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Commercial Operator Liability in the New Space Era

  • Paul B. Larsen (a1)
Extract

Both national and international laws apply to collisions by space vehicles and objects in outer space and with the surface of the Earth. International treaties govern collisions involving commercial operators from different states, while domestic laws govern claims by nationals against national commercial operators. Commercial operators may find themselves as defendants or become plaintiffs when others cause them damage. This essay discusses liability in the new space era from the point of view of these operators, including both outer space and surface liabilities. It examines liability exposure, describes different regimes governing liability, and identifies prospective legal changes.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Convention on the International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 UNTS 15 [hereinafter Liability Convention].

2 Scott Kerr, Liability for Space and the Kessler Syndrome (Part 2), Space Rev. (Dec. 18, 2017).

3 See Reusability, SpaceX; New Shepard, Blue Origin.

4 See Loren Grush, SpaceX Is About to Make History Relaunching a Used Falcon 9 Rocket, The Verge (Mar. 28, 2017).

5 William L. Prosser, Prosser on Torts 6 (3d ed. 1964).

7 Restatement (Second) of Torts § 502A (Am. Law Inst. 1977).

8 See OST, supra note 6, art. VII.

9 See Liability Convention, supra note 1.

10 G.A. Res. 1962 (XVIII), at 15 (Dec. 13, 1963).

11 OST, supra note 6, art. VII.

12 Id., art. VIII.

13 Francis Lyall & Paul B. Larsen, Space Law: A Treatise 96–97 (2d ed. 2018).

14 Liability Convention, supra note 1, art. 1.

15 Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (1938).

16 The Corfu Chanel Case (U.K. v. Alb.), 1949 ICJ Rep. 1 (Apr. 9).

17 Chorzow Factory Case (Ger. v. Pol.), Ser. A, No. 13, 4 (Perm. Ct. Arb. 1928); see also Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27). Article VII of the OST expresses the same legal principle. See OST, supra note 6, art. VII.

18 51 U.S.C. § 50914. The law is only temporary pending the ability of the commercial operators to assume full risk exposure. Id.

19 Id. at § 50914(a)(1).

20 See Lyall & Larsen, supra note 13, at 104–06.

21 Id.

22 See Kerr, supra note 2 (discussing the Kessler Syndrome).

23 Göktuğ Karacalioğlu, Impact of New Satellite Launch on Orbital Debris, Space Safety Mag. (June 2, 2016).

24 Paul B. Larsen, Minimum International Norms for Managing Space Traffic, Space Debris, and Near Earth Objects, 82 J. Air L. & Com. 739 (2018). P.J. Blount takes up this topic in his essay for this symposium. See P.J. Blount, Space Traffic Management: Standardizing On-Orbit Behavior, 113 AJIL Unbound 120 (2019).

25 White House, Space Policy Directive-3, National Space Traffic Management Policy (June 18, 2018) (stating that “[a] STM framework consisting of best practices technical guidelines safety standards, behavioral norms, prelaunch risk assessments, and on-orbit collision avoidance services is essential to preserve the space operational environment,” and that “debris mitigation guidelines, standards, and policies [will be] revised periodically, enforced domestically, and adopted internationally to mitigate the operational effects of orbital debris”).

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AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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