Space Liability

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Ms. Lulu Makapela

on Space Liability

In the recent decades, the landscape for space has evolved significantly, from governments being the main funders of space programs through public – private industry partnerships, to now having many wealthy private investors playing a critical role in funding and driving the development of high-end commercial space capability, in various areas.
Whilst this is an exciting and progressive era for space development, this still presents a unique and challenging task for States, as they have the overall and primary responsibility for national activities in space and liability for damage caused by space objects under the Outer Space Treaty (OST) and the Liability Convention (LC), irrespective, whether the space object belong to governments or private industry or individuals.
On the one hand, the issue of both State responsibility and State liability is crucial and mandatory task for States, however, State liability, is a constantly debated complex issue and more so difficult to mitigate for developing nations and countries entering space launch partnership projects, whether big or small, this is evident in both developing and developed nations. The exposure to liability is a big risk for all space faring nations, which requires maximum supervision, infrastructure, and utmost levels of care, to protect space activities and interests in an environment, where the level risks are high and unknown. Although State liability is necessary to be in line with the Space Treaties, the underlying issue is how much liability the State can feasibly carry and how much insurance is sufficient to cover the risks of space activities.
On the one hand, the progressive advancement and the use of space technology is necessary due to the opportunities they create and the benefits to increase space capability and business, which is highly encouraged and sought out by both private industry and governments. Balancing the need to grow the commercial space industry and mitigating the liability of national governments against private sector activities, can be greatly achieved through stronger collaboration with commercial space industry to achieve global competitiveness.
However, States must still put measures in place to mitigate the high risk of exposure to liability and balance State Liability through legislative and regulatory directives and requirements for state liability insurance to protect the State from attracting debt on behalf of its private actors. This, however, can be a hinderance for many new space entrants particularly, in the developing nations who want to develop missions to space due to relative high costs, which could be better managed, if governments can be flexible to support industry in the form of establishing mutually beneficial partnerships with risk -sharing benefits and where possible financial guarantees for space activities, for the advancement of space.


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