Private Entities in Outer Space Activities: Liability Regime Reconsidered

Abstract

This article discusses the current state of the law concerning the liability of private entities for damages caused with respect to space activities. A significant and continuous increase in the involvement of private companies in space activities risks damages being caused to other entities as multilateral treaties of international law, adopted between 1967 and 1979, are outdated and do not correspond well with contemporary reality. They do not comprehensively regulate the responsibility in relations between states and, even more so, with private entities. In general, these treaties regulate damages caused by private entities by giving responsibility to states, which seems unfounded in today's world. States can also conclude bilateral treaties on space projects that involve private entities. Usually, such agreements contain a standard third-party liability clause concerning the Liability Convention or mention of the possibility of commencing consultations on the apportionment of the liability between states as the parties to these treaties. These have no specific norms dedicated to the liability of private launchers toward potential victims of the damage caused by space objects or another harm related to space activities of such companies. Some bilateral treaties on the joint space projects of states also contain cross-waiver liability clauses, which release private companies from liability. Furthermore, there is a tendency in the domestic law of limiting the liability of private entities for space activities (e.g., in the United States, even state regulations require the exclusion of the liability of space launch operators for damages caused to third parties).