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.
After facing the test of time, art. VII of the Outer Space Treaty and the corresponding provisions of the Liability Convention are currently facing a series of emerging challenges. The existing technological advancements facilitate the use of artificial intelligence (AI) alongside human decision-making. Nevertheless, the latest research indicate that autonomy of space objects is becoming a top priority and with this, the role of human control is slowly decreasing. Moreover, some future missions, such as deep space missions, will only be possible in the absence of human control. In such context, a stringent topic is related to liability, specifically “quo vadis space liability?” Who will be liable in case a damage is caused by a space object equipped with advanced AI capabilities? Are the existing provisions of international space law sufficient to cover the technological disruption caused by AI systems?
The Liability Convention, 1972, lays down two different legal regimes for damages caused by space objects “on the surface of the earth or to aircraft flight” (Art. II) or occurring “elsewhere than on the surface of the earth to a space object […] or to persons or property on board” (Art. III). Respectively, the State shall be “absolutely liable”, or “liable only due to its fault or the fault of persons for whom it is responsible”. Absolute liability is usually justified by the high risk inherent in space activities and requires only proof of the causal relationship between the event and the damages, regardless of the violation of a specific norm of due diligence, which is instead the basis of fault liability. In a context of increasing orbit congestion and resultant high risk of collisions in space, the topic of fault liability deserves further definition. The specific parameters to determine the degree of fault especially remain to be properly identified. Acts of hard international law such as the Liability Convention leave the matter unaddressed, and the academic discussion has slowly progressed over the years. Nevertheless, there is a concrete opportunity to refer to soft law norms – such as the ones contained in the 2019 COPUOS Guidelines for the Long-term Sustainability of Outer Space Activities as well as future STM rules potentially adopted – to build up specific criteria to measure the diligence maintained by a State while conducting space activities. If those rules served as the basis for parameters to assess the degree of fault, then this framework would result in a win-win situation: first, soft law acts will be used as points of reference in judicial and ADR cases, and consequently their implementation worldwide will be enhanced. Soft law guidelines and best practices may therefore aim at becoming the customary standard of care in conducting space activities, so gradually acquiring binding force. Finally, the technical applicability of the agreed discipline would be under question. Actually and for instance, the large amount of SSA data that is currently available could be used as evidence of compliance with some of the established rules, despite the international challenges that could arise in agreeing on such a control mechanism. On the whole, a clear identification of the parameters to measure fault would benefit the liability discipline, making it truly implementable, and in parallel could contribute to facilitating the establishment of incentivised and verifiable standards.
Liability is the consequence of an unlawful act of a subject of international law. In space law Article VII of the Outer Space Treaty and the Liability Convention make the launching State ´, e.g. the state that launches, procures the launch or from whose territory or facility a launch is made, liable for damage that has occurred either to another spacecraft or to people on Earth respectively to aircraft in flight. There is always state liability which is in principle unlimited. Victims must channel their claim via their home state to the launching state. In case of more than one launching state the victim can choose whom to sue. In case the parties cannot agree or as on reason or amount of damage they can call upon a claims commission composed of three personalities, one determined by claimant, one by respondent and the third appointed unanimously by both parties.