Proceedings of the Workshop - United Nations Office for Outer ...

influence over the operation and control of the satellite. It should be noted that some States todayconclude bilateral agreements pursuant to Article V (2) of the Liability Convention to require the“operating States” to indemnify the “launching States” for any damage caused after orbitalinsertion. This is particularly important as the fault liability that forms the basis of liability fordamage caused in outer space is based on the fault of the launching States collectively and there isno treaty basis for the apportionment of liability between the launching States except by privateagreement. However, the practical enforcement of these agreements may be problematicconsidering that such agreements “shall be without prejudice to the right of a State sustainingdamage to seek the entire compensation due under this Convention from any or all of the‘launching States’”. 63In addition to the conceptual difficulties associated with the definition of a “launchingState”, there are further interpretation problems associated with the wording of the definitionitself. One such controversy is the issue of suborbital launches, which Gyula Gál suggested to beexcluded from the scope of the Liability Convention. 64 Karl-Heinz Böckstiegel suggests that notall suborbital launches would be excluded as the definition of “launch” includes attemptedlaunches, though what would constitute an attempted launch was not clarified. 65 Stephen Gorovesuggested that, as with criminal law, an “attempt” must be intended and involves “perpetration”or “execution” of adequate means that have come close to success. 66 This approach does notappear to have met with widespread acceptance and, in any event, this would limit the scope ofthe applicability of the Liability Convention in a way which the drafters may not have intended.The issue of “procuring” a launch for the purposes of the Liability Convention has alsoraised some questions, particularly in the context of private launch activities. Böckstiegelsuggested that the mere link of nationality of a private launch operator is sufficient to make thatState a launching State — the State must actively request, initiate or promote the launching of thespace object to have “procured” the launch. 67 This view is shared by Peter Nesgos in the contextof the “procuring” role of the State when one of its private enterprises provides a space object tobe launched by a foreign State or a launch operator of a foreign State. 68 In light of the obligationimposed on the “appropriate State” to authorise and continually supervise space activities of nongovernmentalentities and to take international responsibility for them under Article VI of theOuter Space Treaty, such an active role on the part of the State of nationality may be consideredunnecessary for a State to be considered to have “procured” a launch. 69 In such a context, thesuggested view by William Wirin that “procurement” requires actual control over the launch orthe payload in orbit is clearly an acceptable one. 702.2. Space Object63 Liability Convention, Article V.64 Gyula Gál, Space Treaties and Space Technology: Questions of Interpretation (1972) 15 PROC. COLL. L.OUTER SPACE 105 at 106.65 Karl-Heinz Böckstiegel, The Term “Launching State” in International Space Law (1994) 37 PROC.COLL. L. OUTER SPACE 80 at 81.66 Stephen Gorove, Space Transportation Systems: Some International Legal Considerations (1981) 24PROC. COLL. L. OUTER SPACE 117 at 118.67 Böckstiegel, supra note 65, at 81.68 Peter Nesgos, International and Domestic Law Applicable to Commercial Launch VehicleTransportation (1984) 27 PROC. COLL. L. OUTER SPACE 98 at 102.69 This is partly suggested in Gorove, supra note 66, at 120.70 Wirin, supra note 62, at 113.