Complications of the legal definition of “launching state”by Babak Shakouri Hassanabadi
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| The main objective of addressing the term of “launching state” in the body of space law has been for easily identifying the state that in the event of any accident should be considered liable. |
Article VII of the Outer Space Treaty provides that states are internationally liable for damage to another state or its natural and juridical persons, if such damage is caused by relevant space objects.1 This clause is elaborated by the Liability Convention, affirming that states are the only entities2 that can possibly incur international liability as “launching state.”3
The particular state or states that are to be held liable for a specific space object causing damage is determined by a well-known and quite precise set of criteria provided by Article VII of the Outer Space Treaty. These criteria enumerate the state(s) that may jointly or separately launches the space object, the state which procures the launching of that space object, the state from whose territory the launching of that space object occurs, and the state from whose facility the space object is launched.4
In addition, Article I of Convention on International Liability for Damage Caused by Space Objects of 1972 recognizes the launching state as follows: “…(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 objects is launched;”
That is to say, in some circumstances three or more distinct states can be taken as launching states of a single space object. Take the case of the launch of a Russian-built Soyuz rocket from the spaceport in French Guiana, procured in this hypothetical example by an American company for its satellite. France, Russia, and the United States are all together launching states of aforesaid satellite and accordingly liable to the caused damages if the launched satellite falls back to Earth or collides with another satellite or object in space.
It has been argued that the purpose of establishing several launching states is to ensure that the victim has ample possibilities to be compensated.5 Moreover, the Liability Convention expands upon the principles of liability for damage caused by space objects introduced in Article VII of the Outer Space Treaty of 1967. There are two scenarios where damage could be caused by a space object. The first scenario envisions a space object that causes damage to the surface of the Earth or an aircraft in flight, and the second scenario deals with an event where a space object causes damage someplace other than the surface of the Earth, i.e. a space object, outer space, or another celestial body.
Each scenario of the Liability Convention has a different standard of liability. The first scenario applies a strict liability standard, whereby a state is considered strictly liable for any damage caused by a space object launched even in circumstances that are outside of logical control. Under this standard, if more than one state is responsible for the launch of the space object in question then that states will be held jointly and severally liable for any damage caused. In other words, all launching states ought to pay the compensation to the victim state.
Article IV of the Convention on International Liability for Damage Caused by Space Objects reads: “…(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.”
Generally speaking, the compensation has to be divided in equal shares among launching states so that each state pays the same partial compensation that collectively covers the overall damage or cost suffered by the victim state. However, if there is any clear fault, negligence, or internal agreement among the launching states that reasonably overrules the equal shares principle, then the amount of compensation that each launching state has to pay is determined either by regulation specified in the prior agreement that they have concluded or the extent to which their fault or negligence has been influential in occurring the incident and consequent damages.
The first scenario of the Liability Convention was invoked by Canada through diplomatic channels after the reentry and subsequent crash of the RORSAT Cosmos 954 on January 24, 1978 in the northwest territory of Canada and led to a settlement for the costs of the cleanup and damages.6
| In the event of an accident, what would be the extent to which any of launching states has to pay for compensation? |
The standard of liability applied under the second scenario is a more complicated one in that it applies a fault liability standard whereby a state will be considered liable only if it can be shown that the damage caused was due to the fault of the state or states responsible for the launch of the space object, as the case may be. This criterion only is applicable when the damage has been caused by a space object to another space object or facility in the space. That is to say, in case of any space accident between satellites or damage to space-based installations, the state which is in fault shall be accountable for payment of compensation to victims of such damage or remedy incurred losses.
Section (b) of article IV of the Liability Convention specifies a chain accident in which collision of space object A to space object B leads object B to strike object C, which results in losses and damages for object C. This section of article IV reads: “…(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.”
In abovementioned case, generally both A and B are jointly and severally responsible to remedy the damages caused to C, unless the technical or personnel fault is logically attributable only to one of them, which will indemnify the other in terms of damages suffered by C. It is noteworthy that in such a legal dispute, at the preliminary stage the claim can be brought before the respective court jointly and severally against all involved launching states, but once the faulty party is determined through sa review of the incident by the court, any claim against non-faulty state(s) becomes null and void and just the faulty state(s) is/are accountable for full payment of relevant compensation. As of yet, there have been no instances where the fault regime of the Liability Convention has been applied.
What are the liabilities of a “launching state”?
The main liability of launching state(s) specified in the preamble of the Liability Convention is to ensure, in particular, the prompt payment under the terms of the Convention of a full and equitable measure of compensation to victims of any damage caused by space objects.
As it has been discussed above, today there is typically more than just one state involved in the launch of satellites or other space objects. In the event of an accident, what would be the extent to which any of launching states has to pay for compensation?
If the damage takes place on the surface of Earth or even to a flying aircraft within Earth’s atmosphere, the liability is absolute. That is, regardless of being in fault or not, all of the launching states have equal responsibility to pay for compensation. Article II of the Liability Convention states: “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 flight.”
Further to this, section 1 of article V of the Liability Convention addresses the situation in which multiple launching states are involved. It reads: “1. Whenever two or more States jointly launch a space object, they shall be jointly and severally liable for any damage caused.”
With regard to realities of international space cooperation, it is crystal clear that the level of involvement of diverse parties in any given space program is not equal. That is, it seems unfair to bind a state to equally pay for the damage caused by an incident where its contribution was minimal.
For example, section 3 of Article V of the Liability Convention considers the state from whose territory or facility the space object has been launched to be regarded as a participant in a joint launching and hence responsible to pay for any consequent damage if an accident happens. Although application of this rule may not completely fit the framework of equity from the launching states’ perspective, one should note that the main objective of the Convention is to safeguard the compensation to the victim via any possible means. Such an attitude could be traced back to the dawn of the Space Age, when space activities conducted by the US and USSR were regarded by third world countries as a new and, for the most part, unknown threat to their national interests. Accordingly, the space law documents that are direct fruit of those countries’ legal endeavors are designed to one-sidedly preserve and maximize their interests.
The proof such a view regarding space activities can be found in the criteria that the Convention has laid down for compensating the damage from the collision of two manmade space objects. Here, the Convention retreats from an absolute liability regime and, in contrast with the case in which the damage is occurred on the surface of Earth (and may involve a third world country’s interest), adopts the responsibility by failure regime. Article III of the Liability Convention reads:
“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.”
No third world country, at the time of the drafting the Convention, had the technical possibility of conducting any kind of space program, so here a one-sided absolute liability regime has been substituted with liability due to failure because those nations thought that this criterion won’t be applicable to them whatsoever.
What damages can be claimed?
As to responsibility toward damages caused by a space object, it should be noted that only the states are accountable for paying the relevant compensation in all cases, no matter if the launch has been carried out directly by governmental entities or via the private sector, comprising natural or juridical person national of the said state. The legal basis of such provision is derived from Article VI of the Outer Space Treaty:
| Space law ought to put forward practical solutions to ease the hurdles associated with the definition of “launching state” within this internationalized environment of space programs. |
“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.”
Hence, within the framework of an international space organization like the European Space Agency (ESA) that involves satellite launch programs, liability for compensating potential damages is directly contributable to both the organization and all member states. Here the victim state has the choice to demand the compensation from ESA directly or from its member states. In either case, the absolute liability of the organization or its member states (jointly or severally) won’t be disputed unless the damages or incurred costs are fully remedied by them in one way or another.
In terms of the kind of damages that can be claimed, section (a) of Article I of the Liability Convention notes: “For the purposes of this Convention, 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.”
In absence of further details in the Liability Convention in terms of legal criteria for identification of damage and amount of affiliated remedy, the judicial system of the country where the space object has crashed seems to be the sole eligible legal authority to tackle the issue. By the same token, in the case of damages caused by collisions in space, the judicial system of the country that owns the damaged satellite or space object has the jurisdiction.
Tackling the complications
With regard to definition of “launching state” and consequent responsibilities in the event of potential damages, both the Outer Space Treaty and Liability Convention are based on the assumption that state or states that launch an object into space would hold effective control or undisputed authority over the said object.
This assumption is based on the fact that, at the dawn of space age, all kinds of activities in outer space were directly enforced by governmental entities and thus were not subject to any kind of transfer of control or ownership to even the launching states’ private sectors, let alone foreign public or private competitors.
Today, without international cooperation massive space programs, such as human missions to Mars or global satellite networks, are not feasible. Accordingly, space law ought to put forward practical solutions to ease the hurdles associated with the definition of “launching state” within this internationalized environment of space programs.
There are additional difficulties that may arise from situations which have not been expressly contemplated in the definition of launching state. For example, a problem may arise from the sale of a satellite in orbit. In the case of a sale of a satellite to a national of a state that was not an original launching state, this new state may not be held liable under the Outer Space Treaty and the Liability Convention, but it could be under general international law.
Since the sale of satellites, or any other type of space objects operating in orbit or interplanetary space, is not foreseen by Liability Convention, the state whose national sells the satellite or other space objects would continue to be recognized as launching state under the Liability Convention. Thus, it is crucial to take note of this issue and ensure that contracts explicitly address the transfer of liabilities from seller to buyer and indemnify the original “launching state” from any consequent claims in terms of possible caused losses or damages should any accident happens. Otherwise, the victim could always seek the entire compensation from any launching states, including the state of the seller of the satellite or space object. The Liability Convention itself would allow this possibility, since Article V authorizes the possibility of agreements to allocate the financial obligation among States.
Agreements apportioning liability are allowed by the Liability Convention under section 2 of Article V, thus states and private entities that jointly cooperate in peaceful space activities in general, and the launch industry in particular, may rest assured that by concluding an agreement addressing apportioning liability, they can effectively avoid possible legal disputes or discrepancies about incurred damages in future.
| The best way to cope with legal difficulties of internationalized partnership of public and private sectors of various countries in space launch industry is through conclusion of a general liability agreement that clarifies all dimensions of liabilities. |
The content of apportioning liability agreement may follow any internal accord between the involved parties in launch program, but it is noteworthy that such agreements ought to be in line with general principles of fairness, good faith, and equity enshrined in public international law. In other words, liability agreements that impose unjust or unreasonable burdens upon the member parties are legally unenforceable and any measures taken in line with such provisions are legally null and void. In case an agreement contains such provisions, the victim state has undisputed right to disregard the agreement and jointly or severally refers to the launching states and request the collection of caused damages or cost by space object. The allocation of remedies between launching states may be based on equal shares unless any further agreement between launching states on one hand and victim state on the other is agreed upon.
Conclusion
The future of space activities is in the hands of the private sector and the main incentive for any private entity in proceeding with such activities is lucrative business opportunities. The commercial launch of satellites, cargo, and even tourists into space has been one of the main areas of interest for private space companies and it is expected to flourish even more in the years to come.
Although both the Outer State Treaty and the Liability Convention have scrutinized legal definition and consequential responsibilities of the launching state or states, the best way to cope with legal difficulties of internationalized partnership of public and private sectors of various countries in space launch industry is through conclusion of a general liability agreement that clarifies all dimensions of liabilities should the launched space object cause any damage.
Endnotes
1 CQ Christol, The Modern International Law of Outer Space (1982). 90-1; Horbach, eg, 28.
2 With the exception, of course, under circumstances, of international intergovernmental organizations; see Art XXII, Liability Convention. Since this still concerns public entities, not legally authorized or supervised moreover through a single sovereign jurisdiction, this does not detract from the public character of international space law, and therefore is of little consequence for the issue of private space activities here.
3 Art I(c), Liability Convention
4 Von der Dunk, Frans G., "Sovereignty versus Space - Public Law and Private Launch in the Asian Context" (2001). Space and Telecommunications Law Program Faculty Publications. Paper 1. Available at: http://digitalcommons.unl.edu/spacelaw/1
5 Hermida, Julian, “International responsibility for space activities”, The Hague, London, and Boston: Kluwer Academic Publishers, 2004
6 Listner, Michael, “Revisiting the Liability Convention: reflections on ROSAT, orbital space debris, and the future of space law” (2011) available at: http://www.thespacereview.com/article/1948/1