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

The term “equity” has been noted as referring not to the common law concept of equitybut rather to signify “moral justice”. 93 In other words, the assessment of damages is a task to beundertaken with reference to the actual losses suffered rather than through the application ofdomestic or secondary international principles.The United States has long expressed the view that moral damages are covered by theLiability Convention and that, if a claim is made in the future by the United States, such a claimwould include a component for moral damages. 94 While the moral damage done to a naturalperson may establish a sufficient causal link with the space object, it is difficult to see how themoral damage suffered by a State would be recoverable if a causal connection cannot be made tothe space object, considering the mere causation of damage by a space object is not prima facie abreach of an existing principle of treaty law.Punitive damages have been considered by commentators to be both unnecessary andunrecoverable. 95 The reason why punitive damages may be considered unnecessary is because ofthe provision for unlimited liability under the Liability Convention that allows the victims torecover sufficient compensation for their damages sustained. There appears to be three reasonswhy punitive damages may be unrecoverable:1. The provisions of Liability Convention is very specific in tying the causation of thedamage sustained to the space object and punitive damages cannot be included asthey are not by its very own nature compensation for damage sustained by theclaimant State;2. Punitive damages are generally assessed by tribunals only to punish the intentionalacts of tortfeasors while the Liability Convention does not make any distinction onthe liability of the launching States for intentional, reckless, negligent or accidentaldamage; and3. In the case of the launching State acting in breach of an existing legal principle, theappropriation “sanction” is the unavailability of any exoneration from absoluteliability under Article VI of the Liability Convention and not the imposition ofpunitive damages.4. Procedural Issues4.1. Right to ClaimThe Liability Convention is an international legal instrument that deals only with liabilitybetween States, even where it is not the State itself that suffers damage caused by space activities.Consequently, the right to claim for compensation under the Liability Convention is held by theStates and not private nationals.Article VIII of the Liability Convention provides that, in the case of damage suffered byprivate entities, the right to claim is first given to the State of nationality. 96 If the State ofnationality does not present a claim, then the State on whose territory the damage sustained may93 Ronald E. Alexander, Measuring Damages under the Convention on International Liability for DamageCaused by Space Objects (1978) 6 J. SPACE L. 151 at 153.94 Senate Committee on Foreign Relations, CONVENTION ON INTERNATIONAL LIABILITY FOR DAMAGECAUSED BY SPACE OBJECTS (1972) S. EXEC. REP. 92-38, 92 nd Cong., 2 nd Sess. 9 at 7; and S. NeilHosenball, Space Law, Liability and Insurable Risks (1976) 12 THE FORUM 141 at 151.95 See, for example, Christol, supra note 86, at 365-366.96 Liability Convention, Article VIII (1).