The Institute of Space Law and Policy, the Institute for Legal Studies of the Centre of Social Sciences, the Hungarian Branch of the International Law Association, and the Subcommittee of Legal and Political Sciences of the Hungarian Academy of Sciences held a conference to commemorate the 50th anniversary of the Space Liability Convention and to discuss the issues that have arisen since then.
After the welcoming speeches by Gábor Sulyok and Balázs Bartóki-Gönczy, the chairman, Kálmán Kovács, invited Vanda Lamm, Vice-President of the Hungarian Academy of Sciences, to give the opening speech, in which she was highlighting the contrast between legal regime stipulated in the Space Liability Convention and the civil liability for nuclear damage.
Gábor Sulyok gave a presentation entitled "The development and presentation of the Liability Convention", in which he explained that space lawyers had been dealing with the issue of liability since 1932 and that in 1958 an ad hoc space committee had already made the issue a second priority, even though at that time there were considerably fewer space objects orbiting above us than today. In 1962, the USA submitted its draft liability plan, but the priority for the Soviet Union was the Rescue Agreement because they had some difficulty in rescuing returning astronauts. This agreement was concluded quickly, in about a month and a half. The Hungarian draft was submitted in 1964 after researches on space liability which were carried out by renowned Hungarian lawyers, among whom Ferenc Mádl, Gyula Gál, and István Herczeg, and later on other renowned lawyers such as Árpád Prandler, Gyula Eörsi, and György Haraszti also dealt with the issue.
Understanding the concept of space liability as such, also requires an understanding of the concept of damage. Damage caused by space objects can be personal or property damage. In many cases, the person who suffers the damage is not only the injured party but also the person who caused the damage. It is also necessary to define the launching state since it is not only the state which launches the space object that becomes the launching state, but also the state which launches the space object of another state, and the state from whose territory and with whose equipment the launch takes place. There are different types of liability depending on whether the damage was caused on Earth or in its atmosphere, or in space. The former implies objective liability, while the latter implies fault-based liability.
The convention, officially called the Convention on International Liability for Damage Caused by Space Objects, was signed in 1972 in London, Moscow, and Washington DC, in the usual practice of that time. Since then, 98 States Parties and 4 international organizations have adopted it. Interestingly, Canada, Iran, Sweden, and Japan have not.
Dalma Takó's presentation was entitled "Universalism and particularism in the regulation of liability", and she pointed out that in addition to the Convention on liability, several more limited, particular agreements have been concluded between certain states, supplementing and expanding the original Convention. For example, in the case of the International Space Station, the contracting parties have mutually waived liability towards each other, but such waivers are also possible in bilateral agreements. She said that these agreements could facilitate closer cooperation, encourage participation in space activities, reduce the cost of insurance and allow risk sharing, but that there are difficulties, such as the fact that the waiver of liability can only be interpreted within the partnership and does not apply to third parties. The usual legal principles apply to these contracts: the specific over the general and the latter over the earlier. The 1969 and 1986 Vienna Conventions also apply. Thus, particularism is a well-established tool: narrow agreements and mutual waivers are used, and are expected to be used in the future.
Mónika Ganczer explained the links between liability and nationality. The term "nationality" is used here to refer to objects, but it is also used in Hungarian legal terminology to refer to persons. Three different areas can be distinguished: the nationality of the object, the object/person causing the damage, and the victim. The object can be identified by registration. Jurisdiction and control may be in the hands of a single registry unless it is modular (e.g. ISS), in which case the responsibility for a certain part lies with the launching states. In the case of multiple launchers, only one state can be in the registry should be also a launcher. In the case of unregistered space objects, responsibility is not excluded, it is just more difficult to find the launcher. A further problem is that there is no established method of registration, as in the case of aircraft or ships.
Katalin Sulyok then spoke about damage sharing and damage calculation in international and national law. As we saw in the previous presentations, the responsibility lies with the sending state and in the case of multiple sending states, it is shared between the parties. The presentation also dealt with multiple causations and the amount of compensation.
Balázs Bartóki-Gönczy gave a presentation on liability in national space laws. He explained that under Article VI of the Outer Space Treaty, space activities are carried out by States, and therefore the State is responsible for national activities. In the meantime, however, the private sector has also entered the field of space activities, so the issue of transfer of liability has been raised in several countries as something that needs to be regulated, as well as the transfer of ownership. Some national legal acts on space activites, such as British or French, regulate these issues quite in detail, while in some countries, such as Germany or Italy, it is less regulated. In the EU, the national space acts do not lay on a single set of rules because of the differences in the space capacities of the various countries, and because the TFEU (Treaty on the Functioning of the European Union) excludes the harmonisation of these acts. The UN General Assembly has made a recommendation in 2013 that regulation is needed in this field. The regulation of the transfer of liability is an important issue, as the state pays in the event of damage. Although liability insurance is compulsory, it would be so expensive that it would have a diversionary effect on private operators, so there is a limit on how much the state can recover from the company, which has been agreed upon at the international level at EUR 60 million. In the case of the sale or purchase of satellites, the buyer must take over the responsibility under the Space Act.
Áron Barták gave a presentation on the interrelationship between the Cape Town Convention and the space liability regime, in which he presented the problems and possible solutions of state-linked liability.
Gábor Kecskés, in his presentation entitled “Damages in Practice”, also distinguished and gave examples of damages happened in the airspace or on the Earth's surface, or in outer space and the type of liability associated with them. He also detailed the case of Cosmos 954, which could have been resolved under the Liability Convention, but ended up with a bilateral treaty between the two parties, Canada and the Soviet Union. He mentioned the case where the first human being, Lotte Williams was hit by a piece of space debris which was proven to have come from space. He added that with the steady increase in the number of satellites and space objects, and the surge in Chinese and Indian space industry capacity, the likelihood of future incidents of damage is increasing, so there is a need for proper regulation.
The conference raised several interesting questions on space law and highlighted the role of further changes which can cause further challenges in the field of space law.
Text: Borbála Huszár
Photos: Balázs Bartóki-Gönczy, Borbála Huszár