¹ Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/8420, at 8 ( 1971 ). The draft convention had been adopted by the Legal Sub-Committee of the Committee on the Peaceful Uses of Outer Space at its 166th meeting on June 29, 1971 and was issued as U.N. Doc. A/AC.105/C. 2/10. See Report of the Legal Sub-Committee on the Work of its Tenth Session (June 7 – July 2, 1971) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC. 105/94, at 5 (1971).

In both the Legal Sub-Committee and the Committee on the Peaceful Uses of Outer Space four delegates (namely, those from Canada, Iran, Japan and Sweden) were unable to support the draft convention primarily because of the doubts they held about the adequacy of the articles on the measure of compensation and the settlement of disputes. Consequently, they reserved their positions on the substance of the text of the draft convention. See Report of the Legal Sub-Committee on the Work of its Tenth Session (June 7 – July 2, 1971 ) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/94, at 13 (1971) and Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/8420, at 16 ( 1971 ).

² The Convention was adopted by the First Committee by a vote of 90 to 0 with 4 abstentions (Canada, Iran, Japan and Sweden). See 65 Dept. State Bull. 39 (1972).

³ U.N.G.A. Res. 2777 (XXVI) of November 29, 1971. The resolution was carried by a vote of 93 to 0 with 4 abstentions (Canada, Iran, Japan and Sweden) : see ibid.

⁴ The Convention, which is hereinafter referred to as the Liability Convention, is annexed to U.N.G.A. Res. 2777 (XXVI) of November 39, 1971. The Liability Convention entered into force on the deposit of the fifth instrument of ratification on September 1, 1972 in accordance with the provisions of Article XXIV (3). As of October 30, 1978, although 67 states have signed the Convention, only 5 states (Bulgaria, Ecuador, Ireland, Mali, and Niger) have ratified it.

⁵ By U.N.G.A. Res. 1348 (XIII) of December 13, 1958, the General Assembly created an Ad Hoc Committee on the Peaceful Uses of Outer Space and requested it to report on, among other matters, the “nature of the legal problems which may arise in the carrying out of programs to explore outer space.” In the report of the Ad Hoc Committee, presented in 1959, the legal problems that could arise from activities in outer space were divided into two groups: “Legal problems susceptible of priority treatment,” and “Other problems.” Within the first group was included the issue of “Liability for injury or damage caused by space vehicles”: See Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4141, at 63 et seq. (1959).

The question of liability for damage caused by space object accidents was also considered a priority issue by some of the delegates in the Legal Sub-Committee of the Committee on the Peaceful Uses of Outer Space from the time of its inception in 1962. See statements of the Argentinian delegate, U.N. Doc. A/AC.105/C.2/SR.3, at 4, and SR. 13, at 10 (hereinafter cited as SUM.REC); the Australian delegate, SUM.REC. 4, at 5; the Canadian delegate, SUM.REC. 4, at 7; the French delegate, SUM.REC. 3, at 5, and SUM.REC. 9, at 4; the Italian delegate, SUM.REC. 20, at 6; the Mexican delegate, SUM.REC. 2, at 5, and SUM.REC. 14, at 2; the Polish delegate, SUM.REC. 6, at 7; the Swedish delegate, SUM.REC. 4, at 6; the U.A.R. delegate, SUM.REC. 5, at 2; the U.K. delegate, SUM.REC. 3, at 3, and SUM.REC. 10, at 6; and the U.S.A. delegate, SUM.REC. 1, at 9, and SUM.REC. 13, at 7.

⁶ The Committee on the Peaceful Uses of Outer Space, a permanent body, was established by U.N.G.A. Res. 1472 (XIV) of December 12, 1959.

⁷ The Legal Sub-Committee of the Committee on the Peaceful Uses of Outer Space was established by the Committee at its second session in 1962: see Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5181, at 4 (1962). From the date of its creation to 1972 the Legal Sub-Committee has held eleven regular and one special session. See generally Report of Legal Sub-Committee on the Work of its First Session (May 28-June 20, 1962) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/6 (1962); Second Session (April 16-May 3, 1963), U.N. Doc. A/AC,105/12 (1963); Third Session (March 9-March 26 and October 5-October 23, 1964), U.N. Doc. A/AG.105/19 and 21 (1964); Fourth Session (September so-September 38, 1965), U.N. Doc. А/AG. 105/29 (1965); Fifth Session (July 12 – August 4 and September 26, 1966), U.N. Doc. A/AC. 105/35 (1966)) Sixth Session (June 19-July 14, 1967), U.N. Doc. A/AC. 105/3 7 (1967); Special Session (December 14 – December 15,1967), U.N. Doc. A/AC.105/43 (1967); Seventh Session (June 4-June 28, 1968), U.N. Doc. A/AC.105/45 (1968); Eighth Session (June 9-July 4, 1969), U.N. Doc. A/AC. 105/58 (1969); Ninth Session (June 8-July 3 1970), U.N. Doc. A/AC.105/85 (1970); Tenth Session (June 7-July 2, 1971), U.N. Doc. A/AC.105/94 (1971); Eleventh Session (April 10-May 5, 1972), U.N. Doc. A/AC: 105/101 (1972).

⁸ See, for example, the Belgian draft convention: U.N. Doc. A/AC.105/C.2/L.7; U.N. Doc. A/AC.105/C.2/L.7/Rev. 1; U.N. Doc. A/AC.105/C.2/L.7/ Rev. 2; U.N. Doc. A/AC.105/C.2/L.7/Rev. 3; the Hungarian draft convention: U.N. Doc. A/AC.105/C.2/L.10; U.N. Doc. A/AC.105/C.2/L.10/Rev. 1, and Corr. 1; U.N. Doc. A/AC.105/C.2/L.24 and Add. 1; the Indian draft: U.N. Doc. A/AC.105/C.2/L.32; U.N. Doc. A/AC.105/C.2/L.32 and Add. 1; U.N. Doc. A/AC.105/C.2/L.3a/Rev. 1. and Corr. 1; the Italian draft convention: U.N. Doc. A/AC.105/C.2/L.40; U.N. Doc. A/AC.105/C.2/L.40 and Corr. 1 and 2; the U.S.A. draft convention: U.N. Doc. A/AC.105/C.2/L.8; U.N. Doc. A/AC.105/C.2/L.8/Rev. 1; U.N. Doc. A/AC.105/C.2/L.8/Rev. 2; U.N. Doc. A/AC.105/C.2/L.19; U.N. Doc. A/AC.105/C.2/L.58; and the working papers annexed to the Report of the Legal Sub-Committee on the Work of its Sixth Session (June 19-July 14, 1967) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/37, Annex. II (1967), and Report of the Legal Sub-Committee on the Work of its Seventh Session (June 4- June 28, 1968), to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/45, Annex I (1968).

⁹ See generally the debates of the Legal Sub-Committee, SUM.REC. 1–169.

¹⁰ The frustrations of the international community with respect to the failure of the Committee on the Peaceful Uses of Outer Space to prepare a liability convention is well illustrated by U.N.G.A. Res. 2601 (XXIV) of January 16, 1970. After recalling the General Assembly’s earlier resolutions requesting the Committee “to complete urgently the draft agreement,” the resolution stated that the General Assembly:

“Regrets that the Committee … has not yet been able to complete the drafting of a liability convention, a task assigned to it by the General Assembly during the last six years…;

Expresses its deepest dissatisfaction that efforts to complete the convention have not been successful and at the same time urges the Committee … to complete the draft convention on liability in time for final consideration by the General Assembly during its twenty-fifth session;

Emphasizes that the convention is intended to establish international rules and procedures concerning liability for damage caused by the launching of objects into outer space and to ensure, in particular, the prompt and equitable compensation for damage.”

¹¹ The Treaty, which is hereinafter referred to as the Outer Space Treaty is annexed to U.N.G.A. Res. 2222 (XXI) of December 19,1966. The Treaty came into force in October, 1967.

¹² The principal reasons given for the non-participation of the Soviet bloc countries (namely, U.S.S.R., Poland and Czechoslovakia) were the composition of the Committee on the Peaceful Uses of Outer Space and its voting methods. Two other members of the Committee (namely, the United Arab Republic and India) also declined to participate in its work because they felt the participation of the Soviet bloc countries was essential.

¹³ For example, the Polish delegate stated that the Sub-Committee programme “should include first of all the preparation of a set of principles … to guide states in the exploration and use of outer space … ” : SUM.REC. 6, at 7. The position of the U.S.S.R. delegate was that “a declaration limited to basic principles would … provide a firm basis for other agreements” : SUM.REC. 17, at 5. See also statements by the Albanian delegate, SUM.REC. 24, at 3; the Brazilian delegate, SUM.REC. 24, at 7; the Czechoslovakian delegate, SUM.REC. 2, at 6–7, and SUM.REC. 14, at 5; the Japanese delegate, SUM. REC. 22, at 11; the Lebanese delegate, SUM.REC. 3, at 2, and SUM.REC. ai, at 10; the Mongolian delegate, SUM.REC. 6, at 3; the Moroccan delegate, SUM.REC. 24, at 5; the Roumanian delegate, SUM.REC. 13, at 2, and SUM.REC. 18, at 10; and further statements by the U.S.S.R. delegate, SUM.REC. 7, at 7, SUM.REC. 14, at 3, SUM.REC. 15, at 6, and SUM. REC. 48, at 10.

Some delegations, however, questioned the desirability and practicability of formulating general principles, feeling that it would be more advantageous for the Sub-Committee to identify and deal with specific legal problems. See, for example, statements by the Canadian delegate, SUM.REC. 4, at 7; the Sierra Leone delegate, SUM.REC. 6, at 2 and SUM.REC. 13, at 12; the Swedish delegate, SUM.REC. 4, at 6, and SUM.REC. 18, at 9; the U.A.R. delegate, SUM.REC. 3, at 3, and SUM.REC. 10, at 6; and the U.S.A. delegate, SUM.REC. 1, at 9, SUM.REC. 13, at 7, SUM.REC. 14, at 6 and SUM.REC. 15, at 4.

Nevertheless, during the debate of the general principles that should govern the activities of states in outer space, the issues of responsibility and liability played an important role. Thus, while it may be true that during the first and second sessions (in 1962 and 1963) of the Legal Sub-Committee, it was not concerned with the detailed regulation of liability for space object accidents, it is equally true that the Sub-Committee, during those sessions, covered a lot of the ground work involved in the regulation of this problem.

¹⁴ See supra note 5. Perhaps the reason, in part, for delegates stressing the issue of liability is to be found in the statement of the Sierra Leone delegate that the question of liability was of “particular importance to countries not engaged in launching space vehicles for they were potential victims of a space vehicle mishap …”: SUM.REC. 13, at 12.

¹⁵ At the end of 1963 the General Assembly unanimously adopted U.N.G.A. Res. 1962 (XVIII) of December 13, 1962, entitled Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space.

¹⁶ In fact work on the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (hereinafter referred to as the Rescue Agreement) was completed by the Legal Sub-Committee in 1967—well before the Sub-Committee finished its work on the Liability Convention. The Rescue Agreement was approved by the General Assembly in U.N.G.A. Res. 2345 (XXII) of January 10, 1968, and entered into force in December, 1968.

It should be noted that after the completion of its work on the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (see supra note 15), the Legal Sub-Committee’s work on the preparation of a liability convention and a rescue agreement was interrupted in 1966. At the end of 1965 the General Assembly, in U.N.G.A. Res. 2130 (XX) of December 21, 1965, urged the Sub-Committee, inter alia, “to give consideration to incorporating in international agreement form, in the future as appropriate, legal principles governing the activities of States in the exploration and use of outer space,” it being recognized that the Declaration of Legal Principles, like other General Assembly resolutions, lacked the contractually binding force of a treaty. Consequently, the Legal Sub-Committee at its fifth session (July 12-August 4 and September 12-September 13, 1966) resumed its consideration of basic legal principles with the objective of reducing them into a treaty. This objective was successfully achieved and the Outer Space Treaty was the result of the efforts of the Sub-Committee.

¹⁷ See generally SUM.REC. m -69; Report of the Legal Sub-Committee on the Work of its Eighth Session (June 9 – July 4, 1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. А/AC.105/58 (1969); and Report of the Legal Sub-Committee on the Work of its Ninth Session (June 8 – July 3, 1970) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC. 105/85 (1970).

¹⁸ See generally SUM.REC. 152–69 and Report of the Legal Sub-Committee on the Work of its Tenth Session (June 7 – July 2, 1971) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/94 (1971).

¹⁹ U.N.G.A. Res. 2601B (XXIV) of December 16, 1969.

²⁰ The Outer Space Treaty in Articles VI and VII purports to establish the basic principles governing the international responsibility and the international liability of states parties to the Treaty with respect to their space activities. Article VI stipulates:

“States parties to the Treaty shall bear international responsibility for national activities in outer space including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or nongovernmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-govemmental entities in outer space, including the Moon and other celestial bodies, shall require authorisation and continuing supervision by the State concerned. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States parties to the Treaty participating in such organization.”

And Article VII provides:

“Each State party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State party from whose territory or facility an object is launched, is internationally liable for damage to another State party to the Treaty or to its natural or juridical persons by such object or its component parts on the earth, in air space or in outer space, including the Moon and other celestial bodies.”

Unfortunately, these articles, in particular Article VII, lack much in clarity and precision and contain within them the seeds of a number of problems, namely: (a) what flight instrumentalities are covered by the term “object”?; (b) what is meant by the phrase “internationally liable”?; (c) what regime will govern the liability of states engaged in a joint venture — will they be jointly and severally liable or only severally liable?; (d) what is encompassed by the term “damage”?; (e) how is an international organization to be responsible under the Treaty when it cannot become a party to, or even accept the obligations contained in, the Treaty?; and (f) what mechanisms will be used to settle disputes arising when damage is caused? These are some of the questions raised by Articles VI and VII. They have more than academic interest; it is possible that they will continue to govern the space activities of some states, for it is not unlikely that a number of states, parties to the Outer Space Treaty, will not become parties to the Liability Convention.

²¹ Liability Convention, Preamble.

²² A number of restrictions on the territorial and geographical scope of the Liability Convention were proposed, namely: (a) that the Convention should not apply where the damage is caused in the territory of the launching state: see statements by the Czechoslovakian delegate, SUM.REC. 93, at 41; the French delegate, SUM.REC. 93, at 41–42; the Italian delegate, SUM.REC. 93, at 40; the Belgian delegate, SUM.REC. 25, at 6; the Mexican delegate, SUM.REC. 48, at 7; and the U.S.S.R. delegate, SUM.REC. 49, at 4. (The U.S.S.R. delegate claimed that such restriction was in keeping with the universal principle of international law that aliens present in the territory of a state should be treated on an equal footing with the nationals of the state in question: Ibid.); (b) that the Convention should not apply to damage elsewhere than on the surface of the earth: see statement by the Mexican delegate, SUM.REC. 48, at 7–8; (c) that the Convention should not apply to damage in outer space: see statements by the Austrian delegate, SUM.REC. 79, at 5; SUM.REC. 93, at 36 and 43. It would appear, however, that the majority of the members of the Legal Sub-Committee were not impressed by these proposals for it is clear from the text of the Liability Convention that it is to apply in all territories and in all environments. Nevertheless, some question remains as to the application of the Convention to damage on celestial bodies but this is discussed infra, 145–47.

²³ The Convention imposes liability simply “for damage caused … on the surface of the earth … ”: Liability Convention, Art. II.

²⁴ Ibid., Art. II.

²⁵ Ibid., Art. III.

²⁶ Convention on International Civil Aviation, Annex a (Rules of the Air — Definitions), I.C.A.O. Doc. 7300/4.

²⁷ This issue is discussed infra, 159–60.

²⁸ Liability Convention, Art. 1(d).

²⁹ Statement by the Australian delegate, SUM.REC. 106, at 61. See also statements by the Canadian delegate, SUM.REC. 106, at 58–59; the Czechoslovakian delegate, SUM.REC. 106, at 57; the Indian delegate, SUM.REC. 106, at 59; the U.K. delegate, SUM.REC. 106, at 56.

³⁰ The Hungarian draft convention in Article 1(3) defined “space object” as being any device “designed for movement in outer space and sustained there otherwise than by the reaction of air”: U.N. Doc. A/AC.105/C.2/L.10. The Belgian draft conventions contained, in Article 1(b), a very similar definition (though that draft speaks of “space devices”), namely a “space device” is “any device which is intended to move in space, remaining there by means other than the reaction of air”: U.N. Doc. A/AC.105/C.2/L.7. Similarly, the definition of “space object” suggested by the Indian delegate referred to any devices or objects “designed for movement in outer space and intended to sustain there otherwise than by the reaction of air…” : U.N. Doc. A/AC.105/C.2/WG.II/20. Although the terminology used by these definitions does differ, they all agree on the fact that a space object or a space device must be designed for movement in outer space.

³¹ The three main objections raised with respect to the draft definitions of the term “space object” or “space device” were: (a) they were scientifically inaccurate: see statement by the U.K. delegate, SUM.REC. 106, at 56; the statements by the Canadian delegate, SUM.REC. 106, at 58–59; and the U.S.A. delegate, SUM.REC. 106, at 56; (b) the definitions referred to “outer space,” a term which itself had yet to be defined: see statements by the Austrian delegate, SUM.REC. 106, at 60; and the Swedish delegate, SUM.REC. 11, at 2; and (c) to refer to objects not sustained by the reaction of air would exclude from the scope of the Convention a number of objects, for example, sounding rockets, which should be covered by it: see statement by the U.S.A. delegate, SUM.REC. 106, at 56.

³² A definition of a space object that contains these minimal requirements, it is suggested, though not totally satisfactory, would solve a number of problems. First, it enables a distinction to be drawn between man-made space objects and other space objects such as asteroids, meteorites, etc. Second, it refers to the capabilities of the flight instrumentality and not its actual destination. Thus, it would include such objects as sounding rockets and in part avoid the problem of defining precisely the limits of outer space. Third, it does not necessarily exclude hybrid flight instrumentalities which are capable of making use of aerodynamic lift and of operating in areas where aerodynamic lift is not possible. Fourth, it would provide more specific guidelines than does the definition in Article 1(d) of the Liability Convention, to those who will have to determine whether a particular flight instrumentality qualifies as a space object.

³³ It would appear from statements in the Legal Sub-Committee that the Liability Convention was not intended to cover such damage, and that this issue should be left to a further agreement. Although some delegates were of the opinion that the Convention should apply to celestial or “terrestrial” bodies (see statements by the Argentinian delegate, SUM.REC. 138, at 25 and SUM.REC. 150, at 86; the Italian delegate, SUM.REC. 138, at 25; and the Mexican delegate, SUM.REC. 138, at 29), others felt that, though the Convention should apply in outer space, it should be limited in its application to damage caused by one space object to another without referring directly to damage caused on the surface of a celestial body (see statements by the Canadian delegate, SUM.REC. 92, at 31, and SUM.REC. 93, at 46; the U.K. delegate, SUM.REC. 94, at 51). The U.S.S.R. delegate was of the opinion that the question of damage on celestial bodies should be considered at the “appropriate moment,” and until that moment came states should be guided by Article VII of the Outer Space Treaty: SUM.REC. 138, at 29. And see statement by the French delegate, SUM.REC. 138, at 27.

It should be noted that the question of liability for damage caused on the surface of the moon is now receiving some attention from the Legal Sub-Committee which is currently considering a number of proposals for a treaty governing activities on the moon. See Report of the Legal Sub-Committee on the Work of its Eleventh Session (April 10-May 5, 1972) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/101 (1972), at 4-16 and Annex I. On the question of liability, the Russian draft moon treaty, in Article XI, provides that:

“In addition to the provisions of Article VIII of the [Outer Space Treaty] …, a State Party shall be liable for damage resulting from its act or omission or from an act or omission of its personnel on the Moon to the property or personnel of other States Parties on the Moon, unless it is established that the damage occurred through no fault of the said State or of its personnel on the Moon.” Ibid., Annex. I.

This provision imposes a rebuttable presumption of fault where damage is caused on the surface of the moon. The fact that the provision only relates to the moon and not to other celestial bodies should not cause too much concern as it is improbable that man, in the foreseeable future, will be landing on celestial bodies other than the moon.

³⁴ For example, the lunar Rover.

³⁵ This question, though not recognized as a priority problem by the Ad Hoc Committee on the Peaceful Uses of Outer Space (see Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4141, at 67 ( 1959) ), has been the subject of some discussion in the Legal Sub-Committee but as yet no real progress has been made on a definition.

³⁶ This conclusion is supported by the fact that in the drafting of the Outer Space Treaty it was considered necessary expressly to stipulate that the Treaty was not concerned solely with outer space, but also with the moon and other celestial bodies as is illustrated by the full title of the Outer Space Treaty. See supra, 140.

³⁷ Liability Convention, Art. VII.

³⁸ The Hungarian draft convention had provided that “A claim for damage may be made by a State in whose territory the damage has occurred, or in respect of damage suffered by its citizens or legal entities whether in the territory of that State or abroad”: U.N. Doc. A/AC.105/C.2/L.7, Art. IX (1). This provision was interpreted by the Austrian delegate and the Czechoslovakian delegate as enabling a state, in whose territory the damage had occurred, to claim on behalf of all who suffered damage including the nationals of the launching state: see statements by the Austrian delegate, SUM.REC. 49, at 8-9; and the Czechoslovakian delegate, SUM.REC. 98, at 118. However, this was not the result that the Hungarian draft was attempting to achieve (statement by the Hungarian delegate, SUM.REC. 98, at 116–17), and, even if it had been, it was unacceptable to many delegations who felt that nationals of the launching state should not possess any rights under the Convention: see statements by the Austrian delegate, SUM.REC. 48, at 9; the Canadian delegate, SUM.REC. 92, at 31; the French delegate, SUM. REC. 49, at 9–10; the Mexican delegate, SUM.REC. 101, at 146; the Polish delegate, SUM.REC. 93, at 45; the U.K. delegate, SUM.REC. 95, at 65; the U.S.A. delegate, SUM.REC. 94, at 58; and the U.S.S.R. delegate, SUM. REC. 49, at 4.

A problem arises, however, with respect to claims on behalf of persons who possess dual nationality, particularly if one of the nationalities is that of the launching state. The Liability Convention does not make provision for this contingency and it is suggested that the Claims Commission (see infra, 17375) will have to determine whether the bond of nationality between the person who sustains damage and the claimant state is a real and effective one in accordance with the decision in the Nottebohm case, [1955] I.C.J. Rep. 4.

³⁹ It was suggested by the Italian delegate that the rationale for excluding persons participating in the space activity giving rise to their damage was that they would be protected by legislation such as workman’s compensation schemes, etc.: SUM.REC. 93, at 40-41. This may be true of some of the persons falling under Article VII (b) of the Liability Convention but it would not be true for all — particularly observers. Thus, it is suggested that the notion of consent is more apt as a rationale.

⁴⁰ For example, the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, I.C.A.O. Doc. 7364, provides by Article 26 that it “shall not apply to damage caused by military, customs or police aircraft.” And see the draft convention on aerial collisions, I.C.A.O. Doc. LC/Sc/ Aerial Collisions No. 71, at 7–12 (1961).

⁴¹ The Mexican delegate did propose that the Convention not apply to military and police vehicles: SUM.REC. 48, at 7.

⁴² For example, the Communications Satellite Corporation established by the Communications Satellite Act, 1962, 47 N.S.C. 701–44 (1962), which is a privately owned juridical entity.

⁴³ For a discussion of the principles that govern joint space venture, see infra, 165–67.

⁴⁴ Liability Convention, Art. IV.

⁴⁵ To the best of the writer’s knowledge.

⁴⁶ For example, Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, I.C.A.O. Doc. 7364; Convention for the Unification of Certain Rules Relating to International Carriage by Air, I.C.A.O. Doc. 8932; Convention on Third Party Liability in the Field of Nuclear Energy, O.E.E.C. Doc. No. C (60) 93 (1960); International Convention on Civil Liability for Nuclear Damage, I.A.E.A. Doc. No. CN-12/46 (1963); and Convention on Liability of Operators of Nuclear Ships, reproduced in 57 Am. J. Int’lL. 268 (1963).

⁴⁷ See statements by the French delegate, SUM.REC. 78, at 10; the Roumanian delegate, SUM.REC. 91, at 16; the U.K. delegate, SUM.REC. 10, at 5; and the U.S.A. delegate, SUM.REC. 77, at 4–5.

⁴⁸ Statement by the U.S.A. delegate, SUM.REC. 77, at 4–5.

⁴⁹ See statements by the Austrian delegate, SUM.REC. 50, at 6, and SUM.REC. 79, at 5; the Iranian delegate, SUM.REC. 93, at 37; the Polish delegate, SUM.REC. 78, at 17; and the Roumanian delegate, SUM.REC. 78, at 12.

⁵⁰ The French delegate stated that “whenever damage was caused as the result of the launching of a space vehicle in the territory of third States which had neither participated in nor had any influence on the space activities of the launching State or States the system of liability without fault had to be adopted under which the only party which derived advantage from the space vehicle was required to make good the damage. . . . Equity demanded compensation for any damage; justice, however, required that the State whose role had been purely passive should be favoured over the State whose role had been active, particularly as the latter derived benefit from its activities”: SUM.REC. 91, at 9. See also statement by the Iranian delegate, SUM.REC. 93, at 37.

⁵¹ See, for example, Outer Space Treaty, Art. I.

⁵² It should be noted that in the common law system the concept of strict or absolute liability normally goes hand in hand with the principle of loss distribution. That is to say, more often than not the operator or enterprise on whom absolute liability is imposed does not in fact bear the cost involved by the imposition of such liability. Though directly responsible to the person suffering the damage, the operator or enterprise passes the cost of its liability on to the community — the beneficiaries of the activity. With respect to space activities there is no practical or feasible way as yet in which the losses arising from space object accidents can be distributed throughout the world community.

⁵³ See statements by the Italian delegate, SUM.REC. 50, at 3; the Mexican delegate, SUM.REC. 48, at 13; the Roumanian delegate, SUM.REC. 50, at 9; and the U.S.A. delegate, SUM.REC. 77, at 13.

⁵⁴ See statement by the Roumanian delegate, SUM.REC. 50, at 9; and the U.S.A. delegate, SUM.REC. 77, at 13.

⁵⁵ See statement by the U.S.A. delegate, SUM.REC. 77, at 8.

⁵⁶ Numerous objections were raised against limiting a launching state’s liability under the Convention, namely: (a) no limit was provided for in the Outer Space Treaty: see statement by the Canadian delegate, SUM.REC. 117, at 71; and the Australian delegate, SUM.REC. 100, at 39; (b) it was difficult if not impossible to assess a realistic limit, particularly if future advances in space technology had to be taken into account: see statements by the French delegate SUM.REC. 78, at 10; and the Austrian delegate, SUM.REC. 55, at 3; (c) the concept of absolute liability and the principle of unlimited liability go hand in hand: see statement by the French delegate, SUM.REC. 78, at 10; (d) providing a limitation of liability would be to contradict the notion of full compensation: see statements by the Brazilian delegation, SUM.REC. 9a, at 29; and the Bulgarian delegation, SUM.REC. 78, at 16; (e) the absence of a limit would ensure that the victims of space object accidents were placed in the same position as victims of other types of human activity: see statement by the French delegate, SUM.REC. 123, at 125; (f) any limitation of liability could result in launching states exercising less care in their space activities: see statement by the Iranian delegate, SUM.REC. 106, at 53; (g) the imposition of a limit would affect the victim orientation of the Convention: see statement by the Czechoslovakian delegate, SUM.REC. 121, at 103; (h) if there was a limitation of liability it would have to be an extremely high amount and as a result some states would be discouraged from signing the Convention — thus there should be no limit: see statements by the Austrian delegate, SUM.REC. 106, at 53; and the French delegate, SUM.REC. 91, at 11; (i) the analogy drawn with other international agreements, which in fact limit liability with respect to damage caused by other activities, was invalid because, unlike these other activities, no provision exists imposing rights and obligations on states concerning the inspection of, and safety standards for, space activities (see statement by the Indian delegate, SUM.REC. 29–37, at 107, SUM.REC. 77, at il and SUM.REC. 106, at 52; and the Japanese delegate, SUM.REC. 117, at 75) and, unlike the Liability Convention which imposes liability on states, these other international agreements impose liability on private operators and enterprises (see statements by the U.A.R. delegate, SUM.REC. 5, at 3; and the U.K. delegate, SUM.REC. 78, at 7); and (j) there should be no limitation of liability because it was necessary to guard against possible Unlawful uses of outer space: see statement by the Indian delegate, SUM.REC. 29–37, at 107.

On the other hand, the protagonist of a limitation of liability, the U.S.A. delegate, in addition to the arguments already given (see supra, 151–52) claimed that: (a) it was possible to assess a realistic limit and, for those who found it difficult to agree on the precise limit, the Convention could provide for the revision of the limit from time to time to ensure that it was kept in line with the realities of the situation: SUM.REC. 123, at 128; (b) the incorporation of a limitation of liability in the Convention would bring it into line with other international agreements which impose strict or absolute liability for damage: SUM.REC. 106, at 51–52; and (c) the limit would be set at an amount that would cover all foreseeable damage: SUM.REC. 123, at 128.

A number of delegates did indicate that, if a compromise solution had to be found with respect to the problem of limitation of liability, they would be prepared to accept an extremely high limit provided that a claim could be made by a state for any damage it sustained in excess of the limit under the general rules of public international law. See statements by the Australian delegate, SUM.REC. 100, at 139; the Belgian delegate, SUM.REC. 78, at 4; the Canadian delegate, SUM.REC. 117, at 71; and the Iranian delegate, SUM.REC. 126, at 45. This solution, it seems, would have been acceptable to the U.S.A. delegate: see SUM.REC. 117, at 74 and SUM.REC. 121, at 104–05.

It should be noted that the issue of limitation of liability and the question as to whether or not the Liability Convention should extend to nuclear damage (that is, damage caused by nuclear propelled space objects or nuclear components on board a space object) were considered jointly by some delegates. This led to a certain confusion in the discussions. The question of nuclear damage is considered supra at note 63.

⁵⁷ Only the Hungarian and the U.S.A. draft conventions provided for a limitation of liability in those situations in which a launching state was subjected to absolute liability, but although certain figures were mentioned in the course of the debates on this issue (see, for example, statement by the U.S.A. delegate, SUM.REC. 106, at 51–52) at which the maximum limit could be pegged, no actual sums were mentioned in the draft provisions. See the Hungarian draft convention, U.N. Doc. A/AC.105/C.2/L. 10, Art. II(1), and the U.S.A. draft convention, U.N. Doc. A/AC.105/C.2/L.8, Art. IX.

⁵⁸ The U.S.A. draft convention (see U.N. Doc. A/AC.105/C.2/L.8/Rev. 1), in Articles II and III, had recommended that the principle of absolute liability should extend to all damage caused by a space object wherever it was occasioned. (In the first draft convention submitted by the U.S.A. (see U.N. Doc. A/AC.105/C.2/L.8) damage resulting from the collision of space objects was excluded entirely on the basis that in such situations each party should bear their own costs: see SUM.REC. 1, at 9.) This suggestion met with universal disapproval, with the Mexican delegate rightly pointing out that it could lead to ridiculous and absurd results (see SUM.REC. 50, at 3). For example, should a collision occur between a small and inexpensive space object belonging to State A and a highly advanced space object (say a space laboratory) belonging to State B, State A would be in a position where it would have to make considerable reparation to, while recovering a smaller amount from, State B. Such a result would be inequitable and unjust. (However, it would appear that the U.S.A. delegate had in mind not only accidents involving space objects in outer space but also accidents resulting in damage to persons and property on celestial bodies, in suggesting that the principle of absolute liability should apply to damage caused in all environments: see SUM.REC. 93, at 44.)

Similarly, the proposal of the Italian delegate that common fault should be presumed in the case of an accident between two space objects (see SUM.REC. 79, at 10, SUM.REC. 99, at 122 and SUM.REC. 116, at 65), did not meet with approval for, although different in theory to the U.S.A. suggestion, in practice it would more often than not lead to the same result as the application of the concept of absolute liability because of the difficulties that would be faced in adducing evidence to rebut the presumption of fault. It could well be that under this alternative a situation could arise in which it was clearly evident on the facts that State В was at fault but yet, as State A could not prove that it was not itself at fault, owing to evidentiary problems, the result would be that both States A and В would be regarded as liable.

⁵⁹ See statement by the French delegate, SUM.REC. 91, at 10.

⁶⁰ See statements by the Austrian delegate, SUM.REC. 50, at 7; and the Hungarian delegate, SUM.REC. 50, at 7. Cf. statement by the U.S.S.R. delegate, SUM.REC. 50, at 4.

⁶¹ See Liability Convention, Arts. II, III and IV. Of course, under Articles III and IV, which impose liability on a launching state where it has been at fault in causing the damage, the claimant state must also establish fault on the part of the launching state alleged to be responsible.

⁶² Ibid., Art. 1(a).

⁶³ The issue of nuclear damage proved to be one of the stumbling blocks in the Legal Sub-Committee’s path to a Convention. In dealing with the problem of nuclear damage three main solutions were available: first, to exclude nuclear damage from the Liability Convention and to prepare a separate agreement specifically dealing with that issue; second, to exclude nuclear damage from the Liability Convention and to amend the International Convention on Civil Liability for Nuclear Damage, I.A.E.A. Doc. CN-12/46 (1963), so as to include within its scope nuclear damage caused by space objects; or, third, to include nuclear damage within the Liability Convention. It should here be noted that delegates were not agreed as to whether nuclear damage caused by space objects was covered by the Inter national Convention on Civil Liability for Nuclear Damage: see statements by the Brazilian delegate, SUM.REC. 94, at 44; the Czechoslovakian delegate, SUM.REC. 135, at 141; the Hungarian delegate, SUM.REC. 93, at 46; the Iranian delegate, SUM.REC. 126, at 146; and the U.K. delegate, SUM.REC. 93, at 47.

Of the draft conventions only that of the Hungarian delegation provided for the exclusion of nuclear damage from its scope: see U.N. Doc. A/AC. 105/C.2/L. 10, Art. II ( 1 ); the others were silent on this issue. The Hungarian draft received the support of the Soviet bloc countries (with the exception of Czechoslovakia) and Austria for a variety of, and sometimes contradictory, reasons. It was felt by the delegates from these countries that nuclear damage should be excluded from the Liability Convention because: (a) a limitation of liability would thereby be rendered unnecessary: see statement by the Bulgarian delegate, SUM.REC. 78, at 16; and compare the statement of the Polish delegate, SUM.REC. 106, at 54; (b) it would simplify the task of setting a limit on liability: see statement by the Austrian delegate, SUM.REC. 49, at 5; (c) nuclear damage caused by space activities was likely to be so different from the other types of damage caused by such activities that it would be simpler to deal with it in a separate convention: see statement by the Austrian delegate, SUM.REC. 49, at 5; and the U.S.S.R. delegate, SUM.REC. 94, at 52; (d) it was in accord with established practice to deal with nuclear damage separately, as was illustrated by the various nuclear liability conventions (these conventions are listed supra at note 46) : see statement by the Hungarian delegate, SUM.REC. 93, at 38-39; and the U.S.S.R. delegate, SUM.REC. 49, at 4; (e) the risk of nuclear damage was minimal and therefore it was not necessary to deal with it immediately: see statements by the Bulgarian delegate, SUM.REC. 78, at 16; the Hungarian delegate, SUM.REC. 94, at 57; and the U.S.S.R. delegate, SUM.REC. 94, at 52; and (f) the best solution might be to deal with damage arising from all nuclear activities in a single convention: see statement by the Bulgarian delegate, SUM.REC. 78, at 16. To placate the fears of some delegates regarding the exclusion of nuclear damage the Hungarian delegate indicated that, though the Liability Convention should not cover such damage, a launching state would nevertheless be liable independently of the Convention should one of its space objects be the cause of nuclear damage: see SUM.REC. 48, at 6 and SUM.REC. 79, at 11.

These arguments did not convince the majority of the members of the Legal Sub-Committee who took the view that the Liability Convention should extend to nuclear damage for: (a) the Outer Space Treaty did not provide for the exclusion of such damage: see statements by the Australian delegate, SUM.REC. 116, at 58; the Brazilian delegate, SUM.REC. 118, at 80; the Canadian delegate, SUM.REC. 94, at 53–54; the French delegate, SUM.REC. 123, at 124–25; the Iranian delegate, SUM.REC. 126, at 145; and the U.K. delegate, SUM.REC. 94, at 51 and SUM.REC. 106, at 53; and see the statement of the Czechoslovakian delegate, SUM.REC. 118, at 79; (b) a claimant state would face serious difficulties in distinguishing between nuclear damage and damage caused by the impact, or the exploding, of a space object: see statements by the Canadian delegate, SUM.REC. 94, at 53–54; and the U.S.A. delegate, SUM.REC. 49, at 3; (c) nuclear damage does not arise solely through the effects of radiation but also from heat, light and explosions and it is thus very similar in many respects to non nuclear damage: see statement by the Canadian delegate, SUM.REC. 94, at 58; (d) unlike other types of nuclear hazards where the risks could be assessed and which were accepted by potential victims, nuclear damage caused by a space object was impossible to foresee and even more impossible to assess in advance: see statement by the French delegate, SUM.REC. 123, at 124–25; and (e) the compensation being sought by the claimant state would be no different to that payable for other types of damage: see statement by the U.S.A. delegate, SUM.REC. 127, at 154. And see generally statements by the Argentinian delegate, SUM.REC. 116, at 64; the Belgian delegate, SUM.REC. 48, at 9; the Indian delegate, SUM.REC. 77, at 12 and SUM.REC. 108, at yi; the Italian delegate, SUM.REC. 48, at 6 and SUM.REC. 93, at 40; the Mexican delegate, SUM.REC. 48, at 8 and 13; and the Mongolian delegate, SUM.REC. 123, at 131.

Some delegates, searching for a compromise solution, indicated that they would be prepared to accept a limitation of liability with respect to nuclear damage: see statements by the Australian delegate, SUM.REC. 93, at 46; the Belgian delegate, SUM.REC. 49, at 6 and 7; and the Canadian delegate, SUM.REC. 93, at 45. Another delegate indicated his willingness to accept the exclusion of nuclear damage from the Convention “if the space Powers gave an assurance in the form of a declaration which would be part of the Convention that they would not use nuclear material or place it aboard space objects”: see statement by the Indian delegate, SUM.REC. 108, at 71. However, it was finally accepted by all that not only should nuclear damage not be excluded from the Convention, but also that there should be no limitation of liability with respect to such damage.

One point of interest which was raised by several delegates was that nuclear damage could arise either by a space object damaging a nuclear installation, ship, etc., on the surface of the earth, or by a space object carrying a nuclear reactor or isotope battery being involved in an accident. See statements by the Czechoslovakian delegate, SUM.REC. 125, at 141; and the Japanese delegate, SUM.REC. 91, at 15, and SUM.REC. 117, at 75. From the lack of discussion of this point, however, it can only be assumed that the members of the Legal Sub-Committee did not consider this distinction of importance. But it should be borne in mind that where nuclear damage is caused by a space object destroying a nuclear installation, ship, etc., a claimant state may be able to elect as to whether it will proceed under the Liability Convention or the relevant nuclear liability agreement. See infra, 177.

⁶⁴ Biological, chemical and radiological contamination raise a problem, in that the damage resulting therefrom may not be apparent immediately or even within a reasonable time. This was foreseen by the Legal Sub-Committee which made allowance for delayed damages in the provisions dealing with time limits for the submission of claims. See infra, 170–71.

⁶⁵ This issue was briefly discussed in the Legal Sub-Committee. Some delegates were of the opinion that no recovery should be allowed for indirect damage: see statements by the Hungarian delegate, SUM.REC. 103, at 24; and the U.S.S.R. delegate, Ibid., ai. Others felt that recovery for such damage should be permitted: see statements by the Italian delegate, ibid., 22; and the Japanese delegate, ibid., 23. The majority opinion, however, appeared to be that no mention should be made of indirect damage in the Convention and that the question be left open to be dealt with as individual cases arose: see statements by the Indian delegate, ibid., 22; the Japanese delegate, ibid., 21; the U.K. delegate, ibid., 22; and the U.S.A. delegate, ibid., 22. And see the statement of the French delegate, ibid., 24.

⁶⁶ This approach it is suggested is the most equitable in that it provides for maximum flexibility in determining individual cases. For example, it may well be thought that, on the one hand, the relatives of a patient who dies because his doctor was prevented from providing him with medical attention by a space object accident should not be entitled to compensation under the terms of the Convention; whereas, on the other hand, the victims (both passengers and third parties) of a plane crash which resulted from the space object of one state, through the fault of that state, causing damage to a navigational satellite thereby rendering it inoperative, should be held to be entitled to damages.

⁶⁷ See supra, 144–47.

⁶⁸ Liability Convention, Art. I(d).

⁶⁹ This conclusion is supported by the terminology of Articles 1(d) and Articles II and III and IV of the Liability Convention particularly since the latter two articles speak of damage “to a space object… or to persons or property on board such space object....”

⁷⁰ Of the various draft conventions (see supra at note 8) only that submitted by the Italian delegate attempted to include within the definition of “space object” the payload of, and property on board, a space object in certain circumstances. That draft provided in Article 2(5) that “For the purposes of this Convention . . . objects thrown or launched from space objects shall be deemed to be space objects.” See U.N. Doc. A/AC.105/C.2/L.40. This definition does not cover the situation where the payload of, and the property on board, a space object become accidentally separated from it.

One other delegation, namely that of the U.S.A., raised the issue of damage being caused by the payload of a space object and stated that perhaps special provisions were needed in the Convention to cover this situation: see SUM.REC. 106, at 56.

⁷¹ For example, the copper needles placed in orbit by Project West Ford.

⁷² For example, the X. 15.

⁷³ It should be noted that definitions of “aircraft” in current use (see, for example, supra at note 26) do not exclude flight instrumentalities that are so designed as to be able to operate in outer space but rely on aerodynamic lift while passing through the atmosphere; nor does the definition of “space object” in the Liability Convention exclude flight instrumentalities that are so designed as to be sustained by the reactions of air while passing through the atmosphere prior or subsequent to passage through outer space.

⁷⁴ If the flight instrumentality is classified as an “aircraft,” the liability of the “launching state” would be determined either: (a) in accordance with general principles of international law — and it is doubtful whether the concept of absolute liability constitutes one of these principles; (b) the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, I.C.A.O. Doc. 7364, if both the “launching state” and the claimant state are parties to that Convention, and the flight instrumentality is not a military customs or police aircraft —. in which case the “launching state” would be able, for example, to benefit from the limitation of liability imposed by that Convention; or (c) in accordance with such special agreements regulating liability, if any, which exist between the states concerned.

⁷⁵ If the flight instrumentality is classified as a “space object” and both the launching state and the claimant state are parties to the Liability Convention, then the former will benefit from all the provisions of that convention, in particular from the concept of absolute liability and the absence of a limitation of liability.

⁷⁶ Some concern was expressed over the use of the term “gross negligence.” Some delegates appeared to be of the opinion that it was a “term of art” which was not even completely understood in those jurisdictions in which it was in use: see statements by the Canadian delegate, SUM.REC. 29–37, at 36; the Italian delegate, Ibid., 68; and the Japanese delegate, ibid., 63. The U.K. delegate did not agree, claiming that the concept was well understood: see SUM.REC. 98, at 114.

At the best it can be said that “gross negligence” differs from negligence not in kind but in degree. The term signifies something more than mere carelessness, inattention or inadvertence (that is, mere negligence) and something less than conscious indifference to consequences (that is, intent to do harm).

⁷⁷ Brituh Guyana-Venezuela Boundary Arbitration, 112 Parl. Papers 35 (1899). And see infra, 164–65.

⁷⁸ See infra, 168–69.

⁷⁹ A number of delegates stressed that there should be no exoneration from liability for “unlawful activities” in outer space: see, for example, statements by the Hungarian delegate, SUM.REC. 26, at 5; the Indian delegate, SUM. REC. 77, at 12; the Italian delegate, SUM.REC. 99, at 123–24; and the U.S.S.R. delegate, SUM.REC. 50, at 11, and SUM. REC. 98, at 114.

⁸⁰ The act of a third party was suggested as a ground for exoneration by the Polish delegate, SUM.REC. 78, at 17; and the Canadian delegate, SUM. REC. 98, at 115.

⁸¹ The question of exoneration on the ground of force majeure received some attention in the Legal Sub-Committee. However, it was felt by the majority that to allow exoneration on this ground would be to deviate from the main objective of the convention (see statements by the Belgian delegate, SUM. REC. 50, at 5; and the U.S.A. delegate, ibid., at 6) and that the only relevant question was: “but for the launching would the damage have occurred?” (see statements by the U.K. delegate, SUM.REC. 50, at 8; and the Indian delegate, SUM.REC. 77, at 10).

Only the Soviet bloc delegates were in favour of permitting exoneration on the ground of force majeure. See statements by the Bulgarian delegate, SUM.REC. 78, at 15; the Hungarian delegate, SUM.REC. 50, at 7; the Polish delegate, SUM.REC. 78, at 17; and the U.S.S.R. delegate, SUM.REC. 50. at 5.

⁸² This may be true but at the same time it must be conceded that the Bulgarian delegate made a valid point when, in speaking in favour of allowing exoneration from liability where the damage resulted from a natural disaster, he said : “… if space activities were conducted for the benefit and in the interests of all mankind, the attendant risks should be shared by all States. To confine liability to the States engaging in such activities would have a discouraging effect on their endeavours …”: SUM.REC. 78, at 15.

⁸³ Liability Convention, Art. i(a). This definition has its origin in the Outer Space Treaty, Article VII of which imposes liability for damage caused by space activities on the same categories of states.

Impliedly included within this definition are the state of registry of the space object and the state which has the ownership, possession or control of the space object. But this definition does not include states which participate (for example, by sending observers) in a launching, or which benefit from the launching of a space object.

⁸⁴ Although it was generally recognized that a state from whose territory or facility a space object was launched should be liable for damage caused by that space object, there was some question as to the nature of that liability. The French delegate proposed that states which launched or procured the launching of a space object should be primarily liable, while states which lent their territories or facilities for the launching of space objects should bear only secondary liability. See U.N. Doc. A/AC.105/C.2/L.36 and Rev. 1 and 2. Under this proposal states which lent their territory or facilities to another state would be held liable only where the state which launched or procured the launching of the space object could not be identified or was not a party to the Liability Convention. The French delegate claimed in support of the proposal that it furthered the interests of the international community since, in the absence of such a hierarchy of liability, states would be dissuaded from lending their territories and facilities for space activities: see SUM.REC. 95, at 70. It was also argued by other delegates that it would be unfair to impose primary liability on a state which did not play an active role in a space venture, confining itself to lending its territory or facilities for the launching of a space object. See, for example, the statement of the Brazilian delegate, SUM.REC. 92, at 29.

However, it was pointed out that rarely would a state which lent its territory or facilities to another state, for the launching of a space object, play a truly passive role (see statements by the Australian delegate, SUM. REC. 96, at 89; and the U.S.A. delegate, ibid., 83-84) or fail to derive any benefit from the use of its territory or facility (see statement by the U.S.A. delegate, Ibid., 83–84); and that, in any event, it was open for such state to enter into an agreement with the state to whom it had lent its territory or facility regulating inter se the question of liability (see statements by the Indian delegate, ibid., 92; and the U.S.A. delegate, SUM.REC. 97, at 98–99).

⁸⁵ See infra, 179–82.

⁸⁶ Article VI.

⁸⁷ British Guyana-Venezuela Boundary Arbitration, 112 Parl. Papers 35 (1899).

⁸⁸ Cheng, Bin, General Principles of Law as Applied by International Courts and Tribunals 193 (1953).Google Scholar

⁸⁹ An unsuccessful effort was made by Soviet bloc delegates to prevent the participation of private entities in space activities “in order to ensure that no irresponsible acts were perpetrated …” : see statement by the U.S.S.R. delegate, SUM. REC. 17, at 7. And see statements by the Czechoslovakian delegate, SUM. REC. 8, at 6, and SUM.REC. 20, at 9; and further statements by the U.S.S.R. delegate, SUM.REC. 7, at 5 and 12, SUM.REC. 22, at 4-5, and SUM.REC. 28, at 13.

⁹⁰ Where a claimant state elects to proceed against more than one of the launching states involved, the aggregate amount of compensation it recovers cannot exceed the amount of compensation it would have been entitled to if only one launching state had been responsible for the damage.

⁹¹ Liability Convention, Art. V(2).

⁹² Ibid. For an example of an agreement containing provisions appertaining to the apportionment of liability among states involved in a joint venture, see Agreement Governing the Conduct in Australia and Territories under the Authority of Australia of Operations By the European Organisation for the Development and Construction of Space Vehicle Launchers (reproduced in fi965]Y.B.A. & S.L. 468) under Article 8(1) of which the Organization undertakes to indemnify Australia against: “a) any loss or damage suffered by the Commonwealth, and b) liability of any kind in respect of claims against the Commonwealth, its servants or agents for loss, damage or injury that occurs in any place, whether within or outside Australia arising howsoever out of any activity carried out by or on behalf of the Organization in Australia.” Although this agreement involves an international intergovernmental organization and states, similar agreements no doubt will be concluded between states.

⁹³ Liability Convention, Art. IV.

⁹⁴ From the point of view of a common law jurist.

⁹⁵ In such situations it is highly improbable that an apportionment agreement will exist between the launching states involved.

⁹⁶ Liability Convention, Art. IV(a).

⁹⁷ Ibid.

⁹⁸ See supra, 147–49.

⁹⁹ See infra, 170–71.

¹⁰⁰ See statement by the Canadian delegate, SUM.REC. 96, at 79–80.

¹⁰¹ Liability Convention, Art. X(1).

¹⁰² See infra, 179–81.

¹⁰³ Liability Convention, Art. XXII(4).

¹⁰⁴ Ibid., Art. X(1).

¹⁰⁵ Ibid., Art. X(2).

¹⁰⁶ Ibid.

¹⁰⁷ Ibid., Art. X(3).

¹⁰⁸ This formula was initially proposed by the U.S.A. delegation in its draft convention: see U.N. Doc. A/AC.105/C.2/L.8/Rev. 3.

¹⁰⁹ The mam alternative proposals were that the quantum of compensation should be assessed according to: (a) the law of the claimant state: see statements by the Canadian delegate, SUM.REC. 121, at 10; and the Belgian delegate, SUM.REC. 25, at 7; (b) the law of the place where the damage occurred: see statements by the Argentinian delegate, SUM.REC. 121, at 105; the Australian delegate, SUM.REC. 100, at X38-39; the Brazilian delegate, SUM.REC. 118, at 81; the Belgian delegate, SUM.REC. 25, at 7; the French delegate, SUM.REC. 54, at 7 and SUM.REC. 121, at юг; the Iranian delegate, SUM.REC. 117, at 69; the Roumanian delegate, SUM.REC. 54, at 11; the Sierra Leone delegate, SUM.REC. 78, at 14; and the Swedish delegate, SUM.REC. 54, at 10; and (c) the law of the respondent state: see statements by the Czechoslovakian delegate, SUM.REC. 54, at 9; the Hungarian delegate, SUM.REC. 99, at 128-29; and the U.S.S.R. delegate, SUM.REC. 100, at 137-38. Various combinations and permutations of applicable laws were also suggested: see, for example, statements by the Bulgarian delegate, SUM.REC. 122, at 113; and the Polish delegate, SUM.REC. 78, at 17-18.

The use of the law of the claimant state proved to be unacceptable because: (a) of the possibility that a multiplicity of laws could be involved in assessing the quantum of compensation payable in any given space object accident as it was more than likely that there could be several claimant states; (b) it failed to provide a uniform method of assessing compensation in all space object accidents; (c) the sovereignty of the launching state would be violated if the extent of its liability were determined according to the law of another state; (d) the launching state’s liability could too easily be extended by special legislation being enacted by the claimant state. The law of the place where the damage occurred, while meeting to a large extent the first of the above criticisms, was open to all the other objections raised in relation to the use of the law of the claimant state. This was also the position with regard to the use of the law of the respondent state (although with respect to criticism (d), it would be a question of the launching state diminishing its liability through special legislation). However, two additional criticisms were also raised in relation to this last suggestion: (a) it would lead to the anomalous situation of a state determining, by its own national law, the extent of its international obligations; and (b) considerable confusion would arise in the case of joint ventures in selecting the national law to be applied.

¹¹⁰ This was a cause of concern on the part of a number of delegates: see statement by the Belgian delegate, SUM.REC. 54, at 7–8; the Hungarian delegate, ibid., 9; the Mexican delegate, SUM.REC. 48, at 8; the Roumanian delegate, SUM.REC. 54, at 11 and 13; and the Sierra Leone delegate, SUM.REC. 74, at 14.

¹¹¹ See statements by the Australian delegate, SUM.REC. 100, at 138-39; and the U.S.S.R. delegate, ibid., 137–38.

¹¹² See statements by the Australian delegate, Ibid., 138–39; the Czechoslovakian delegate, ibid., 134–35; the Hungarian delegate, SUM.REC. 99, at 128–39; the Italian delegate, ibid., 130; the U.S.A. delegate, SUM.REC. 48, at 4–5; and the U.S.S.R. delegate, SUM.REC. 54, at 7, and SUM.REC. 100, at 137–38.

¹¹³ This point appeared acceptable to all the members of the Legal Sub-Committee. This conclusion is supported by Article XXIII (2) of the Liability Convention which provides that “No provision of this Convention shall prevent States from concluding international agreements re-affirming, supplementing or extending its provisions.”

¹¹⁴ Liability Convention, Art. XIII.

¹¹⁵ Ibid., Art IX.

¹¹⁶ Ibid.

¹¹⁷ Ibid., Art. XIV.

¹¹⁸ Ibid., Art’s. XV(i) and XVII. Article XVII provides in part that “No increase in membership shall take place by two or more claimant States or launching States being joined in any one proceeding before the Commission.”

¹¹⁹ Ibid.

¹²⁰ Ibid., Art’s. XV(a) and XVII.

¹²¹ Ibid. The Convention, in Article XVI(2), also stipulates that: “Any vacancy which may arise in the Claims Commission for whatever reason shall be filled by the same procedure adopted for the original appointment.”

¹²² Article XIV provides that “… the parties concerned shall establish a claims commission at the request of either party.” (Italics added.)

¹²³ Liability Convention, Art. XVI(1).

¹²⁴ Ibid., Art. XVI(3) and (4).

¹²⁵ Ibid., Arts. XVIII and XIX(1).

¹²⁶ Ibid., Art. XIX(2).

¹²⁷ Ibid., Art. XVI(5).

¹²⁸ Ibid., Art. XIX(3).

¹²⁹ Ibid., Art. XlX(2).

¹³⁰ Ibid., Art. XIX(4).

¹³¹ Ibid.

¹³² Ibid., Art. XIX(2).

¹³³ This provision was inserted as a compromise solution. Although delegates made various proposals regarding the forum for the settlement of disputes, the truly contentious issue of the competence of the tribunal chosen to hand down final and binding decisions. As is usually the case, the Soviet bloc countries refused to accept a provision for compulsory adjudication of disputes leading to binding decisions: see statements by the Bulgarian delegate, SUM.REC. 112, at 115, and SUM.REC. 148, at 67–68; the Czechoslovakian delegate, SUM.REC. 29-37, at 89; the Hungarian delegate, SUM. REC. 120, at 99, SUM.REC. 121, at 104, and SUM.REC. 128, at 164; the Polish delegate, SUM.REC. 148, at 64; the Roumanian delegate, SUM.REC. 78, at 12, SUM.REC. 116, at 64, and SUM.REC. 123, at 127–28; and the U.S.S.R. delegate, SUM.REC. 48, at 11, and SUM.REC. 122, at 118. If the compromise had not been reached, it is likely that there would have been no liability convention.

¹³⁴ See statements by the Belgian delegate, SUM.REC. 117, at 73; the Canadian delegate, SUM.REC. 117, at 71; the Iranian delegate, SUM.REC. 126, at 145; the Japanese delegate, SUM.REC. 148, at 62; and the Swedish delegate, ibid., 70.

¹³⁵ See statements by the Brazilian delegate, SUM.REC. 147, at 54; the Bulgarian delegate, SUM.REC. 148, at 67–68; and the Hungarian delegate, SUM.REC. 121, at 104.

¹³⁶ See statement by the Brazilian delegate, SUM.REC. 147, at 54. It is interesting to note that during the discussions of the Rescue Agreement and the Liability Convention in the Legal Sub-Committee, it was suggested that the obligation to return a space object should be made conditional on the launching state paying compensation for any damage which that space object may have caused: see statements by the Australian delegate, SUM.REC. 29–37, at 34; the French delegate, SUM.REC. 86, at 14; and the Japanese delegate, SUM.REC. 29–37, at 64. The U.S.S.R. delegate, on the other hand, favoured “the inclusion of provisions to the effect that claims for compensation should not constitute grounds for the sequestration of, or the application of enforcement measures to, a spaceship of a foreign State”: SUM.REC. 41, at 5.

¹³⁷ U.N.G.A. Res. 2777 (XXVI) of November 11, 1971.

¹³⁸ Liability Convention, Art. XI.

¹³⁹ It avoids both the delay normally involved in the adjudication of cases in national tribunals and the possibility that a victim may not receive full compensation because a state has enacted legislation limiting its liability for damage caused by national space activities.

¹⁴⁰ Liability Convention, Art. XI(2).

¹⁴¹ Ibid.

¹⁴² Ibid., Art. XXI.

¹⁴³ Ibid.

¹⁴⁴ Indirectly the extent of the launching state’s liability may be affected in that it may have missed an opportunity to lessen the damage caused by its space object.

¹⁴⁵ See supra, 161.

¹⁴⁶ Liability Convention, Art. XXV.

¹⁴⁷ Ibid., Art. XXVI

¹⁴⁸ Ibid., Art. XXVII.

¹⁴⁹ See Statement by the chairman of the Legal Sub-Committee, SUM.REC. 52, at 12, and SUM.REC. 54, at 6.

¹⁵⁰ See statement by the chairman of the Legal Sub-Committee, SUM.REC. 120, at 94.

¹⁵¹ One point of contention which was evident among the members of the Legal Sub-Committee concerned the relationship of international intergovernmental organizations to the Liability Convention. One group of delegates, namely those from the Soviet bloc, took the view that it was not necessary for an organization to be a party to the Convention for it to be bound by the provisions of the Convention; it was sufficient for the Convention merely to declare that organizations were subjected to its terms as had been done in Article VI of the Outer Space Treaty: see statements by the Bulgarian delegate, SUM.REC. 52, at 6, and SUM.REC. 78, at 16; the Hungarian delegate, SUM.REC. 52, at 11, SUM.REC. 54, at 4, SUM.REC. 96, at 87, and SUM.REC. 105, at 47; the Polish delegate, SUM.REC. 78, at 17, and SUM.REC. 120, at 97; the Roumanian delegate, SUM.REC. 51, at 12–13, and SUM.REC. 53, at 11; and the U.S.S.R. delegate, SUM.REC. 29–37, at 86; SUM.REC. 52, at 3–4 and SUM.REC. 105, at 41–42. These delegates regarded organizations as entities inferior to states on the international plane and, therefore, were not prepared to let them either become parties to the Convention or enjoy the same status as states even though it was only for a limited purpose. See generally, ibid. The other group of delegates took the stand that, for an organization to be bound by the Convention, it was necessary for it to become a party to the Convention or, at least, to declare its acceptance of the rights and obligations under the Convention. See statements by the Australian delegate, SUM.REC. 52, at 3 and 10–11, SUM.REC. 116, at 59, and SUM.REC. 120, at 94; the Canadian delegate, SUM.REC. 52, at 9, and SUM.REC. 117, at 70; the Italian delegate, SUM.REC. 52, at 10; the Japanese delegate, SUM.REC. 105, at 47; the Swedish delegate, SUM.REC. 52, at 5; and the U.K. delegate, SUM.REC. 52, at 4–5. In the end, the formula that had been conceived for the Rescue Agreement was accepted by all: see Rescue Agreement, Art. 6.

It should be noted that an international agreement cannot impose obligations on states which are not parties to the agreement without their consent; and it is highly questionable whether an international agreement can impose obligations on international organizations which are not parties to it or have not, through some act of their own, accepted the obligations under it. If this were not the position, states would find themselves indirectly bound by the provisions of an agreement merely by virtue of their membership in an organization which had not itself become a party to, or even voluntarily assumed the obligations under, the agreement, with the result that what could not be accomplished directly would have been achieved indirectly.

¹⁵² International intergovernmental organizations cannot, inter alia, be signatories to the Convention, accede to it, present claims on their own behalf under it, or withdraw from it of their own initiative. See Liability Convention, Art. XXII ( 1 ) and (4).

¹⁵³ Ibid., Art. XXII (a).

¹⁵⁴ Ibid., Art. XXII (3). The question of the relationship of international intergovernmental organizations and their member states when liability is in curred by an organization, was another point of contention in the Legal Sub-Committee. Two main proposals on this point were made: (a) that the organization and its members should be jointly and severally liable (in the strict sense of the concept of joint and several liability) : see statement by the Bulgarian delegate, SUM.REC. 149, at 79; the Hungarian delegate, SUM.REC. 96, at 87; the Polish delegate, SUM.REC. 78, at 17; the Roumanian delegate, SUM.REC. 51, at 12–13, and SUM.REC. 116, at 64; and the U.S.S.R. delegate, SUM.REC. 53, at 8-9, and SUM.REC. 105, at 41–43; (b) that while the organization and its member states should all be liable, primary responsibility for the payment of compensation should rest with the organization, its member states only bearing secondary responsibility: see statements by the Brazilian delegate, SUM.REC. 118, at 80; the Canadian delegate, SUM.REC. 59, at 9, and SUM. REC. 117, at 70; the French delegate, SUM.REC. 116, at 62; the Indian delegate, SUM.REC. 96, at 93; the Iranian delegate, SUM.REC. 117, at 69; the Italian delegate, SUM.REC. 91, at 19; the Japanese delegate, SUM.REC. 105, at 47; the Swedish delegate, SUM.REC. 93, at 97; the U.K. delegate, SUM.REC. 52, at 12; SUM. REC. 54, at 5, SUM.REC. 78, at 7, and SUM.REC. 98, at 110-11; and the U.S.A. delegate, SUM.REC. 38, at 7, and SUM.REC. 52, at 9. This latter suggestion, having gained the support of the majority of the members of the Legal Sub-Committee, was incorporated in the Convention.

¹⁵⁵ Liability Convention, Art. XXII (4).

¹⁵⁶ These articles are reproduced in supra note 20.

¹⁵⁷ Liability Convention, Preamble. And see U.N.G.A. Res. 2601B (XXIV) of January 16, 1970 (the relevant extract from which is reproduced in supra note 10).

¹⁵⁸ See supra, 164–65.

¹⁵⁹ See supra, 158–59.

¹⁶⁰ See supra, 159–60.

¹⁶¹ See supra, 165–67.

¹⁶² See supra, 169–70.

¹⁶³ See supra, 175.