The Liability Treaty of 1972

This treaty is fully titled as “The Convention on International Liability for Damage Caused by Space Objects.” It recognizes one of the tru­isms of human existence, that there can and will be unintended consequences attached to human endeavors, and when those consequences result in damage to others, there should be a defined process to address those consequences by the payment of money damages.

The Liability Treaty sets out a complex regi­men designed to cover essentially every possible scenario in which damage results from the launch of any space object. It incorporates principles of tort law, contract law, strict liability, indemnity, and other legal concepts that are beyond the scope of our discussion. The basic operation of the treaty, however, follows.

The treaty makes the launching state (or any state that procures a launch by another state) absolutely liable for any damage caused by the launched object that occurs either on the surface of the earth or to aircraft in flight. The liability is on the contracting party (the country that signs the treaty) even though the launch may be made by a private company. The liability attaches to the state even though there is no fault, or neg­ligence, connected with the launch in any way. This is known as “strict liability.”

By way of example, assume that the country of Malaysia contracts with Boeing Launch Ser­vices to launch a satellite from Cape Kennedy. The launch results in a collision with an Airbus 300 operated by Air France, killing all foreign passengers and crew and destroying the aircraft. The debris falls in the ocean on the high seas and damages a Russian warship and members of its crew. Who is liable?

The short answer is that the United States, as the signatory country to the treaty, would bear the liability in the first instance. The lia­bility would be to Air France for the value of the Airbus, for damages to the families of the passengers and crew for loss of life, for dam­ages for the value of onboard baggage and cargo, for damages to the warship to the state of Russia, and for damages to sailors aboard the Russian ship.

If neither the United States nor Malaysia (which procured the launch) is guilty of any fault or negligence, then the United States would have an action under the treaty to recover half of its payout from the state of Malaysia, assuming it was also a signatory to the treaty. The United States (and Malaysia) would have a possible right of indemnity against Boeing Launch Ser­vices, under the laws of the United States, for which the United States would be made whole for all payments made.

The treaty separately addresses the sit­uation where a space object belonging to a launching state (State A) is damaged by a space object belonging to a second launching state (State B). If the space object that is damaged is on the surface of the earth, the rules are the same as stated above, that is, strict liability. But if the damaged space object is anywhere else (in the atmosphere or in outer space), then the state that launched the damaging space object (State B) is liable to State A only if State В is somehow at fault, or negligent, which causes the damage. This distinction recognizes, for example, that a collision of satellites or launch vehicles in motion may be the fault of either one or the other launching states, or both, and that proof of that fault should be a precondition to liability.

Liability may be avoided by the launching state, even under strict liability, if the launching state can prove that the damage was caused by the claimant’s gross negligence or intentional act.

The treaty also does not apply to claims made by citizens of the launching state against the launching state (for example, an American against the United States), since that would be a matter of national, not international, law.

Claims for compensation are presented through diplomatic channels, or through the United Nations.