Home > Journals > WMLR > Vol. 62 (2020-2021) > Iss. 1 (2020)
William & Mary Law Review
Updating the Liability Regime in Outer Space: Why Spacefaring Companies Should Be Internationally Liable For Their Space Objects
Nothing inspires the human imagination quite like outer space. How many people have laid on their backs on a dark, clear night and gazed up at the stars above? The vast expanse of outer space seems endless. But satellite operators are increasingly realizing that space is not endless. Indeed, space is becoming more crowded with space objects, and the threat of these objects causing damage is rapidly growing. The space industry has changed dramatically in recent years, and the threats facing the industry have concurrently evolved.
The world is experiencing the dawn of a new space race—only this time, private entities are leading the charge rather than government agencies. Companies like SpaceX and Virgin Galactic are revolutionizing human operations in outer space by developing groundbreaking new space technologies and by crafting ambitious plans for the future of human activity in space. The private sector’s ability to harness market forces has decisively decreased the costs of operating in space, which in turn has made outer space more accessible to private entities across the globe. As a result, the number of space objects in orbit will continue to skyrocket in the coming years as more private actors expand their operations in space. The probability of space objects causing damage, therefore, is only increasing.
Yet, the law governing international liability for damage caused by space objects has remained shockingly stagnant. The process by which spacefaring parties are held liable under international space law has remained the same since the current liability regime was adopted in the Convention on International Liability for Damage Caused by Space Objects (Liability Convention) in 1972. The Liability Convention was drafted at a time when only two nationstates— the United States and the Soviet Union—had space-launch capabilities. Furthermore, the drafters “were neither expected nor ... required to [deal] with” private space actors at the time. As such, the Liability Convention establishes a notably state-centric framework to assign liability for damage involving space objects, in which national governments are held internationally liable for damage caused by any spacefaring actor from that country.
Given the rapid privatization of the space industry, this Note argues that the international community should update the Liability Convention to reflect the modern reality that the private sector has taken the lead from the public sector in space activity. The Liability Convention is insufficient and ineffective as applied to companies, and an international liability regime that directly addresses private entities will promote certainty, investment, and development in the space industry for the benefit of all.
Part I of this Note explores the current status of the space industry and further examines the rise of spacefaring companies. Part II reviews the treaty framework that establishes the current rules governing international liability for damage caused by space objects. Given this treaty framework, Part III assesses the weaknesses of this approach. First, gaps in the Liability Convention create uncertainty as to which State should be held liable in some cases involving spacefaring companies. Second, the treaty framework promotes the existence of flag states by encouraging national legislation to account for the incompleteness of the international treaties. Flag states foster a dangerous environment for the space industry. Third, the Liability Convention fails to establish effective enforcement mechanisms. The Convention lacks teeth as applied to companies, which renders it largely ineffective in certain instances.
As such, Part IV articulates this Note’s two-part conclusion: the international community should (1) amend the Liability Convention and (2) assign liability for space object damage directly on spacefaring companies. This amendment would solve each problem described in Part III and would address the modern realities of today’s space industry. Indeed, these spacefaring companies no longer require insulation from liability by their national governments. Rather, these companies have attracted enormous investment in recent years and have enough resources in their corporate treasuries to cover their own liabilities. Moreover, a clearer liability regime would promote efficiency and certainty for spacefaring companies, which would benefit their business operations. Consequently, this Note argues that the international community should modernize the Liability Convention by amending it to place liability for space object damage directly on the companies involved.