Convention on Liability under International Law for Damage Caused by Space Objects

The Convention on Liability under International Law for Damage Caused by Space Objects , or Space Liability Convention for short , is an international agreement on the liability of states for damage caused by objects brought into space by them. In addition, the Space Registration Convention obliges the contracting states to provide the Secretary-General of the United Nations with certain information , which in the event of damage is intended to enable the identification of a space object launched into orbit or beyond.

The agreement was signed on 29. March 1972 closed and is in the Outer Space Treaty provisions contained to the Space Liability concrete. It is disputed whether the provisions of the convention take precedence over the space treaty as leges speciales or whether they can be applied side by side.

By 2017 it had been ratified by 106 states, including all leading space nations, and 19 others had signed but not ratified it. Czechoslovakia terminated the agreement on January 1, 1993, the United Kingdom of Hong Kong on June 11, 1997. After the Federal Republic of Germany (1975), the European Space Agency ESA (1976) and the European telecommunications satellite organization EUTELSAT (1987) also joined the agreement .

Summary

Content of the Convention

The convention consists of 28 articles. It regulates various bases for claims and other material liability provisions, the assertion of damages and the procedure to be followed.

If no agreement can be reached through diplomatic channels in the event of damage, a damage commission can be called. Their decision on the reason and amount of the compensation is only binding if the parties have previously agreed. Otherwise the saying is only of a recommendation.

The convention is not final, but can be expanded and supplemented by other international agreements.

Eligibility requirements

While Art. II WHÜ a no-fault strict liability statuiert regulates Art. III, a fault-based liability .

According to Art. II, a state that launches a space object or from whose territory such an object is launched is unconditionally liable for the payment of damages for damage caused by this object on the surface of the earth or to aircraft in flight. If a space object causes damage to another space object elsewhere than on the earth's surface, or if personal injury or property damage is caused on board such, liability shall only apply if the damage was caused intentionally by the state or by persons for which the state is responsible or was negligent.

According to the legal definition in Art. I lit.a, damage within the meaning of the Convention is "death, bodily harm or other impairment of health as well as loss or damage to the property of a state or a natural or legal person or the property of an international intergovernmental organization". A material or immaterial legal good of a certain legal subject must be affected.

Environmental damage is not directly covered by this definition. Nevertheless, Canada justified its claim against the Soviet Union for the damage that occurred after the crash of the nuclear-powered satellite Kosmos 954 .

As a result of this event, a UN resolution was adopted in 1992 to protect the environment . It concerns the use of nuclear energy sources ("Nuclear Power Sources" - NPS) in space and above all lays down rules about safety requirements, avoidance and notification obligations. The resolution was improved and updated by the "Safety Framework" 2009.

Legal consequences

The claim is acc. Art. XII and XIII are aimed at compensation in cash and can be paid in the currency of the claiming state or that of the state liable for compensation. The injured party is to be treated as if the damage had not occurred ( restitution in kind ). In the event of a disaster, the damaging party should also provide actual assistance to the damaged state (Art. XXI).

The state concerned is liable to pay, even if the harmful space activity was carried out by a private operator. In such cases, the Austrian Space Act provides for the state to have recourse to the private operator. To cover his liability for personal injury or property damage, he must prove that he has taken out liability insurance for a certain minimum sum insured.

On State Responsibility in International Law

A look at the general problem of state responsibility in international law is not only necessary in order to arouse understanding for the regulation of international law responsibility and liability for activities in space, but also shows that conversely this regulation, quite apart from its practical importance, of of particular academic interest in the general issue of state responsibility. In the Space Liability Convention, there is one of the few cases in which an original international strict liability of the state is established, which is to be explained in more detail below.

The issue of state responsibility is often referred to as one of the most controversial areas of international law. This assertion can be traced back not only to factual aspects, but also to terminological ones. Almost every concern with this topic is based on a specific understanding of the term, which is often shaped by national legal ideas. While in the relevant codification efforts of the International Law Commission (ILC) and in the general English terminology for liability or responsibility for unlawful behavior, the term "responsibility" is used and the term "liability" is used for the responsibility for damage caused by lawful behavior , the term state responsibility used in the German-speaking area encompasses both areas. There is a confusing variety of terminology (not only) within the German-speaking area for the liability principles covered by this broad concept of state responsibility.

Fault and success liability

In the area of ​​liability for injustice (responsibility), a distinction can be made between negligence and success liability . The fault liability also requires that the "perpetrator" is also at fault, intent or negligence . On the other hand, the liability for success already applies in the event of a mere violation of the law. While one can in any case assume in the case of omission offenses that responsibility under international law only arises if the competent body has not exercised the necessary due diligence, in the context of liability for illegal behavior in the case of criminal offenses, it is highly controversial whether in the sense of the traditional Doctrine of fault liability the international legal responsibility of a state should always be made dependent on a fault or, according to the emerging doctrine of success liability, should not be based on fault, but only on the objective violation of an international law norm. It is possible, in exceptional cases, to claim that the acting body is at fault. The core of the controversy therefore revolves around the question of whether it is part of the injustice that it was committed intentionally or negligently.

Strict liability

The Outer Space Convention lays down the sub-exception in Article VI, Paragraph 2, according to which any exemption from liability is excluded in cases in which the damage is caused by space activity that is not in accordance with the relevant international legal provisions. Together with Art. I of the Space Treaty, which stipulates the freedom to explore and use space, including the moon and other celestial bodies, as well as Paragraph 3 of the Preamble to the Space Liability Convention, it can be concluded that liability for space activities is generally linked to lawful activity .

The fact that the refusal to qualify all damage as unlawful paves the way for strict liability in the sense of no-fault liability for lawful but damage-causing behavior, not least in view of the flexibility inherent in strict liability. It enables activities that are desired for economic, scientific or other reasons, but in which the possibility of damage can not be ruled out, even if all due care is exercised, from expressing illegality . However, the victim should still be helped to obtain compensation , even if this cannot prevent the activity as such. It is discussed in particular in connection with increasing technical and industrial activities with potential foreign contact and here again especially with regard to lawful, but particularly dangerous acts (ultra-hazardous activities). The reasons given for the necessity of strict liability are, on the one hand, difficulties in the burden of proof , but also the idea that the disadvantages of causing damage through permitted dangerous installations or activities should rather be attributed to those who also enjoy the benefits.

Although strict liability is now accepted in principle in international legal literature, the question of whether the principle of strict liability as a sentence of general customary international law or as a general legal principle also applies outside of the contractually regulated areas , is assessed negatively in the sense of general strict liability for dangerous activities. However, this does not prevent subjects of international law from providing for such a treaty. Strict liability, however mostly under civil law and not as original state liability , has been anchored in some special international treaties, whereby in the present context the regulation in the Space Liability Convention will be of particular interest.

The regulation in the Space Liability Convention

The concept of the space object

The basic requirement is a liability according to the space CLC, that the damage by a space object (object space) was caused. However, the term space object is not defined in the Space Liability Convention. Since it was assumed in the Space Committee that its fundamental meaning was generally clear, Article I d of the Space Liability Convention only provides the clarification that components of a space object and its carrier vehicle and its parts are also included in the term space object.

In principle, however, it is now generally accepted that space objects are all man-made objects that are intended for the field of activity in space. It is therefore not decisive whether an object actually enters space, but rather whether this is its goal - its purpose. This results not least from Art. Ib Space Liability Convention, according to which the expression “start” also includes the attempt to start. An area of ​​activity in space is opened up for an object if it is to be started for at least one full orbit around the earth ( orbital traffic ) or beyond ( superorbital traffic ), but not if it only uses space as a transit station or just one Describes partial orbit ( suborbital traffic ). Art. I d of the Space Liability Convention shows that with regard to this purpose, the entire launch configuration has to be taken into account, so that all components of the launch vehicle that are intentionally or unintentionally separated from the launch vehicle after the launch and fall back to earth without drive or guidance or remain in space as space objects be valid. Space debris is therefore also covered by the Space Liability Convention. The space transport system Space Shuttle is also intended for orbital traffic . Therefore, the entire shuttle system is, despite the fact that the shuttle missile is launched back to earth after its mission has ended and, after re-entering the earth's atmosphere, heads for the landing site in an aerodynamic glide flight (insofar as it is also an aircraft ) qualify the above as a space object. In contrast, the intercontinental space plane (aerospace plane), which only operates in space to accelerate transport on earth and thus does not orbitally, should not be considered a space object.

The question of when the liability for space objects begins after the WHÜ is controversial. While some want to infer from Art. I c Space Liability Convention (term of the launching state) that the WHÜ only intervenes at the start of the launch, which is understood to mean the intentional or unintentional ignition of the engines (countdown 0), others consider this - admittedly clear - Borderline in view of the exception in Art. VII b Space Liability Convention, which speaks of “planned launching”, for too restrictive.

As to whether the Space Liability Convention also covers objects that are launched from celestial bodies or from orbits to earth or further into space, the literature refers to Art. VIII S. 2 of the space treaty, which speaks of "return to earth" , partly believed that space objects should be launched from Earth. Such an interpretation made it possible, as soon as appropriate starts are technically possible, to circumvent the Space Liability Convention and would therefore not be understandable from the point of view of the purpose of the Space Liability Convention. In addition, such possibilities were not yet considered when the space treaty was drawn up, so that the wording of the space treaty can be explained historically.

According to Art. III of the Outer Space Treaty, in the exploration and use of outer space, including the moon and other celestial bodies, the contracting states exercise their activities in accordance with international law, including the Charter of the United Nations, in the interests of maintaining international peace and security and promoting international cooperation and communication. In addition, Art. IX of the treaty contains a comprehensive, preventive consultation and consideration requirement in order to avoid damage to other contracting states by a space company.

The guidelines for avoiding space debris developed by the Inter-Agency Space Debris Coordination Committee in 2002 were further developed by the United Nations in 2007, but are still non-binding. At most, they can be used as a standard of care for fault liability according to Art. III WHÜ. In addition to a definition of the term space object, there is also a lack of a definition of space debris . In particular, it is unclear whether a space object in the sense of the WHÜ can also be an object that is viewed as space junk. So there is currently no specific mechanism with which space debris is regulated in a binding manner within the framework of international space liability law.

The principle of state liability

Based on the principle of state liability, according to which the state is liable in its capacity as a state and not in its capacity as an entrepreneur of a space mission , Art. II ff. WHÜ tie in with the concept of the starting state .

This is defined in Art. I ci Space Liability Convention as a state that launches a space object or has its launch carried out. While the first alternative offense focuses on the state that, as it were, “pulls the trigger”, the more difficult interpretation of the second alternative offense should focus on text versions that are binding under international law. The English version, which is binding in this respect (cf. Art. XXVIII, Paragraph 1, Sentence 1, Space Liability Convention ) speaks of the "state which ... procures the launching of a space object" . It is true that Article VI of the Space Treaty, which is to be seen as a framework and stipulates responsibility under international law, “regardless of whether government agencies or non-governmental legal entities ... act” and then stipulates an authorization and monitoring obligation for non-governmental legal entities, suggests that states consequently also because of this influence an obligation to liability for the approved and monitored activities was to be imposed, so in so far as a mere “permitting” of the take-off could be covered by the second alternative offense of Art. I ci Space Liability Convention. Such an interpretation would not be compatible with the fact that “to procure” ultimately requires more than a simple “allow”, namely rather an initiation in the sense of “commission”.

Incidentally, the idea of ​​Art. VI of the Space Treaty is already taken into account by Art. I c ii of the Space Liability Convention, according to which the start state is also the state from whose territory or facilities a space object is launched. The liability derived here from the territorial or functional sovereignty makes it clear that liability is also applied for private activities. This eliminates the distinction that exists in general international law, according to which state liability under international law only intervenes in the case of criminal acts by direct or indirect state organs within the framework or in the exercise of effective sovereign state authority (liability for primary organ acts) and the state only intervenes for acts or omissions of private individuals is liable from the point of view of the breach of state supervisory or intervention obligations (liability for secondary organ action). As soon as space activities emanate from the territory or from the facilities of a state, the principle of state liability also applies to private-sector activities. This regulation is evidently based on the fact that space companies are linked to the political and economic interests of states like no other.

The consequence of this regulation, which ultimately sets up four categories of start states, is that several start states can fall under the concept of the start state with regard to different aspects. In 1990, for example, the USA, the then Soviet Union and Australia agreed that the Soviet Union should launch US commercial satellites into orbit from Australia. In the case of implementation, these were all considered launch states, since the USA had the launch carried out, the Soviet Union launched the space object and the launch took place from Australian territory. Since there is no ranking within the categories, all starting states are liable in such cases. According to Art. V, Para. 1 of the Space Liability Convention, which according to the wording is only applicable to multi-state launch companies, but according to the overall context and meaning of the Space Liability Convention, it also applies between several launch states within the meaning of all categories of launch states defined in Art. I c of the Space Liability Convention (cf. also Art . V Para. 3 Space Liability Convention), liability is jointly and severally liable. Art V, Paragraph 2, Clause 1 of the Space Liability Convention gives a state that pays damages a, unspecified, compensation claim against the other participants. According to p. 2, the participants can make an agreement on the division of joint and several liability in the event of damage, which, however, allows the injured state to choose to claim full compensation from individual or all of the jointly and severally liable starting states, in accordance with Art. V, Paragraph 2, S. 3 Space Liability Convention is not affected. The range of launch states liable to be liable is not restricted by the fact that according to Art. I c of the Space Liability Convention. Art. II WHÜ a launching state is only liable for the damage caused by its space objects. The expression “its space object” is not to be understood in the sense of property because such an interpretation would lead to an obviously absurd and unreasonable result according to Art. 32b of the Vienna Convention on the Law of Contracts (WÜRV). The word “its” should therefore only be interpreted as a reference to the starting states.

The dual liability system

The most interesting part of the Space Liability Convention for general international law should be Articles II to IV, which provide for a dual liability system that differentiates the type of liability based on the location of the damage and the damaged objects and is not limited in terms of sum. It is not called the "heart" of the Liability Convention for nothing.

Strict liability

If a space object causes damage to the earth's surface or to aircraft in flight, the launching state is absolutely liable for the payment of damages, according to Art. II Space Liability Convention. The fact that this standard does not presuppose fault is suggested by both the term “absolutely liable” as well as Art. III, which has just been formulated differently, which presupposes fault, and is also confirmed by the materials on the Space Liability Convention. Since, moreover, liability for space activities is usually linked to lawful action, Article II of the Space Liability Convention standardizes liability for lawful action regardless of fault, i.e. strict liability according to the terminology chosen here.

Damage caused by space objects in space or on celestial bodies, as well as damage caused by space objects in airspace to other space objects, are to be excluded from the strict liability of Art. II Space Liability Convention.

The stipulation of strict liability in the Space Liability Convention can be justified by the fact that on the one hand the legitimate interests of the victims must be protected, but at the same time the fact must be taken into account that the activities of the potential causers are intended to serve the interests of all humanity and damage predominantly neither intentionally or negligently. While for this reason space activities are viewed as fundamentally lawful, the burden of proof for fault on the part of the state is relieved of the uninvolved injured party; the extremely high risk posed by falling objects should also be taken into account. As a corrective to strict liability, Art. VI, Paragraph 1 of the Space Liability Convention gives the state liable to this extent the opportunity to provide evidence that the damage is wholly or partially due to gross negligence or an act or omission of a claiming state or the state represented by it natural or legal person. In practice, however, it would be just as difficult to prove gross negligence or intent to cause damage as was to establish the necessary causal connection with the damage. An exemption from liability citing force majeure was deliberately not included in the Space Liability Convention. In addition, Art. VI, Paragraph 2 of the Space Liability Convention excludes the possibility of proof of exoneration if the space activities of the launching state were incompatible with international law, in particular with the UN Charter and the Space Treaty.

Fault liability

Liability for negligence on the part of the launching state or for persons for whom it is responsible applies in accordance with Art. III of the Space Liability Convention if the damage occurs to a space object in another launching state other than on the surface of the earth, or if personal injury or property damage occurs on board one of these Space object arises. In this respect, the liability for fault represented in classic international law is used. Since fault itself is not defined in more detail in the Space Liability Convention, general principles of international law must be used in the event of a dispute.

In this context, however, it is questionable to what extent the group of culpable persons for whom the starting state is responsible extends. With reference to Art. VI of the Space Treaty and Art. Ic of the Space Liability Convention, it has already been established that states, as soon as they are to be regarded as launch states within the meaning of Art. Ic of the Space Liability Convention, regardless of whether state agencies or non-state legal entities are active, are fundamentally liable for their space activities . According to this, the starting state would also have to be responsible for every culpable act or omission of state organs and non-state legal entities within the framework of fault liability. However, such a view is difficult to reconcile with Art. III WHÜ, in which the English version, which is binding under international law, states: "[the] launching state ... shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible. "Here, the word" only "should obviously be used to draw a narrowing contrast to the comprehensive state liability set out above, so that the fault liability of Art. III Space Liability Convention will have to be interpreted in such a way that it provides for the already explained liability for primary organ action as a rule ; in addition, however, there would still be room for liability for secondary organ acts arising from the violation of domestic supervisory or intervention obligations under Art. VI of the Space Treaty.

This point of view is also easy to understand in connection with the motive for stating a fault liability: Those who themselves take part in space ventures are certainly less worthy of protection than those who are not involved in the dangers of the use of space.

Third party damage

The case that a third country or its natural or legal persons suffers damage from the collision of space objects from two other launch countries is covered by Art. IV WHÜ. While the fault liability of Art. III WHÜ applies for the damage to the colliding space objects itself, the launch states involved are jointly and severally liable to the third party, in accordance with Art. IV, Paragraph 1 of the Space Liability Convention. For the intervening liability regime, the distinction made in Art. II to III of the Space Liability Convention is used, so that a distinction must once again be made on the basis of the damage location and the damaged object.

If the damage of the third country occurs on the surface of the earth or on an aircraft in flight, the responsible states are liable according to the principles of strict liability in accordance with Art. IV, Paragraph 1 a of the Space Liability Convention. If, on the other hand, it occurs on a foreign space object or if the personal injury or property damage on board such a space object occurred elsewhere than on the surface of the earth, fault liability applies even if a state responsible for the original collision is at fault, in accordance with Art. IV Para. 1 b Space Liability Convention.

In all cases of this joint and several liability, the burden of damages according to Art. IV, Paragraph 2, Clause 1 of the Space Liability Convention is to be divided between the launch states responsible for the original collision according to the extent of their respective fault; if the fault cannot be determined, they are equally liable. According to p. 2, the aggrieved state has, similar to Art. V, para. 2, p. 3 of the Space Liability Convention, a right to choose against which launching state it wants to proceed.

The disclaimer for interior damage

Based on general international law, which does not provide for claims by nationals against one's own state, Art. VII a Space Liability Convention excludes damage suffered by nationals of the launching state from its scope of application. This should also apply to nationals of the starting country who actually live abroad. According to one view of Art. VII a Space Liability Convention, persons with multiple nationalities should be covered; others consider the effective nationality to be assessed under general international law to be decisive. A legally void space does not arise because the victims are free to seek legal protection under the domestic law of the starting state. If the damage was caused by a space object launched by several launch states, the liability of the other launch states should remain unaffected. According to Art. VII b Space Liability Convention, liability is also excluded for foreigners while they are involved in the operation between take-off and landing of the space object, or while they are in the immediate vicinity of the take-off or recovery area at the invitation of the start state. It is believed that these people can foresee the risks associated with their activity or invitation, but at the same time it concludes that the exemption from liability only applies if the damage was caused by the space object that is related to their activity or invitation.

The damage

The concept of damage

With a definition of damage, Art. I a Space Liability Convention limits the legal interests that can be replaced under the Convention. According to this, the term damage means: death, bodily harm or other impairment of health as well as loss of or damage to the property of a state or a legal person or the property of an international intergovernmental organization. It is therefore linked to current and real damage (physical damage) that can be derived from causal laws, which at the same time also presupposes the occurrence of an actual damage event .

The scope of the compensation

Basics

The assessment of the extent of the compensation, however, encounters difficulties in spite of this, at first glance, detailed formulation of Art. Ia Space Liability Convention. From Art. II Space Liability Convention ("A launching state shall be ... liable ... for damage caused by its space object ...") it can only be inferred that there must be a causal relationship at all, but not the criteria by which its existence or non-existence is to be assessed would. Since the Space Committee ultimately deliberately left this question open and thus did not include a regulation in the Space Liability Convention, the rules of general international law are usually used, according to which only consequences of the closer liability context are to be replaced, whereby for its determination between the relatively close condition (causa proxima ) and the distant condition (causa remota) must be differentiated. Even if this is to be agreed with in the result, the methodological interpretation problems that exist in this respect should be briefly discussed here. First of all, the criteria causa proxima and causa remota are categories from international tort law that are taken from pure unlawful liability into a contract that also stipulates strict liability. The “usual meaning” implicitly assigned to the words “caused by” in the sense of Art. 31 Para. 1 of the WÜRV is already questionable insofar as the strict liability of Art. II and IVa of the Space Liability Convention is an unusual principle of liability in international law stipulates.

In connection with the criteria of predictability and habituality of the damage, which are essential when distinguishing between “causa proxima” and “causa remota”, it could be viewed as problematic that, given the limited experience with damage processes in connection with the use of space, often neither of a ordinary, nor can we speak of a foreseeable course of damage.

Irrespective of these fundamental problems of interpretation, it will be difficult to draw the connection of liability, which is normatively limited by the causa-proxima criterion, although a distinction between direct and indirect damage should now be considered obsolete. Problems of demarcation in individual cases will ultimately make a further development of liability law through case law inevitable. The burden of proof for the causality of the damage will at least lie with the claimant. In the following, reference will be made to some possible damage as an example.

Individual damage possibilities

The WHÜ covers collision damage of the type already described without any problems. In connection with nuclear damage, which is basically covered by the WHÜ, the costs of the search for and disposal of the radioactive contamination are considered reimbursable, whereas pure precautionary measures are not covered by the WHÜ if there is no actual damage event fall. Since radiation damage , which can only occur a long time after the crash of nuclear powered satellites (delayed damages), no further causes of damage are interposed and the problem of "delayed damages" is in any case one of the temporal context that is caused by a deadline solution for the assertion of claims in Art . X WHÜ was added to a solution, they are also covered by Art. I a WHÜ. So-called shadowing damage, which occurs when large orbital structures are positioned too close to smaller space objects and cut off the solar radiation necessary for the energy supply , trigger an obligation to pay compensation under the WHÜ. It is disputed or unclear whether lost profit or immaterial damage (especially compensation for pain and suffering) also fall under the WHÜ. In contrast, in view of the difficulty of setting out the liability requirements for the causa proxima and physical damage, general environmental damage such as pollution from rocket exhausts and damage from the introduction of microorganisms are just as little covered by the WHÜ as radio failure damage caused by transmission and reception disruptions when using space objects. Claims to satisfaction are also excluded because of the lack of atonement in the WHÜ, which is sometimes inherent in tort claims under international law.

The amount of the compensation

After initial disputes in the Space Committee about the law applicable to determine the amount of compensation, in the course of which some demanded that the law of the place of damage be applied, while others demanded that the law of the launching state be applied, an agreement was finally reached with Art. XII Space Liability Convention on an assessment of the Amount of damages in accordance with international law and the principles of justice and equity, with which the claimant is treated as if the damage had not occurred. It is noteworthy in this context that the amount of the compensation is to be determined not only according to international law, but also according to aspects of justice and equity. According to Art. XIII, unless otherwise agreed, the compensation must be paid in the currency of the claiming state or, if requested, in the currency of the state liable to pay compensation. It follows that the Space Liability Convention does not provide for in rem restitution , but only for monetary substitution. A maximum liability limit was not agreed.

The litigation

Active and passive legitimation

If a state suffers damage itself, it is of course entitled to assert a claim for damages against the launching state, in accordance with Art. VIII, Paragraph 1 of the Space Liability Convention.

In connection with damage suffered by natural or legal persons, the WHÜ creates norms that deviate from the usual rules of diplomatic protection. According to Art. VIII Para. 2 Space Liability Convention, it is not only - as usual - the home state, but also the state in whose territory the damage was suffered, possible to assert a claim, provided that the home state does not assert a claim. If both of the aforementioned states have not asserted a claim and have not notified their intention to do so, the state of the permanent residence of the injured person can also make the claim according to Art. VIII, Paragraph 3 of the Space Liability Convention.

The claim is to be asserted against the starting state in accordance with Art. VIII, so that reference can be made to the statements relating to the starting state.

Procedure to enforce the claim

With regard to the procedure for enforcing the claim, it is first of all noteworthy that, in deviation from the "local remedies rule" applicable under general international law, the Space Liability Convention in Art. XI Para. 1 does not make the assertion of a claim for damages dependent on the exhaustion of domestic legal remedies that one claiming state or the person represented by it.

Only if damage has already been asserted before the courts or administrative authorities of the start state or on the basis of an international agreement that is binding on the states concerned, the assertion of damage under the Space Liability Convention is excluded, in accordance with Art. XI Paragraph 2 Sentence 2 Space Liability Convention.

Furthermore, the assertion of claims for damages is only possible within the deadlines regulated in Art. X Space Liability Convention. Art. IX S. 1 Space Liability Convention stipulates that claims for damages must first be asserted through diplomatic channels. In the event that the claiming launch does not have diplomatic relations with the launching country, Art. IX, Paragraph 2 of the Space Liability Convention provides for the possibility of having another country or, under special conditions, the Secretary General of the UN act at the request of the claiming state.

Since the diplomatic assertion was used in the only case so far that led to an international settlement of claims, namely the crash of the Kosmos 954 satellite, the dispute settlement procedure regulated in Art. XIV to XX Space Liability Convention has not yet been used in practice been taken. This is initiated at the request of one of the parties involved by setting up a damage commission if within one year of the claiming state notifying the starting state that it has submitted the documents for its claim, no settlement has been reached through diplomatic negotiations, in accordance with Art. XIV Space Liability Convention. The damage commission, which is to be made up equally in accordance with Articles XV to XVII of the Space Liability Convention, has for its part to decide (regularly) within one year (Art. XIX Paragraph 3 of the Space Liability Convention) on the merits of the damage claim and, if necessary, determines the amount of the damage to be paid, in accordance with Art. XVIII WHÜ. The decisive weakness of this dispute settlement procedure, however, is that according to Art. XIX Para. 2 Space Liability Convention, this arbitration award is only binding if the parties have agreed to this. Otherwise, only a recommendation is issued, which the parties must comply with in good faith. Since it cannot be assumed that the parties to the dispute will voluntarily be bound by the arbitration award after fruitless diplomatic negotiations, the dispute settlement procedure can be described as being based on the principle of arbitration. The establishment of a binding effect failed due to the resistance of several (former) Eastern Bloc states , which would not have accepted the entire agreement without the compromise now to be found in Art. XIX, Paragraph 2. In this respect, it is not surprising that the dispute settlement procedure within the framework of the ESA Agreement in Art. XVII provides for a final and binding decision by the Arbitration Commission, the non-recognition of which can even lead to the exclusion of the relevant state from the ESA. It is ultimately questionable which options remain for enforcing the recommendations of the Claims Commission, in particular whether unilateral enforcement measures permitted under general international law may be taken.

The liability of international organizations

As in hardly any other area, there is a need for international cooperation in the exploration and use of space, given the limited financial and technical possibilities of individual states. Even the financially strong states USA, Canada, Japan and the European member states of the ESA recently realized that the construction of a permanently manned space station will probably only be possible with united forces. While the implementation of certain projects can already be guaranteed by contractual agreements, the establishment of international organizations is often useful to pursue more comprehensive goals.

Since only subjects of international law can be bearers of rights and obligations under international law, they must be subject to international law in order to be liable under international law. Insofar as the respective founding treaties suggest a corresponding will on the part of the member states, their partial international law subjectivity is generally recognized today. By definition, intergovernmental international organizations with legal status are to be understood as corporations established by founding treaties which, according to their statutes, have institutionalized international cooperation for a certain duration and with a certain purpose and participate in international transactions through their own organs and with their own will of an association as a legal personality of international law . In order to avoid the controversial question of which of these conceptual elements are essential prerequisites for the emergence of such organizations, the WHÜ ties the basis more closely to formal elements, so that the regulation is of general interest beyond the Space Liability Convention. After it has first been made clear that only intergovernmental organizations - i.e. those established by the founding treaty under international law - are covered, the Convention stipulates in Article XXII, Paragraph 1 that the majority of the members of the organization must be contracting parties to the Space Liability Convention and the Space Treaty. Article XXII, Paragraph 1 takes account of the competence problems arising from the partial international legal capacity of international organizations in that the organization must also submit a declaration according to which it accepts the rights and obligations from the Space Liability Convention. Such a declaration has so far been made by ESA and Eutelsat . In addition, the member states of such organizations that are contracting parties to the WHC are obliged to ensure that the organization makes the corresponding declaration, in accordance with Art. XXII, Paragraph 2. If these requirements are met, an international organization is deemed to be of the contracting states of this Convention as Recognized as a subject of international law, so that the otherwise delicate question of recognition by (damaged) third countries in the context of this convention does not even arise. Of particular interest is the direct liability, regulated in the Space Liability Convention, towards individual member states of the organization. According to Art. XXII, Paragraph 3, the organization and those of its member states that are contracting parties to the Convention are jointly and severally liable, although according to letter a, the claim for damages must first be asserted against the organization and according to letter b only subsidiary, namely after expiry of six months, action can be taken against the Member States that are contracting states to the Convention.

For damage that organizations inflict on their own member states, the WHC, in view of Art. VII Space Liability Convention, which seeks to exclude damage to indoor areas from the Convention, is not likely to be applicable.

Claims for damages by the organization under the Space Liability Convention cannot be made by the organization itself, but must be asserted by a member state that is a party to the WHC, in accordance with Article XXII, Paragraph 4 of the Space Liability Convention.

Further instructions

To conclude the discussions on space liability, some other provisions of the WHC should be mentioned at this point: The non-binding Art. XXI Space Liability Convention provides the contracting states, in particular the launching state, in the event that damage represents a major risk to human life or is serious affects the living conditions or the functioning of vital centers, the obligation to examine the possibility of providing the aggrieved state with adequate and prompt assistance upon request. Art. XXIII Space Liability Convention makes provisions with regard to other agreements. According to Article XXIV Paragraph 1 of the Space Liability Convention, the Space Liability Convention is open to accession by all states (general multilateral treaty). Art. XXV and XXVI Space Liability Conventions deal with the possibility of bringing about changes to the treaty or requesting a review conference. Art. XXVIII para. 1 Space Liability Convention defines the authentic languages.

Web links

• Convention on Liability under International Law for Damage Caused by Space Objects ( Federal Law Gazette 1975 II pp. 1209, 1210 , in three languages)
• Website of the United Nations Office for Outer Space Affairs in Vienna ( Memento of February 10, 2006 in the Internet Archive )

Individual evidence

1. ^ Stephan Hobe , Bernhard Schmidt-Tedd, Kai-Uwe Schrogl: Cologne Commentary on Space Law . Vol. I, Carl Heymans Verlag 2010, Art. 7, marginal no. 5
2. ↑ Elmar Wins: Space Liability in International Law . Berlin 2000, p. 141 with additional references
3. ↑ Scope of the Space Liability Convention website of the Federal Department of Foreign Affairs FDFA, as of November 27, 2017
4. ^ Stephan Hobe , Bernhard Schmidt-Tedd, Kai-Uwe Schrogl: Cologne Commentary on Space Law . Vol. I, Carl Heymans Verlag 2010, Art. 6, No. 1 f.
5. ^ Stephan Hobe , Bernhard Schmidt-Tedd, Kai-Uwe Schrogl: Cologne Commentary on Space Law . Vol. I, Carl Heymans Verlag 2010, Art. 7, marginal no. 5
6. ↑ Elmar Wins: Space Liability in International Law . Berlin 2000, p. 98
7. ↑ A / RES / 47/68 Principles Relevant to the Use of Nuclear Power Sources in Outer Space Website of the United Nations , accessed on July 30, 2018 (English)
8. ^ Committee for the Peaceful Uses of Outer Space , International Atomic Energy Organization : Safety Framework for Nuclear Power Source Applications in Outer Space Vienna 2009 (English)
9. ↑ Irmgard Marboe: Space garbage - environmental problem in space jus-alumni magazine 03/2012, p. 13
10. ↑ United Nations Office for Outer Space Affairs : Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space 2007 (English)
11. ^ Christian Brünner , Alexander Soucek: Outer Space in Society, Politics and Law . Springer Science & Business Media, 2012, p. 188 ff.
12. ↑ Yuriko Wahl-Immel: Who will be liable for junk and garbage in space in the future? Welt , May 28, 2015
13. ↑ Federal Law Gazette 1990 Part II, page 1415 ( Memento of the original dated November 13, 2004 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. 

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