final and binding if the parties have so agreed; otherwise the Commission shall render a final and recommendatory award, which the parties shall consider in good faith. The Commission shall state the reasons for its decision or award.

3. The Commission shall give its decision or award as promptly as possible and no later than one year from the date of its establishment, unless an extension of this period is found necessary by the Commission.

4. The Commission shall make its decision or award public. It shall deliver a certified copy of its decision or award to each of the parties and to the Secretary-General of the United Nations.

Article XX

The expenses in regard to the Claims Commission shall be borne equally by the parties, unless otherwise decided by the Commission.

Article XXI

If the damage caused by a space object presents a large-scale danger to human life or seriously interferes with the living conditions of the population or the functioning of vital centres, the States Parties, and in particular the launching State, shall examine the possibility of rendering appropriate and rapid assistance to the State which has suffered the damage, when it so requests. However, nothing in this article shall affect the rights or obligations of the States Parties under this Convention.

Article XXII

1. In this Convention, with the exception of articles XXIV to XXVII, references to States shall be deemed to apply to any international intergovernmental organization which conducts space activities if the organization declares its acceptance of the rights and obligations provided for in this Convention and if a majority of the States members of the organization are States Parties to this Convention and to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.

2. States members of any such organization which are States Parties to this Convention shall take all appropriate steps to ensure that the organization makes a declaration in accordance with the preceding paragraph.

3. If an international intergovernmental organization is liable for damage by virtue of the provisions of this Convention, that organization and those of its members which are States Parties to this Convention shall be jointly and severally liable; provided, however, that:

(a) Any claim for compensation in respect of such damage shall be first presented to the organization;

(b) Only where the organization has not paid, within a period of six months, any sum agreed or determined to be due as compensation for such damage, may the claimant State invoke the liability of the members which are States Parties to this Convention for the payment of that sum.

4. Any claim, pursuant to the provisions of this Convention, for compensation in respect of damage caused to an organization which has made a declaration in accordance with paragraph 1 of this article shall be presented by a State member of the organization which is a State Party to this Convention.

Article XXIII

1. The provisions of this Convention shall not affect other international agreements in force insofar as relations between the States Parties to such agreements are concerned.

2. No provision of this Convention shall prevent States from concluding international agreements reaffirming, supplementing or extending its provisions.

Article XXIV

1. This Convention shall be open to all States for signature. Any State which does not sign this Convention before its entry into force in accordance with paragraph 3 of this article may accede to it at any time.

2. This Convention shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the Governments of the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland and the United States of America, which are hereby designated the Depositary Governments.

3. This Convention shall enter into force on the deposit of the fifth instrument of ratification.

4. For States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Convention, it shall enter into force on the date of the deposit of their instruments of ratification or accession.

5. The Depositary Governments shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification of and accession to this Convention, the date of its entry into force and other notices.

6. This Convention shall be registered by the Depositary Governments pursuant to Article 102 of the Charter of the United Nations.

Article XXV

Any State Party to this Convention may propose amendments to this Convention. Amendments shall enter into force for each State Party to the Convention accepting the amendments upon their acceptance by a majority of the States Parties to the Convention and thereafter for each remaining State Party to the Convention on the date of acceptance by it.

Article XXVI

Ten years after the entry into force of this Convention, the question of the review of this Convention shall be included in the provisional agenda of the United Nations General Assembly in order to consider, in the light of past application of the Convention, whether it requires revision. However, at any time after the Convention has been in force for five years, and at the request of one third of the States Parties to the Convention, and with the concurrence of the majority of the States Parties, a conference of the States Parties shall be convened to review this Convention.

Article XXVII

Any State Party to this Convention may give notice of its withdrawal from the Convention one year after its entry into force by written notification to the Depositary Governments. Such withdrawal shall take effect one year from the date of receipt of this notification.

Article XXVIII

This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the Depositary Governments. Duly certified copies of this Convention shall be transmitted by the Depositary Governments to the Governments of the signatory and acceding States.

IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Convention.

DONE in triplicate, at the cities of London, Moscow and Washington, D.C., this twenty-ninth day of March, one thousand nine hundred and seventy-two.

The Kosmos 954 incident

In 1978, a Soviet satellite crashed in the Canadian Northwest. Later that same year, the Canadian Government presented a claim for damages based in part on the 1972 Liability Convention, to the Government of the Soviet Union. The incident was resolved through diplomatic channels, and the majority of the provisions of the 1972 Liability Convention were left untested.

Kosmos 954 was an ocean surveillance satellite that had been placed in orbit by the Soviet Union on September 18, 1977. On January 6, 1978, the satellite was sharply depressurised for unknown reasons and began to fall. The satellite’s descent was noted and traced by the North American Air Defense Command (NORAD), which warned countries in a position of risk beneath the path of the falling satellite. On January 24, 1978, the satellite re-entered the Earth’s atmosphere over the Northwest Territories of Canada and spread debris over an area of three hundred and twenty-one thousand square kilometres. The Soviet satellite was equipped with a nuclear reactor caused great concern about the possibility of serious nuclear contamination in Canada.

This concern led to a major search and recovery operation by the Canadian Armed Forces and the Atomic Energy Control Board of Canada, called Operation Morning Light. It was an airborne and ground operation designed to locate and recover or remove parts of the Soviet satellite and any nuclear debris. Specifically, the Canadians’ purpose 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 future 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 total costs incurred by Canada in Operation Morning Light were close to fourteen million Canadian dollars. Approximately one year after the incident, Canada presented a claim against the Soviet Union for just over six million Canadian dollars as compensation for damage allegedly caused by the fall of the Soviet satellite Kosmos 954. The Canadians did not rely exclusively on the 1972 Liability Convention in making this claim. Instead, they based it primarily on the 1972 Liability Convention, and, secondarily, on general principles of international law.

The Canadian claim against the Soviet Union was resolved through diplomatic channels. After three rounds of negotiations in which the Canadian claim was discussed “with full consideration given to its legal and factual implications”, a settlement was reached. On April 2, 1981, a protocol was signed between the Government of Canada and the Government of the Soviet Union stating that the Soviets would pay, and Canada would accept three million Canadian dollars in full settlement of the claim and all matters arising out of the crash of the Soviet satellite.