Electronic Proceedings - United Nations Office for Outer Space Affairs

• On the other side we have a kind of a “pool” of States taking part in the activity oflaunching a space object. Together, they must guarantee indemnification if something goeswrong at any time during the activity. This is the aim and purpose of the Liability Convention.They are collectively liable for any damage even if each one of them is not involved in everydistinctive phase of the activity. The State which procures the launch is not involved in thelaunch phase, and the State of territory is no longer involved in the project when the spaceobject is in orbit; nevertheless they are collectively and “jointly and severally” liable towardthe “innocent” victim for any damage at any time. That does not really mean they areindividually liable for the damage at the time of the accident; it means that by taking part inthe adventure they have accepted to take part in the guarantee mechanism. This does not meanthat they will have to pay, but just that they will have to guarantee the victim. When there ismore than one launching State, which State is going to pay in fine, to bear the burden of thecost of risk is not covered by the Liability Convention. The Liability Convention does notdeal with the apportionment among the launching States of their financial obligations. Specialagreements must be concluded in order to solve the problem. If the burden of liability seemstoo heavy to some States that are not very heavily involved in the activity, it is because theydid not negotiate the agreements referred to in article V of this convention.Thus, the liability mechanism is very efficient toward victims on Earth. This is not thecase when the damage is caused to another space-faring State.IIThe Liability Convention is far less efficient for damage in outer space.The Liability Convention considers liability for damage caused by a launching Statewherever it occurs. The distinction between damage on Earth and damage in outer space isonly a detail. The fact that we have only one system for damage on Earth and for damage inouter space impedes the Convention. Both an objective and a fault-based liability cannot beset in the same system. Their logics or rationale are different; their rules should be different.Let us have a look at two consequences of these shortcomings:• Imputation of the liability.In the case of an objective/absolute liability, this issue is fundamental – the law, here thetreaty, must determine who is going to be liable. The Liability Convention does: it is thelaunching State. Very well, as far as an objective liability is concerned; but it is no longerconvenient if a fault-based liability is involved. Then the rule “res ipsa loquitur” should apply.Facts only will speak and determine the liable entity. In the case of the Liability Conventionthe text sets this entity: the launching State will be liable, but only if its fault may be proven.As this does not apply to victims on Earth, but only to other space States, I have no majorobjection to that. A State or a private entity that conducts activities in outer space is aware ofthe risk it runs.The problem is that, when a fault-based liability is concerned, it is an error to limit theliability to the launching State. In the case of damage to persons or properties on boardanother space object, the liability rule should consider the State at fault not the launchingState (res ipsa loquitur). If the fault has not been committed by a launching State but byanother State, the Liability Convention does not apply. In that case, the reference to thelaunching State is very counterproductive. For instance, the victim cannot use the ClaimsCommission mechanism. It would have been much more efficient for the LiabilityConvention to clearly distinguish between absolute liability and fault-based liability.27