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Published by Enhelion, 2019-11-21 13:31:03

Module_3

Module_3

MODULE 3: LIABILITY AND REGISTRATION

3.1. LAUNCHING STATE AND REGISTERING STATE

The Treaty on Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and other Celestial Bodies is the foremost international law
when it comes to defining the concepts of space law. Article VI of this treaty puts the State
Parties internationally liable for national activities done in outer space, including the Moon
and other celestial bodies. Even the activities of non-governmental entities (for example,
private players) shall require the authorization and supervision of the appropriate State party.
Even when activities are carried out by international organization, the States taking part in the
same shall bear the liability and responsibility for complying with the Treaty.

Article VII of the Treaty makes the State who is launching the space object, internationally
liable to other State for any damages caused to the latter. These broad principles are covered
in the Conventions which specifically define launching state and registering state and
provides remedies in case of damages caused in outer space.

The Convention on International Liability for damages caused by Space Objects is the
Convention to govern the liability and extent of compensation for damages caused in outer
space. The words “Launching State” is defined as a state which launches or procures the
launching of a space object or a state from whose territory or facility a space object is
launched.1

Space object includes component of parts of a space object and also its launch vehicle and
related parts.2 The definition of space object is not exhaustive.

The Convention on Registration of Objects Launched into Outer Space defines a registering
State. The purpose of this Convention is to register the space objects launched by launching
States, so identification of Space Objects becomes easy.

1 Convention on International Liability for Damage Caused by Space Objects Article I (c).
2 Convention on International Liability for Damage Caused by Space Objects Article I (d).

The State of Registry means a launching State on whose registry a space object is carried on.3
The Launching State shall register the space object launched into Earth through an entry in an
appropriate register. In a situation where there are two or more launching States, they shall
jointly determine which state will register the space object.4

The Secretary General of the United Nations shall maintain a Register which will have a
record of all information provided for registering the space object,5 and States are also
required to maintain a Registry of all the Space objects launched.

The definitions of launching state and registering state as provided in the conventions are
overlapping to some extent, as the launching state would favourably want to retain the control
of the space object. Article VIII of The Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space provides that the state of registry will have
the jurisdiction and control over the object launched in space. Thus this Article makes it clear
that the space objects have to be registered at the national level so that their identification is
possible and that the jurisdiction and control of the state of registry is made out.6

3.2. LIABILITY AND RESPONSIBILITY UNDER THE OUTER SPACE TREATY

The Outer Space Treaty makes a State internationally liable for national activities done in
outer space. It does not matter whether the activities were carried out by government
authorities or non-governmental authorities. The non-governmental activities need to have
prior ratification of the appropriate State.7

One of the important elements of this provision is the scope and ambit of national activities.
National activities can be implied to mean having some linking or association with State
agencies. Making a state responsible even for the actions of private parties is another
important aspect to be noted here.

3 Convention on Registration of Objects Launched into Outer Space Article I (c).
4 Convention on Registration of Objects Launched into Outer Space Article II.
5 Convention on Registration of Objects Launched into Outer Space Article III.
6 supra note 6.
7 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including
the Moon and other Celestial Bodies Article VI.

The above Article makes it clear that the Space activities can be carried on by any legally
constituted body, whether State body or private entity, but the responsibility will eventually
fall on the State for the activities done.8 There is no distinction in actions done by State and
private parties.

There is some sort of deviation in the principles of internationally liability under this Article
and general principles of international law. The Article does not talk about any damages
done, it only talks about making the State internationally liable for activities of private
parties. The principle of due care, which is applicable in international law is not taken in
account here.9

The concept of due care easily helps the State to avoid responsibility by taking the defence
that due care was exercised, but this is avoided in space law, by making the State completely
responsible for the actions of State itself and also private parties. The State cannot evade
responsibility under this Article. Thus the liability of the State is strict under this Article.

There must have been some kind of damage in order to make someone liable. Thus damage is
an essential condition and breach or damage of any kind will make the other party liable. The
aspect of damage is dealt in Article VII of the Outer Space Treaty. It states that the State
which launches or secures the launching of an object in outer space and States from whose
territory or facility an object is launched, is internationally liable for damage to another State.
The distinction between State responsibility and liability, as according to the articles lies in
the fact that to make a State liable, the other party has to be prove damages, whereas for
making a State responsible no such breach is necessary.

Looking closely at the above two Articles, there is a lot of overlapping between liability and
responsibility of the State. A situation can arise where a State can be made liable for damages
arising, while at the same time the State can become responsible for a breach of space law

8 supra note 6.
9 Frans von der Dunk, Liability versus Responsibility in space law: Misconception or misconstruction, Air and
Space Law Commons, 1991, at 363, 367.

accruing to the same damage, ending up paying damages twice.10 These conflicting views are
because of the lack of clarity in definitions and Articles of the treaty. The scope and ambit of
the term launching state and appropriate state needs to be looked into as Article VII restricts
itself only to launching state or state from whose facility the space object is launched,
whereas in Article VI, for making the State responsible for private activities the term
appropriate state is used. If these definitions are overlapped, it would make their
interpretation easier.

3.4. ABSOLUTE LIABILITY AND FAULT LIABILITY

The Liability Convention provides for absolute liability under Article II which follows as
making the launching State absolutely liable to pay compensation for damage caused by its
space object on the Earth’s surface or to aircraft in flight.

Similarly, fault liability is when the damage is caused not on the Earth’s surface but
elsewhere by the space object of one launching state to the space object of another launching
state, making the former liable only if the damage is due to fault of the State.11

The first difference between absolute liability and fault liability is that the definition of
former only includes one State but the latter’s definition has two states involved. The second
difference comes to the place where the damage is caused. In absolute liability the damage is
caused on the Earth’s surface or in flight, inferring that it is caused on land, whereas in fault
liability the damage is not caused on the Earth’s surface implying the damage to be caused in
outer space.

The defence available with the launching state for absolving absolute liability is by proving
that the damage is because of gross negligence or an intentional wrongful act or omission by
the claimant state. But this defence is conditional as it is not granted when the actions of State
are not complying with the provisions of United Nations Treaties and as well as International
Law.12

10 supra note 10.
11 Convention on International Liability for Damage Caused by Space Objects Article III.
12 Convention on International Liability for Damage Caused by Space Objects Article VI.

By strictly interpreting the definition of fault liability, the most prominent inference that can
be drawn out is liability to pay damages is only to the extent of fault of one of the parties,
making it an inter-party liability situation. There is quantitative valuation of relative fault on
the part of the State to which damage is accrued. Fault is because of negligence of one party
to cause damage in outer space; once two space objects have created damage, it depends upon
the relative fault of the one who has to be responsible for causing the intended damage This
inter-party liability merely creates a division between two states involved in the damage as to
the amount of damage which should be compensated to each state.13

To make a claim under absolute liability, it is required to prove that the damage is caused by
the space object of launching state on the earth’s surface and the claimant need not prove any
negligence. State is absolutely liable even when the activity is done in good faith.14

The absolute liability provision is important as the risks involved in space activities are huge
and the innocent parties should have some protection from states conducted space activities
in diversified field. The definition of this Article creates ambiguity as it is the launching state
which has to be liable for compensation.

For example, a space object ‘X’ is launched by a launching State ‘A’ which has only
facilitated the launch of ‘X’. The State of Registration is another State ‘B’. In case of damage
caused by ‘X’ on the Earth’s surface, ‘A’ will be liable, but ‘B’ retains the jurisdiction and
control of the space object as being the State of Registry. Also ‘A’ is only facilitating the
launch of ‘X’.

The State of Registry can simply evade liability even though it has control over that object.
The launching state still has to compensate the claiming party even though it has only given
its territory for launching of space object, while the control and ownership of the space object
is with another State. This ambiguity will persist as the definition of launching state and
registering state are not overlapping to some extent.

13 supra note 10.
14 SANDEEPA BHAT B., SPACE LAW IN THE ERA OF COMMERCIALISATION, 141, (1st ed. 2010).

The process of getting compensation has also been outlined in the liability convention. It is as
follows:15

1. Claim will be presented to the launching state through diplomatic channels. If State
does not have diplomatic relations with launching state, they can either present it
through another State or through Secretary General of United Nations. (Pre-requisite
being that both states are members of United Nations.)

2. The time limitation for presenting the claim is one year from the date of damage.
3. Even if all the local remedies are exhausted (courts, tribunals, agencies etc) the

claimant state will still have an opportunity to present a claim through this
Convention.
4. Compensation awarded will be determined according to the principles of international
law, justice and equity.
5. Compensation shall be paid in currency of the claimant state.

3.5. STATE RESPONSIBILITY FOR PRIVATE SPACE ACTIVITIES

State is directly responsible for the activities of private entities as given in Article VI of the
Outer Space Treaty. The reason for making State directly responsible for private party
activities is that Space activities require a huge amount of investment and entails a risky
business. The private party should be made liable in case of any damage done in outer space
on or Earth’s surface. The general principles of International Law allows for State liability for
private actions only when the principle of due care or negligence is taken or whether the
actions are directly attributable to states.

However there is a deviation in these principles in space law. In space law, there is no
boundary or territory involved. The risks are huge, money involved is in millions and there is
always a high chance that some sort of damage could occur. So to cover all kinds of risks and
situations, direct state responsibility is needed and Article VI covers this point. There exists
no distinction between activities of State and private parties.

15 Convention on International Liability for Damage caused by Space Objects.

The State is in a better position to control the activities of private parties. They cannot escape
liability on any grounds. It also helps the State to plan for better policies and take protective
measures against activities of private parties.16 The State is liable for acts of private parties as
if it is their own agency.

The parties to the Treaty, whether governmental or non-governmental entity have to conduct
activities according to the provisions of the Treaty. So they require prior sanctions and
authorization of the appropriate State. Now here the term appropriate state comes into
picture, as there is no clear definition of this term.

Inferring from Article VI only, appropriate state can either mean that the private party is
situated in the territory of State or it is the launching state. Again a situation can arise where
these definitions creates conflicts. For example, a private party relating to a State ‘A’
prepares to launch its space object through the facility of another State ‘B’. In this case ‘B’
becomes the launching state. Now under the Outer Space Treaty, the State ‘A’ will be liable
as the private party pertains to that State. But under the Liability Convention, State ‘B’ would
be made liable as the launching state is absolutely liable.17 If State ‘A’ has not ratified the
Outer Space Treaty, then it can evade responsibility for the actions of its private entity.
Similarly, if State ‘B’ has ratified the Liability Convention, even without any fault it would
be liable.

These provisions are contradicting and thus creates more confusion when it comes to private
space activities, as it was seen through the above example. In no case the private entity
should be allowed to avoid its liability. The diversified space activities are luring more and
more private entities as there is huge scope of investment thus assisting the States in overall
expenses. If the States have not ratified either the Outer Space Treaty or the Liability
Convention, it can become difficult for them to make the private party liable.

Hence the contradictory provisions needs to be simplified and the provisions of the Treaty as
well as the Convention needs to be followed in strict sense. The State where the private party
is located should supervise all activities. The provisions should be adopted by the States in

16 supra note 15.
17 Ibid.

their national legislation, as explicit laws will ensure protection to possible innocent victims
from any kind of damage. These provisions through national legislation will also provide a
caveat to the private parties trying to engage in space activities so that they comply with the
regulations of the Treaty and take enough precautionary measures to avoid all kind of
damage.

3.6. REGISTRATION AND IDENTIFICATION

The Outer Space Treaty grants the State of Registry control and jurisdiction of the space
object launched into outer space. Registration is necessary to identify the space object in
outer space. The Convention on Registration of Objects Launched into Outer Space is for the
purposes of this registration and identification of space objects only. The main purpose as
given in the Convention is to make provision for national registration and to keep a publicly
accessible register of such objects launched into space.

The Convention defines launching state and space object the same way as defined in the
Liability Convention.18 The State of Registry is defined as a launching state on whose
registry a space object is carried.19
The important provisions in the Convention are:

❖ The launching State shall maintain an appropriate register and will register the entry
when a space object is launched into Earth Orbit or beyond. Such Registry will be
informed to the Secretary General of the United Nations.

❖ When there are two or more launching state involved, the registering state will be
jointly determined by them without any bias towards agreements concluded between
them regarding the control over space objects.

❖ The Secretary General of the United Nations will also maintain a register in which
information regarding registration will be available and there will be open access to
this Register.

❖ Where a State is not able to identify a space object which has caused damage to it,
other states will provide support under equitable and reasonable conditions in the
identification of the object.

18 supra note 2.
19 supra note 3.

The above provisions clearly point the relevancy of this Convention as being important to
identify the space objects. Registration of space objects comes in play when a space object is
lost in outer space or in some other State’s territory, or even if it has caused damage to other
state, as identification of State is necessary to point out the liability.
As the Outer Space Treaty provides for jurisdiction and control of space objects, to the State
of Registry, the ambiguity between state of registry and launching state should be cleared out.

An example would help to bring out the overlapping definitions. ‘A’ is the registering state
and ‘B’ is the launching state, which is only facilitating the launch of the State ‘A’. State ‘A’
launches a space object through State ‘B’ and unfortunately it results in damage. So
according to the liability convention, launching state ‘A’ should be absolutely liable, while
there exists no liability for the registering state. (The condition being that State ‘B’ has not
ratified the Outer Space Treaty).

Another change in this situation can be with respect to provisions of Article VII of the Outer
Space Treaty. State A launches a space object through the facility of State B. In case of
damage accrued, State B would be liable as the launching state under the provisions of the
above mentioned Article and State A would be internationally responsible for the national
activity as according to Article VI of the Outer Space Treaty, and also the jurisdiction and
control of the space object is with State B.

Thus for the same damage, two states are being made liable and responsible. These
ambiguities arise due to the conflicting regime of the provisions of the Treaty. Provisions
should be made for making a registering state liable in the liability convention.


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