Liability

Liability generally refers to the legal obligation to compensate another for injury following an event that causes damage. The Outer Space Treaty establishes a liability obligation in article VII, by which “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”.

There is a fundamental, substantive difference between the concept of article VI (international responsibility) and article VII (international liability). This difference can create interpretative difficulties as some languages use the same word to refer to both concepts —for example Spanish (responsabilidad) and French (responsabilité).

The liability obligation is financial or pecuniary in nature, thus entailing a duty to compensate (pay money to) another State for damages caused by its space objects. Responsibility involves a State’s duty to authorize and continually supervise the activities of its nationals, and to ensure that the “national activities are carried out in conformity” with the provisions of the OST.

The Convention on International Liability for Damage Caused by Space Objects expands further on this obligation, distinguishing between two distinct types of liability:

• Absolute liability (article II): if a space object causes damage to an object “on the surface of the Earth or to aircraft in flight”, the launching State of that space object shall be absolutely liable. Under this absolute standard, a State must compensate a victim State for damages, whether or not the launching State was at fault.
• Fault-based liability (article III): when there is a “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 standard is fault-based liability. To determine the existence of fault, a tribunal (or commission) applying the Convention would assess the specific facts of the case, as well as the conduct of the launching State.

A launch may involve multiple launching States and, according to the Liability Convention, each may be held jointly and severally liable for damage. Specifically, a claimant may pursue its claim against any of the launching States, each of which could be 100 per cent responsible for paying the claim. After the claimant is compensated, any division or proportion of liability among the defendant launching States could be addressed subsequently.