The Responsibility for Private Activities in Outer Space: Where is the Clue to This Puzzle

AutorDiego Zannoni
CargoResearcher in International and European Union Law. University of Padua
Páginas185-207
185
Revista de Derecho del Transporte
N.º 27 (2021): 185-207
* Fecha de recepción del trabajo: 21/4/2021. Fecha de aceptación del trabajo: 14/5/2021.
THE RESPONSIBILITY FOR PRIVATE ACTIVITIES
IN OUTER SPACE: WHERE IS THE CLUE
TO THIS PUZZLE? *
Diego Zannoni
Researcher in International and European Union Law
University of Padua
ABSTRACT
The need to resolve the question of State responsibility for private space
activities has gained urgency in recent decades in parallel with the increasing
number of private corporations participating in space ventures. According to
Article VI of the Outer Space Treaty, States shall authorise, supervise and bear
international responsibility for national activities in outer space, including pri-
vate ones. This provision nonetheless begs a number of unresolved questions,
including whether this responsibility is defined in absolute or qualified terms,
the meaning of «national activities» and identification of the State required to
authorise and supervise a space activity. With a combination of theoretical and
practical approaches, this article seeks to address these issues and to offer an
opportunity to assess the latest developments in this rapidly evolving area of
human endeavour.
Keywords: outer space, space law, space activities, responsibility, registration,
private activities, appropriate State.
SUMMARY: I. INTRODUCTION.—II. THE RESPONSIBILITY FOR PRIVATE ACTS UNDER INTERNATIONAL
LAW.—III. THE CONTENT OF ARTICLE VI OUTER SPACE TREATY.—IV. TRADITIONAL AND DIVERGENT IN-
TERPRETATIONS OF ARTICLE VI OUTER SPACE TREATY.—V. «NATIONAL» SPACE ACTIVITIES.—VI. THE
«APPROPRIATE STATE».—VII. THE PLURALITY OF RESPONSIBLE STATES.—VIII. AN OBLIGATION OF
RESULT OR AN OBLIGATION OF CONDUCT?.—IX. FINAL REMARKS.
I. INTRODUCTION
While outer space was traditionally regarded as a sphere of State and inter-
governmental organisation activities, the current overall intensification of space
business is going hand in hand with an expanding presence of private entities. In
the future a substantial increase is expected in international joint space endeav-
ours involving participation by private entities. Against the backdrop of these
DIEGO ZANNONI
186 Revista de Derecho del Transporte
N.º 27 (2021): 185-207
considerations, the purpose of this article is to analyse the responsibility regime
applicable to private space activities, an issue which is becoming increasingly
relevant.
In the Outer Space Treaty (OST) 1, two norms regulate responsibility and li-
ability 2 for space activities: Articles VI and VII 3. These are almost verbatim re-
iterations of principles 5 and 8 of the Declaration of Legal Principles Governing
the Activities of States in the Exploration and Use of Outer Space, which was
enacted four years earlier by the UN General Assembly 4. Ever since the entry
into force of the OST, these provisions have been reiterated, recalled or presup-
posed in all subsequent space agreements and resolutions. Combined with the
high number of ratifications of the OST, including those by major space powers,
this leads us to believe that they have become customary international law 5. The
1 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies [adopted by the UN General Assembly on 19 December
1966 (RES/2222 (XXI), opened for signature on 27 January 1967 and entered into force on 10 October
1967] 610 UNTS 205.
2 It is widely known that there is only one term in French —responsabilité— in Spanish —respon-
sabilidad— and also in Italian —responsabilità— to describe both these notions, yet they are conceptu-
ally different. A breach of an international obligation by a State entails its international responsibility, re-
gardless of whether or not any damage is caused (Commentary to Article 2, par. 9, ILC Articles on State
Responsibility). The term «responsibility» therefore refers to all the obligations that are consequences
of an internationally wrongful act. By contrast, liability refers to the obligation to pay compensation.
The duty of reparation is generally a secondary obligation because it arises from the breach of a primary
obligation. However, liability does not necessarily presuppose a breach of an international obligation, in
the sense that in certain cases reparation is a primary obligation (see The Yearbook of the International
Law Commission, 1973, vol. I, p. 211, par. 37). A paradigmatic example of this is precisely the liability
for damage caused by space objects, which is merely a consequence of any damage caused regardless of
any breach of an obligation. In sum, responsibility arises with breaches of an international obligation
and does not require the occurrence of any damage. Liability, on the other hand, may arise without any
breach of an international obligation but requires the occurrence of damage. It is not possible here to
dwell on the vast doctrinal debate about the existence of a general category of liability without wrong-
doing in international law, as was initially elaborated by Jenks during his general course at the Hague
Academy of International Law (C. JENKS, Liability for Ultra-Hazardous Activities in International Law,
Recueil des cours, vol. 117, 1966). An authoritative doctrine holds that cases of so-called liability with-
out wrongdoing could be conceptually contained within a regime of primary obligations the breach of
which entailed State responsibility. Cf. A. E. BOYLE, «State Responsibility and International Liability for
Injurious Consequences of Acts Not Prohibited by International Law: A Necessary Distinction?», ICLQ,
vol. 39, 1990, pp. 1-26; P. M. DU PUY, La responsabilité internationale des Etats pour les dommages
d’origine technologique et industrielle, Paris, 1976, pp. 225-228. For an analysis of the different theories
of liability without wrongdoing, see R. PISILLO MAZZESCHI, Due diligence e responsabilità internazionale
degli Stati, Milano, 1989, p. 128.
3 The scope of Article VI differs from that of Article VII. Article VI deals with space activities in
general while Article VII is concerned with space objects. Article VI OST focuses on leading space activi-
ties under the responsibility of a State; the purpose of Article VII is to identify one or more States to be
held liable in the event of damage. Where there is no breach of obligation, there is no State responsibility
under Article VI OST. In contrast, liability under Article VII OST arises regardless of the unlawfulness
of the conduct.
4 UNGA Res 1962, Declaration of Legal Principles Governing the Activities of States in the Explora-
tion and Use of Outer Space, UN Doc A/RES/1962(XVIII) (1963).
5 Ex multis V. S. VERESHCHETIN, Space Activities of «Nongovernmental Entities»: Issues of Inter-
national and Domestic Law, Proceedings of the 26th Colloquium on the Law of Outer Space, 1983,
p. 263; F. POCAR, «La codificazione del diritto dello spazio ad opera delle Nazioni Unite», in F. FRANCIONI
and F. POCAR (eds.), Il regime internazionale dello spazio, Milano, 1993, pp. 34-36.

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