Closing the Liability Loophole: The Liability Convention and the Future of Conflict in Space

By Kehrer, Trevor | Chicago Journal of International Law, Summer 2019 | Go to article overview

Closing the Liability Loophole: The Liability Convention and the Future of Conflict in Space


Kehrer, Trevor, Chicago Journal of International Law


I. Introduction

As commercialization and militarization of space proceed at an exponential rate, more actors than ever before are reaching for the stars. Indeed, astronauts and the satellites they live on and service are becoming increasingly critical to a globalized economy.1 Distressingly, however, the current liability regime creates a loophole of just the right size to permit a bad actor to bring a space object back down to Earth and cause harm, yet never worry about facing liability for that harm. This is because current international law commands that a state assume responsibility for harm caused by a satellite it launched regardless of whether there was an intervening actor. opportunities for mischief abound as a result, and this paper will explore hypotheticals that sketch out the shape that future conflict in space may consequently take.

The 1967 Treaty on Principles Governing the Activities of States in the Exploration and use of outer Space, Including the Moon and other celestial Bodies (the "Outer Space Treaty") laid the groundwork for a system of "international liability] for damage" caused by objects in space, but did not create a comprehensive regime.2 That task was instead left to the 1972 Convention on International Liability for Damage Caused by Space Objects (the "Liability Convention"). By the terms of the Liability Convention, when harm on Earth is caused by an object in space or formerly in space, the state that launched the object is presumed to be liable-even if it had no hand in bringing the harm about. This conclusion is compelled by the Liability Convention's apparent silence on the matter of intervening acts by third parties and its plain text.3 The Liability Convention's blindness to the possibility of intervening acts and its consequent misattribution of responsibility is nonsensical in the current context of human endeavors in space. Moreover, such a result is inconsistent with well-established background principles of international law regarding state responsibility and with international law analogues. These considerations weigh in favor of re-examining the Liability Convention's terms.

Like much international law, the purpose of the law of space is to permit orderly settlement of disputes between nations and to deter or equitably redress harm. The Liability Convention accomplishes the former objective by imposing a simple regime of strict liability-there is no dispute about who is legally responsible for harm under the regime. The Liability Convention fails to accomplish the latter goal, however, because its operation in cases involving intervening third parties is so inconsistent with basic principles of state responsibility that the preordained loser of a dispute would have no reason to consent to pay compensation. Moreover, the Liability Convention's terms ironically cannot possibly hold the most proximate cause of harm in these situations-the archetypical "Holmesian bad man"-liable for it.4 The Liability Convention thereby fails to deter bad actors and instead incentivizes frontier justice, inviting more disorderly conflict rather than avoiding and settling disputes.

Given that astronauts are effectively the sailors of space (and satellites are akin to their ships), an analogy to the law of the sea may help demonstrate the shortcomings of current space law. The customary law of war at sea provides that whichever state takes control of a ship via capture also assumes ownership and responsibility for it.5 Moreover, under the U.N. Convention on the Law of the Sea, individuals who seize ships for private ends are pirates subject to any penalties an apprehending state sees fit, and their stolen ships are understood to be pirate ships while under pirate control.6 Importantly, no positive international liability regime is necessary to address the acts of pirates (on Earth or otherwise).7 Thus, the customary law of the sea comprehends that responsibility for harm flows not from ownership, but from effective control. …

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