[i]n international space law, however, all private actions are attributed to the State.1
The analysis above has shown that the existence of a prohibition against States causing space pollution has a demonstrable basis in international space law, particularly when interpreted in line with leading principles of international environmental law. However, whereas there has been scholarly work on the responsibility of States for space debris, the legal bases to hold nsas accountable for such harm is essentially unexplored.2 The discussion in this Chapter seeks to redress that gap.3 To do so, it looks at provisions and instruments of international law to determine how they can apply to regulate nsa conduct (whereas domestic laws applicable to space activities are assessed in Chapter 5). That multi-level analysis of the interplay between international law, State law, and the conduct of nsas provides an important and novel means of producing a holistic view appraisal of legal protections of the outer space environment.
As detailed above, space law originated in a highly State-centric legal context.4 Consistent with this, and in light of its genesis in the 1960s, the obligations in the Outer Space Treaty and other leading space treaties are largely
1 The Outer Space Treaty and nsas: Key Provisions
Any assessment of space law must begin with the Outer Space Treaty. Accordingly, the most relevant provisions of the Outer Space Treaty for State accountability for harmful activities in space are assessed in the following sections, most notably Articles vi, vii, viii and ix.
1.1 Article ix
Beginning with Article ix, which has been discussed above as the core basis for a prohibition of space pollution,6 the terms of this provision contain obligations relevant to space pollution, but convey them in elliptical terms which require considerable interpretation. Of central importance, it does not explicitly provide that States must take any particular action if nsas under their control and/or jurisdiction cause harmful contamination to the space environment. On its own, Article ix does not provide an enforcement mechanism for States to take measures against nsas which cause such harm (albeit it is the basis for the substantive prohibition of space pollution).
Of ancillary relevance to responsibility, Article ix enshrines principles of co-operation and mutual assistance and dictates that States shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other states. Furthermore, it includes an obligation of consultation. However, the consultation obligation is hampered by the lack of concrete requirements as to the extent or form of any such consultation. as well as an undetermined time component of when such a consultation needs to be undertaken as Article ix declares that if a State Party has ‘reason to believe that an activity or experiment planned by it
Further, interpretive issues surround Article ix. These include the fact that it only refers explicitly to ‘the exploration’ of outer space, but not its ‘use’, as noted above.8 Given that serious space pollution can occur when launching satellites and sending testing equipment to the moon or Mars, in addition to when exploring in the traditional sense, this interpretive issue bears consequence for the legal obligations and proceedings deriving from Article ix. However, an interpretation of ‘exploration’ to cover all uses of space is potentially available, as discussed above.9 Nonetheless, that will render space law dependent on the interpretation of law by scholars and judges in the future, which may itself alter and vacillate.
1.2 Article vi
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.10
Two distinct views emerged as to the effect of Article vi. The first one considers that Article vi concerns merely primary obligations of States, namely to authorize and supervise acts of private ‘persons’, which would include corporations and other nsas.13 This would result in only a type of due diligence obligation incumbent on States during the authorization and supervision process.14
The second view claims that Article vi concerns secondary rules on attribution and that it acts as lex specialis to less strict customary rules of State
Under general international rules on attribution, State responsibility does not arise automatically. In broad terms, there are the following major categories whereby attribution can be established: acts by de jure organs of State, acts by de facto organs of a State or entities that carry out “governmental authority”, acts carried out by entities under a State’s control, acts of insurrectional movements which become governments, and acts that are subsequently adopted by a State as its own.16 However, if the second view of Article vi is accepted, then Article vi exceeds these grounds; as it makes States responsible for acts of non-State entities when they emanate from its territory whether by organs of government or by nsas,17 as well as for actions by their nationals falling under the national authorisation and supervision regime.18 In this respect, it can be seen as a hyper State-centric approach.
The responsibility of States for nsa conduct under Article vi imports obligations. In general, willful blindness and inaction in the face of private space activities will not fulfill the State’s obligations and will not absolve the appropriate State of responsibility.19 Dennerly calls it a ‘duty of conduct, not of result, meaning that the obligation incumbent on states is to use their best efforts to try to prevent damage or harm occurring to other states.’20 However, Stubbe goes so far as to call it a ‘responsibility to ensure’ – meaning the ‘obligation of a state to assure that the conduct of a state’s private individuals complies with
Strict State responsibility for nsa conduct follows from the etymology of the provision. The terms of Article vi emerged in this format as a compromise between the view of the Soviet Union, whereby nsa activities would be excluded from space altogether, and that of the United States, which opposed that approach.25 As a result, the wording of Article vi allowed for the possibility of non-governmental space activities, but established a strict state responsibility regime for private space activities.26
Article vi also refers to the governmental authorization process. The specific way in which that authorization process is converted to domestic law is set out in detail in Chapter 5. Nonetheless, for present purposes the implementation of international law duties, the authorization process ‘is the major tool for states to ensure that their authorized operators are able and willing to comply with existing regulations’.27 However, the provisions of the Outer Space Treaty do not specify how States have to implement this obligation. Similarly, while authors refer to a due diligence obligation to ensure the ‘effective regulation
Having reviewed the basis for States to be held responsible for nsas under the Outer Space Treaty, a key question remains as to how to determine national activity, especially in cases of large multinational nsas. In this respect, it is necessary to determine which State is the ‘appropriate State’ under Article vi.32 While the Outer Space Treaty does not further define the ‘appropriate
For natural persons, determining nationality is usually a routine matter. However, for legal entities there are various routes to determining nationality. Three criteria are normally accepted to determine the nationality of corporate entities: ‘either from the fact of incorporation, that is creation as a legal person, within a given system of domestic law, or from links to a particular state such as the center of administration (siège social) or the nationality of the natural or legal persons that own or control the company.’34 The Permanent Court of International Justice in the Barcelona Traction case focused on the State in which the company is incorporated, on whose territory it holds its seat.35
However, there is a lack of clarity regarding distinction or overlapping of the terms appropriate State, launching State, and State of registry. The relation between Articles vi, vii and viii of the Outer Space Treaty is complex in this respect. Zannoni notes that the opacity contributes to inconsistency, but is also something that States are not particularly eager to resolve, as it serves “as a convenient buffer against responsibility and liability”.36 A second option is the launching State(s), which may be held liable for any damage caused by space objects. In the case of multiple States, the launching States are jointly and severally liable for any damage caused, as determined by Article v of the Liability Convention. Finally, one view with a basis in both State practice and doctrine, though disputed, is that a launching State cannot rid itself of liability even in cases of a transfer of ownership or loss of control over the space objects.37 This then means the launching State will remain indefinitely liable for any damage caused by its space objects/space debris, even if such objects are actually owned (and launched) by private entities.
Commentators opine that multiple States may be the ‘appropriate State’ notwithstanding the grammatical awkwardness of this interpretation.41 This accords with the overarching aim of Article vi, namely to ensure that at least one State is responsible and accountable for all human actions and activities that occur in outer space.42 Significantly, the survey of State practice set out in Chapter 5 below indicates that States with space legislation have frequently framed it as applying to any nsas operating from their territory as well as to their nationals whichsoever territory they are operating from, or even to activities under their jurisdiction elsewhere.43 That nationality and/or territoriality and/or jurisdiction linkage would provide a clear and robust test for ascertaining whether any particular State is sufficiently connected to any particular nsa under Article vi. However, it would also mean that multiple States would frequently be implicated, potentially leading to disputes over which should bear primary responsibility for the nsas conduct.
Judicial practice relevant to Article vi includes examples of States regulating the conduct of nsas. This can be seen in attempted applications of Article ii of the Outer Space Treaty, which forbids national appropriation of outer
However, some authors argue that the Outer Space Treaty only prohibits the appropriation of orbital spots or areas in space and not resources extracted from celestial bodies.50 That view could be used to argue that Section 10 of the Artemis Accords confirms that there is no prohibition on extracting space resources under Article ii of the Outer Space Treaty.51 However, an alternative view maintains that all resources are part of outer space including the Moon and other celestial bodies and therefore their appropriation is prohibited
While the governmental authorization process is primarily a tool designed to make States ensure that their authorized operators comply with international law,54 the provisions of the Outer Space Treaty do not specify how States have to implement this obligation. Similarly, while authors refer to a due diligence obligation to ensure the ‘effective regulation of national activities that have the potential to cause environmental harm’,55 the parameters governing this obligation are not set out in binding space law instruments. Broad duties to avoid harm emanating from a State’s territory can be gleaned from the jurisprudence of the International Court of Justice,56 but this provides little guidance specifically tailored towards the outer space environment. The consequences of disobedience are also unclear. Larsen, for example, notes that ‘unauthorized operators cannot launch legally’ and that ‘delinquent operators should be required by the authorizing country to deorbit’.57 However, the actual practice
Based on the foregoing, Article vi of the Outer Space Treaty imposes an ostensibly strict mesh of State responsibility for national acts under their jurisdiction. However, such responsibility is merely an indirect responsibility, as States are the subjects directly responsible under Article vi. Consequently, under this provision, nsas can be held directly responsible only under national legislation of the appropriate State, which must authorize and supervise their activities, as determined by Article vi.59
1.3 Article vii
Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air or in outer space, including the moon and other celestial bodies.60
This focus on the launching State diverges from Article vi’s concentration on ‘national activities’. However, Dennerly notes that the launching State is best placed to prevent acts that would cause damage such as space collisions, suggesting a ‘best efforts obligation of due diligence to prevent acts, such as space object collisions, that would cause damage to another state is a duty incumbent on launching states.’61
Because Article vii encompasses States that launch or procure the launches of space objects, or from whose territory or facility such object is launched, and allow their territory to be used for launches, as well as State launches, it covers a wide array of conduct. However, two distinct questions appear in connection to Article vii: firstly, whether this provision can cover any environmental
Turning first to whether Article vii is capable of addressing environmental damage in outer space, the terms of Article vii of the Outer Space Treaty are unclear as to whether they would cover any environmental damage, or be restricted to damage that manifests against another State or natural or juridical person.62 Article vii does not define damage, simply declaring ‘damage to another State Party to the Treaty or to its natural or juridical persons’.63 Whether this could include the environment of outer space as an area beyond national jurisdiction and a res communis remains unclear.
For the purposes of this Convention: (a) The term ‘damage’ means loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations.
Under the Liability Convention, Articles i to vii reiterate the obligation in Article vi of the Outer Space Treaty to compensate for damage caused by space objects,65 but divide the obligation into absolute liability for damages occurring on Earth or to an aircraft in flight and fault-based liability for damages in
However, the Liability Convention provisions face challenges. Environmental damage and damage to outer space or celestial bodies by space debris is not explicitly covered by the Liability Convention. It could be argued that indirect damage to the environment is encompassed. This could occur, for example, if the damage to the space environment caused impairment of health to persons or resulted in loss of or damage to property of States, persons or international organizations. This would be in line with the victim-oriented nature of the Liability Convention, which has been set with the objective of affecting swift and just compensation to victims.68 However, the justification for liability would only be indirectly related to environmental harm.
Historic precedent provides a measure of support for this reading of ‘damage’ to encompass harm caused by space pollution such as debris. Under the Liability Convention, the sole claim presented is Canada’s in the Kosmos-954 case in 1978, which involved a former Soviet Union nuclear powered satellite disintegrating over remote areas of northern Canada.69 Canada claimed six million dollars (Canadian currency) of damages based on the Liability Convention, the Outer Space Treaty and general principles of international law. The damages covered ‘the costs of restoring the territory rendered partly unfit for use by radioactive debris scattered over large areas, hence constituting damage to property within the meaning of the Liability Convention’ as well as potentially the costs to establish a Compensation Commission.70 However, the dispute was resolved by a settlement, which was founded on a 1981 protocol
On the other hand support for the Liability Convention indirectly covering space pollution could be gleaned from Article xxi, which decrees that in the event that ‘the damage caused by a space object presents a large-scale danger to human life or seriously interferes with the living conditions of the population or the functioning of vital centres, the States Parties, and in particular the launching State, shall examine the possibility of rendering appropriate and rapid assistance to the State which has suffered the damage, when it so requests’. This recognition of affecting living conditions of all the population or the functioning of ‘vital centres’ would accord with including damage to the human environment that seriously affects the health or living conditions of persons. However, causation and fault on the part of the launching State Party to the Convention (or on the part of an entity for which the State Party was responsible) would have to be established in accordance with Article iii. Establishing causation and fault would be difficult in the outer space environment given the uncertainties of space travel, the presence of unregistered space debris, and the lack of space traffic rules.74
Regarding the status of Article vii of the Outer Space Treaty and provisions of the Liability Convention, the Outer Space Treaty currently has 114 State Parties including all space faring nations, and the Liability Convention has 98 State Parties with equally all space faring nations included. Overall, the Liability Convention should be consulted when addressing any liability for damage by space objects, particularly when read in light of the obligation under Article vi of the Outer Space Treaty concerning the supervision of nsa activities.75 The construction of the Liability Convention indicates an underlying presumption of States bringing legal suits thereunder for damage in outer
Turning to the second question of whether nsas could be held liable for damages caused by such harm, in line with the State-oriented nature of the Outer Space Treaty, Article vii focuses on the State for liability, and its terms do not provide for any direct application to nsas. However, it covers damages resulting from private space activities also, as it makes no distinction between damage caused by governmental and non-governmental entities. It simply makes the launching State(s) liable for any damage caused by their launched object, objects which launch they procured, or objects launched from its territory or platform. This approach is arguably in line with Article vi of the Outer Space Treaty,77 which seeks to render all space activity national/State activity.78
Moreover, the procedure specified in Articles viii to xxi of the Liability Convention provides further valuable insight. These specify that only a State, either the State ‘whose natural or juridical persons suffer damage’,79 the State on whose territory the damage occurred or the State whose permanent residents were harmed, can present a claim for damages to the launching State via diplomatic channels.80 Should these attempts fail, the States may establish a Claims Commission,81 similar in character to arbitration.82 This then corroborates the State-centric character of the Liability Convention, whereby States are made accountable for all damages and all conduct, including that of natural or juridical persons.
1.4 Article viii
A further provision relevant to ensuring accountability for nsa space pollution via the prism of States is Article viii of the Outer Space Treaty. Article viii decrees that the State that registers a launched object in its national registry retains jurisdiction and control over it and any personnel thereof.86 Control is the factual element enabling actual supervision of the object’s activity and jurisdiction is the legal right to determine the activity of a space object and to require other States to refrain from interfering with it.87 In this way, jurisdiction constitutes an aspect of State sovereignty, including ‘the rights and powers to exercise legislative, judicial and administrative authority over persons and objects in outer space’.88 Article viii of the Outer Space Treaty therefore effectively creates State sovereignty in space objects by granting launched objects a quasi-territorial character, similar to ships and aircraft.89
In international law, jurisdiction is typically understood as the legal right of a State to exercise legislative, judicial and administrative authority over personnel and objects. Former International Court of Justice President Judge
Article viii does not depend on the functionality of an object. This means even space debris – man-made, non-functional objects93 – remains under the jurisdiction of the State of registry.94 That feature of Article viii can be problematic for space debris remediation efforts.95 According to the jurisprudence of the International Court of Justice, the customary international law requirement to respect the sovereignty of other States includes a prohibition of unauthorized interferences in the jurisdiction of another State.96 Taken together, this would mean that other States may not interfere with an object and its space activity.97 Consequently, active debris removal efforts by third parties would require the consent of the State of registry before a piece of space debris can be removed.98
Article viii also establishes that national laws apply to and regulate human activities within a space object.99 This is for example the case at the International Space Station, where the astronauts/cosmonauts are subject to the jurisdiction of the State that has registered the module they are located
The International Space Station is governed by public entities, and is based on an Intergovernmental Agreement between the United States, Russia, Japan, Canada and 10 of the esa member States.102 Given this international agreement, the iss constitutes a public project par excellence, made for States to control. The involvement of multiple States makes the legal position complex. If persons on the iss visit another module, they arguably cross from one jurisdiction to another.103 This quasi-territorial jurisdiction within space objects arguably prevails over all other legal bases, such as, for example, their personal jurisdiction with respect to the nationality of astronauts.104 The picture is complicated further, as private entities are increasingly involved in trips to the iss. For example, Space Adventures, a private company, reports that it has arranged all nine of the space flights undertaken by private citizens to date.105 Clients of Space Adventures flying to the International Space Station have stayed on the Russian Soyuz spacecraft, where they live and work alongside professional astronauts for 10 days or more.106 With multiple States potentially involved, and with private enterprise also conducting space tourism activities on it, the iss presents one of the most multi-faceted contexts for space activities, in the sense of implicating multiple regulatory frameworks, and calls for academic
In relation to space pollution, Article viii provides a basis to hold States responsible for nsa acts. Stubbe argues that Article viii acts as a type of fail-safe and extends the responsibility of States from Article vi of the Outer Space Treaty by transposing ‘the obligations of the state with respect to preventing harm (…) to any actor under its jurisdiction carrying out a space activity; actors that would not normally be bound by the international obligation of a state.’107 He explains that this is because States are under international law obligated to regulate certain environmental protection in national laws, which through Article viii then become binding on national space actors as well. He argues that States have, for example, a ‘due diligence duty’ which requires them to regulate any national activities which could result in harm to the space environment. In effect, the provision transposes State obligations to any actor under its jurisdiction engaging in space activities.108 According to Stubbe, one such due diligence duty is the environmental impact assessment.109 However, it is not firmly established that States are required to force nsas to undertake environmental impact assessments if the State fails to do so itself.110 Nonetheless, Belgium and France, for example, require an environmental impact assessments for authorization of nsa space activity, considering effects beyond Earth’s atmosphere within their national space legislation adopted in accordance with Article vi of the Outer Space Treaty.111
2 Problems Arising from the Exclusive Focus on States to Ensure nsa Accountability
Given that space law was conceived of in a State-centric manner, it is unsurprising that the first recourse for nsa space pollution is channeling accountability via States. However, several factors restrict the utility of seeking accountability for space pollution caused by nsas exclusively via State accountability.
First, States may not be able to sufficiently monitor the wide range of nsa activities in outer space.112 As space activities generally increase and space market becomes more segmented and globally integrated,113 the amplitude and volume of private space activities may increase to the point that States cannot comprehensively supervise the totality of nsa conduct. For example, certain companies are already developing technology that may rival or even surpass that of States making it very difficult for States to supervise or even detect private space activity.114 This trend could foreshadow an age of increased space activity, producing a potentially unregulated production of space debris.
There are demonstrated cases of States that are unwilling or unable to repress acts risking serious harm to the environment committed by entities operating from or on their territory even on earth let alone in space. For example, Houthi rebels reportedly fired a missile from Yemen’s territory towards Israel in November 2023, which was intercepted by Israeli air defence.115 Given the hostilities in Yemen and its lack of control over areas from which the Houthi’s operate, it is questionable whether it could have interceded to prevent the rebels launching this strike even if it had wanted to. Moreover, States may engage in hiding behind nsas in order to keep or reach the strategic advancement – letting nsas achieve what these States are not allowed to do under international law. Even though States usually regulate their space activities, the commercial space market remains far less regulated.116 Some States, due to conflict, famine, or other disasters of human and non-human origins, are unable or unwilling to take measures even in the face of earthly environmental pollution.117
Moreover, certain powerful multinational corporations with a growing interest in space exploration have financial resources outstripping many States.118 Some large transnational corporations ‘may wield more power and influence in international environmental fora than smaller states.’119 Although Thirlway
Additionally, the inability to regulate matters within their borders may also occur where parts of States’ territories lie outside their control, typically in circumstances of armed conflict. Euphemistically termed ‘ungoverned spaces’ (‘encompassing under-governed, misgoverned, contested, and exploitable areas as well as ungoverned areas’),121 international law literature is increasingly recognizing that threats to international peace and security may emerge from such areas.122 According to Nicholas Tsagourias ‘[s]uch places are viewed as breeding grounds for non-state actors to pursue nefarious activities’.123 Interference with space activities is a growing threat; such incidents perpetrated by nsas are reportedly on the rise.124
Third, enterprising corporations, and other individuals or groups, may seek to exploit weaker regulatory regimes to engage in potentially more profitable space exploration. Certain States may adopt a less stringent regulatory approach in order to attract the investment associated with space ventures. Even if the variation in regulation arises merely as a matter of different interpretations of instruments such as the iadc guidelines, these variations may still introduce incentives for private entities to seek out the lowest common regulatory denominator.128
This raises the risk of non-State entities engaging in a form of forum shopping by utilizing ‘flag of convenience countries’.129 By registering in countries with less rigorously enforced standards, they may obtain a competitive
When translated to the outer space domain, flag of convenience practices also pose a risk. While the Liability Convention provides a financial incentive for launching States to ensure that nsas adhere to rigorous safety procedures,134 the growing number of States involved in space activities increases the risk of opportunistic practices. Neither the Liability nor the Registration Convention, for example include references to a genuine link, therefore leaving open how the definitions of the launching State, that is ‘the State that launches’ or ‘the State that procures’ are to be interpreted, thus leaving it unclear whether procurement or launch by nsa from a global commons would fall under State that launches or procures. This risks nsas registering their activities under jurisdictions with lower controls. A correspondingly heightened possibility of incidents resulting in space pollution will follow. With private actors increasingly involved in space activities, the likelihood of seeking out locations with more permissive regulatory approaches is heightened, elevating the risk of nsas gravitating to States that are unable or unwilling to enforce strict responsibility for causing space pollution rises.135 Already examples of this forum shopping have emerged, such as in the case of Swarm Technologies, which effectively circumvented a license denial by the US Federal Communications Commission, which had safety concerns, by launching experimental satellites
In the area of itu allocation of geo slots for satellites, there is a discernable risk of enterprising companies exploiting the system. The structure of the Constitution of the International Telecommunication Union and the Convention of the International Telecommunication Union indicate that only States can be members.137 Protections against harmful interference also refer to those of ‘countries’.138 States have been accused of gaming the allotment system, such as Tonga’s request for six slots for the reported purpose of ‘parking spaces’ which it could sell to private entities.139 However, the system also lends itself to private entities, which will effectively pay the fees required by the itu to administer the designation of slots,140 misusing the system and potentially clogging up the relatively limited number of orbits, particularly in the geo-stationary band.141 The over-subscription of satellite spots can result in the congestion of these bands and potentially heighten the risk of harmful collisions and the generation of space pollution.
Fourth, the indeterminacy of the attributes of statehood constitutes a further issue with exclusively focusing on States for accountability for space pollution. A fixation on entities formally recognised as States (or officially recognized governments) will run into the problematic reality of entities with debated or contested status, such as Afghanistan, Myanmar, Libya, Syria, Kosovo, and other areas where either the government or the entity itself are not recognised by all other established States.142 In the gray area of States or territories under
Fifth, the State sovereignty approach is premised on nsas only being able to act under the jurisdiction of States. However, nsa activities may emanate from areas outside any State’s control, such as the high seas or the poles, and without State authorization.143 In such circumstances, it is unclear which State, if any, would be obliged to take action and under which legal notion they could do so, particularly if the nsa disclaimed or hid any nationality (such as in the case of an irredentist movement).
Finally, addressing nsa space pollution through the indirect route of State accountability inherently requires extra layers of linkage to connect the conduct to a State. The issues of causation and attribution are complex and dynamic. Causation of space pollution, for example by significant amounts of space debris, will be very hard to establish due to the unclear legal standard and the typically unclear factual circumstances.144 As Viikari notes, ‘[i]n most cases it is almost impossible to prove in a given case that the damage was even caused by space debris, that a particular piece of debris is part of a registered space object of a certain state and, furthermore, that there exists such fault (when the incident takes place in outer space) on the part of the launching state that it can be held liable for the damage.’145
For these linkages, legal ambiguities cause difficulties. Legally, to characterize conduct as negligent requires a sufficiently common understanding and acceptance of the applicable yardstick to assess negligence. As noted by Radi, ‘the characterization of conduct as negligent begs the question of the applicable yardstick to appraise negligence’.146 Given that the Liability Convention provides no explicit definition of negligence, another source which may be
The issue becomes particularly complex when multiple States are involved. To provide an example, a US company called IntelSat, llc, which was wholly owned by IntelSat Global, sa, a Luxembourg company, launched IntelSat-22 in 2012. This was a geosynchronous telecommunications satellite. Whereas the satellite itself was licensed by the United States, it had a payload licensed by Australia (the Australian Defense Forces had placed an ultra-high frequency (uhf) communications payload on the satellite for military communications purposes).148 In the event of an explosion or other incident causing space debris, a detailed investigation would likely be required to identify the cause and source of the damage in order to address questions of accountability, as well as for the purposes of indemnification between joint launching States under Article 5 of the Liability Convention.
A further legal restriction that arises from placing all nsa acts in space under the rubric of State control is the prospect of non-justiciability being argued on the basis of foreign act of State doctrine. If all nsa conduct were attributable to States, then any efforts to redress harmful conduct through courts may be rendered inadmissible pursuant to the act of State doctrine.149 This would significantly restrict the prospects of exercising universal jurisdiction to address serious space pollution in domestic courts, as discussed below.150
Individually, these problems have varying degrees of risk of harm to the outer space environment. The probabilistic risk of a terrorist organization, acting beyond the control of any State, managing to launch an object to space designed to detonate and cause large emissions of space pollution is low, but the impact would be extremely high. Contrastingly, the likelihood of corporate nsas using flags of convenience to lower regulatory constraints is relatively
Gutzman (2017), p. 1.
See Zhao (2018), p. 6 citing Juan Davalos, ‘International standards in regulating space travel: Clarifying ambiguities in the commercial era of outer space’ (2016) 30 Emory International Law Review p. 4, (‘with more and more countries joining the space club, space legislation at the international level proves to be difficult.’).
Fogo (2017), p. 182. See also James Crawford, Brownlie’s Principles of Public International Law (9th ed.) (Oxford University Press, 2019) (‘international law remains highly state-centric, a position reinforced from the early nineteenth century by the development and subsequent dominance of positivism as an account of law and legal obligation.’).
Dan St. John, ‘The Trouble with Westphalia in Space: The State-Centric Liability Regime’ (2012) 40(4) Denver Journal of International Law and Policy, p. 687; Elena Cirkovic, ‘The Next Generation of International Law: Space, Ice, and the Cosmolegal Proposal’ (2021) 22 German Law Journal, p. 151; Frans von der Dunk, ‘The Origins of Authorization: Article vi of the Outer Space Treaty and International Space Law’ (2011b) 69 Space, Cyber, and Telecommunications Law Program Faculty Publications, pp. 1–3; S.G. Sreejith, ‘Whither International Law, Thither Space Law: A Discipline in Transition’ (2008) 38 California Western International Law Journal, p. 392.
Michael C. Mineiro, ‘fy-1c and USA-193 asat Intercepts: An Assessment of Legal Obligations under Article ix of the Outer Space Treaty’ (2008) 34 Journal of Space Law p. 355; Biswanath Gupta, Tamoghna Agasti, ‘The Curious Case of Article ix and Outer Space Environment’ (2022) 2 Journal of Environmental Impact and Management Policy, pp. 2, 11.
In doctrine, two distinct views on the effects of Article vi can be discerned. The first is based on a premise that Article vi concerns merely primary obligations of States, namely to authorize and supervise acts of private persons (see Gaetano Arangio-Ruiz, ‘State Responsibility Revisited: The Factual Nature of the Attribution of Conduct to the State’ (2017) 6 Rivisita di diritto internazionale, pp. 126, 127; Sergio Marchisio, ‘Il Trattato sullo spazio: passato, presente e future’ (2018) 1 Rivisita di diritto internazionale, p. 201), whereas the second view claims that Article vi concerns secondary rules on attribution (as a form of lex specialis to the customary rules of State responsibility on attribution from Articles on State Responsibility) (see Hobe, Pellander (2012); BinCheng, ‘Article vi of the 1967 Space Treaty Revisited: ‘International Responsibility’, ‘National Activities’ and ‘The Appropriate State’’ (1998) 26 Journal of Space Law 1, p. 14; von der Dunk (2011b), pp. 3, 5; Stubbe (2018), p. 95; Horst Bittlinger, ‘Private Space Activities: Questions of International Responsibility, in Proceedings of the 30th Colloquium on the Law of Outer Space (Brighton, United Kingdom)).
Stubbe notes that, because the first sentence of Article vi does not differentiate between governmental and non-governmental entities, ‘[t]his can only be understood to mean that a state is responsible for all national space activities, included those carried out by non-governmental entities.’ See Stubbe (2018), p.95. Consequently, he asserts that ‘[a]rticle vi sentence 1 of the Outer Space Treaty establishes a specific attribution rule for all outer space activities, in addition to those of ilc Articles on State Responsibility and in derogation from the non-attributability of private conduct under customary law (also citing Horst Bittlinger, ‘Private Space Activities: Questions of International Responsibility’ (1987) Proceedings of the 30th Colloquium on the Law of Outer Space (American Institute of Aeronautics and Astronautics, 1987), pp. 191–196). See also Gutzman (2017), p. 8.
See Chapter 3, Section 2. See also Beard and Stephens (2024), pp. 111–112 (arguing that automatic attribution of nsa conduct to a State in the context of jus ad bellum, ‘it could give rise to manifestly absurd results’).
Arangio-Ruiz (2017), pp. 126, 127; Marchisio (2018), p. 201.
Dennerley calls it a ‘duty of conduct, not of result, meaning that the obligation incumbent on states is to use their best efforts to try to prevent damage or harm occurring to other states.’, see Dennerley (2018), p.294.
Hobe, Pellander (2012), p. 9; Cheng (1998), p. 14; von der Dunk (2011b), pp. 3, 5; Stubbe (2018), p. 95; Bittlinger (1987), pp. 191–196.
See Chapter 3, Section 2 on Articles on State Responsibility.
Article vi provides that ‘States Parties to the Treaty shall bear international responsibility for national activities in outer space, […] by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.’
Beard and Stephens (2024), pp. 114–115.
Stubbe (2018), p. 89, fn. 139; von der Dunk (2011b), pp. 7–8.
Dennerley (2018), p. 294.
Stubbe (2018), p. 90 referring to Article 139 para. 1 unclos; and Article 4 para. 4 Annex iii unclos; itlos, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011 (itlos Reports 2011, p. 10), para. 108.
See von der Dunk (2011b), p. 4.
Cheng (1997), p. 237. But see Stubbe, arguing that Article vi should be read to open the gate to responsibility on the part of States, but not to displace the requirement of showing the usual objective and subjective requirements of State responsibility (‘[t]he criterion that needs to be fulfilled for entailing international responsibility of a state – the internationally wrongful act with its objective and subjective elements – is not at all modified by Article vi sentence 1 of the Outer Space Treaty.’); Stubbe (2018), p. 87.
Stubbe (2018), p. 87.
Ribbelink (2009), pp. 64–69.
See von der Dunk (2011b), p. 4.
Larsen further notes that ‘unauthorized operators cannot launch legally’ and that ‘delinquent operators should be required by the authorizing country to deorbit’, see Larsen (2018), p. 483.
Stubbe (2018), p. 200.
icj, Corfu Channel Case (U.K. v. Albania), Judgment; Dennerley (2018), p. 293; icj, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 11 July 1996 (icj Reports 1996, p. 595), para. 430; icj, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, para. 101; icj, Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment of 16 December 2015 (icj Reports 2015, p. 665), para. 104. See also Dennerley (2018), p. 294.
Larsen (2018), p. 483.
Jeff Foust, ‘faa again delays completion of Starship environmental review’ Space News (26 March 2022) (available at
See Karl-Heinz Bockstiegel, ‘Term Appropriate State in International Space Law, The Definitional Issues in Space Law’ (1994) 37 Proc Law Outer Space, p. 77. See also Ziemblicki and Oralova (2021), p. 4.
Pavesi (2018), p. 19.
Stubbe (2018), p. 262.
icj, Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment of 5 February 1970 (icj Reports 1970, p. 3), para. 70.
Diego Zannoni, ‘The Liability Regime for Private Activities in Outer Space: Is There a Normative Gap?’ (2021) 59(1) Archiv des Völkerrechts, p. 2.
See Stubbe (2018), pp. 278–279. See also Viikari, p. 78 (noting that the Registration Convention does not address the situation of registering space objects in case of transfer of ownership to an entity in a different State).
Registration Convention, Article ii.
Registration Convention, Article iv.
Mick Schmidt-Tedd, ‘Article viii’ (2009) in Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl, Gérardine Meishan Goh (eds.) The Cologne Commentary on Space Law (Vol. i) (Carl Heymanns, 2009), p. 153.
Stephan Hobe et al., ‘Cologne Commentary on Space Law: In Three Volumes’ (2009) Köln: Carl Heymanns, at p. 110 In a case of cooperation between two States’ entities, ‘a national activity (of the governmental agency or non-governmental entity) in cooperation with another national activity (of another governmental agency or non-governmental entity). Consequently, two or more States might be internationally responsible.’ Gutzman (2017), p. 8.
Hobe et al. (2009), p. 9.
See Chapter 5. Interestingly, this territoriality and/or nationality approach approximates the key jurisdictional bases of the International Criminal Court, as established under Article 12 of the Rome Statute.
Virgiliu Pop, ‘The men who sold the Moon: science fiction or legal nonsense?’ (2001) 17(3) Space Policy, p. 196; Alan Wasser, Douglas Jobes, ‘Space Settlements, Property Rights, and International Law: Could a Lunar Settlement Claim the Lunar Real Estate It Needs to Survive’ (2008) 73(1) Journal of Air Law and Commerce, p. 50.
United States District Court for the District of Nevada, Nemitz v. US, 2004 wl 316704 (26 April 2004).
S. Hobe (2019), p. 165; Lyall, Larsen (2009), pp. 184–185; F. Tronchetti (2013), pp. 13–14. This opinion is further confirmed by Outer Space Treaty drafting history (see Steven Freeland, Ram Jakhu, ‘Article ii’ in Hobe et. al. (2009), pp. 51–53).
Freeland, Jakhu (2009), pp. 51–53.
Ram Jakhu and Steven Freeland, McGill Manual on International Law Applicable to Military Uses of Outer Space: Volume 1 – Rules (McGill University, 2022), Rule 113.
Hobe (2019), pp. 165; Freeland and Jakhu (2009), pp. 51–53.
Moon Agreement Article 11. See also Gaja Čeferin, Mednarodnopravna Ureditev Rudarjenja na nebesnih telesih (Master Thesis, University of Ljubljana, 2018); Ricky Lee, Law and Regulation of Commercial Mining in Outer Space (Springer, 2012).
Larsen further notes that ‘unauthorized operators cannot launch legally’ and that ‘delinquent operators should be required by the authorizing country to deorbit’, see Larsen (2018), p. 483.
Stubbe (2018), p. 200.
icj, Corfu Channel Case (U.K. v. Albania), Judgment; Dennerley (2018), p. 293; icj, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, para. 430; icj, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, para. 101; icj, Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, para. 104. See also Dennerley (2018), p. 294.
Larsen (2018), p. 483.
SpaceX´s launch of a batch of Starlink satellites was delayed due to the faa requiring changes to be made to the satellites following a complaint from the astronomical community.
Outer Space Treaty, Article vii.
Dennerley (2018), p. 294.
For more on the definition of damage see Kerrest and Smith (2009), pp. 126–146.
icj, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27 December 1986 (icj Reports 1986, p. 14), p. 137.
As discussed in Chapter 1, there is no authoritative definition of space object and whether it encompasses space debris. However, this article works on the premise that the term space object from article i of the Liability Convention encompasses space debris, and both space object and space debris are encompassed under ‘object launched into outer space’ from article vii of the Outer Space Treaty. For a discussion on the matter see Hobe (2019), p. 111; Smith and Kerrest (2013), pp. 109–110; Kerrest and Smith (2009), pp. 50–56; Schmidt-Tedd and Mick (2009), pp. 153–155.
Liability Convention, Article ii.
Liability Convention, Article iii. See also Viikari (2008), p. 66.
See Liability Convention, Preamble; Lyall and Larsen (2009), p. 107; Lesley Jane Smith and Armel Kerrest, ‘The 1972 Convention on International Liability for Damage Caused by Space Objects’ (2013) in Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl (eds.), Peter Stubbe (assist. Ed.) The Cologne Commentary on Space Law: Vol. ii (Carl Heymanns, 2013), pp. 83–227.
Viikari (2008), p. 72.
Viikari (2008), p. 72.
See Bilateral and Multilateral Agreements Governing Space Activities: Disintegration of Cosmos 954 Over Canadian Territory in 1978, Protocol Between The Government of Canada and The Government of the Union Of Soviet Socialist Republics, 2 April 1981.
Viikari (2008), p. 72.
Viikari (2008), pp. 72–73.
See further Chapter 3, Section 2.
See, e.g., Smith and Kerrest (2013), pp 108–110.
Armel Kerrest, ‘Remarks on the Notion of Launching State’ (1999) 42 Proceedings of the International Institute of Space Law, p. 314; Armel Kerrest and Lesley Schmidt, ‘Article vii’ (2009) and Bernhard Schmidt-Tedd and Stephan Mick, ‘Article viii’ both in Hobe et. al (2009), at pp. 128–30 and p. 147, respectively.
Michael Gerhard, ‘Article vi’ (2009) in Hobe et. al. (2009), pp. 109–116. But see Ziemblicki and Oralova (2021), p. 4 (noting that the USA and India became engaged in a dispute regarding responsibility for nsa activites and that ‘[i]t became apparent that Articles vi and vii of the Outer Space Treaty were interpreted differently by the states involved and that the current space law regime is unable to resolve this type of transnational disagreement.’).
Liability Convention, Article viii.
Liability Convention, Articles viii, ix, x.
Liability Convention, Article xiv.
See Lesley Jane Smith and Armel Kerrest and Fabio Tronchetti, ‘The 1972 Convention on International Liability for Damage Caused by Space Objects’ (2013) in Hobe et. al. (2013), pp. 244–372.
Kerrest (2017), pp. 9–14.
Kerrest (2017), pp. 13–18.
Lafferanderei (2005), pp. 230–231.
Lachs (2010), pp. 65–75; Schmidt-Tedd and Mick (2009), pp. 156–160.
V.S. Vereshchetin, ‘International Space Law and Domestic Law: Problems of Interrelations’ (1981) 9 Journal of Space Law, pp. 31–32.
Cheng (1997), p. 467; Lachs (2010), pp. 65–75; Gbenga Oduntan, Sovereingty and Jurisdiction in the Airspace and Outer Space (Routledge, 2012).
Lachs (2010), p. 166.
Cheng (1997), p. 480.
Mark Sundahl, ‘Legal Status of Spacecraft’ in: Routeledge Handbook of Space Law (Ram Jakhu, Paul Stephen Dempsey (eds.)) (Routledge) p. 44; Setsuko Aoki, ‘In Search of the Current Legal Status of the Registration of Space Objects’ (2010) in 61st International Astronautical Congress 2019 (iac 2010), Prague, Czech Republic.
Hobe (2019), pp. 111–112.
Schmidt-Tedd and Mick (2009), p. 154.
For more on the topic see Annette Froehlich (ed.), Space Security and Legal Aspects of Active Debris Removal (Springer, 2019).
icj, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, para. 202.
See Gordon Chung, ‘Jurisdiction and Control Aspects of Space Debris Removal’ (2019), in Froehlich (2019), p. 38; Lachs 2010, p. 69; Cheng (1997), pp. 72, 86.
Chung (2019), pp. 38–40.
Stephan Hobe, ‘The Legal Framework for a Lunar Base Lex Data and Lex Ferenda’ (1997), in Gabriel Lafferranderie und Daphné Crowther (eds) Outlook on Space Law over the Next 30 Years (Kluwer Law International, 1997) pp. 135–143.
Agreement Between the United States of America and Other Governments Concerning Cooperation on the Civil International Space Station (29 January 1998) (available at
See Loren Grush, ‘The first alleged crime committed in space raises questions about jurisdiction in orbit’ The Verge (27 August 2019) (available at
Hobe (2010), p. 872.
iss iga Article 5; ‘The International Space Station’, Frans von der Dunk and Marcel M.T.A. Brus, (Eds.) (Brill, 2006); Percy J. Blount, ‘Jurisdiction in Outer Space: Challenges of Private Individuals in Space’ (2007) Journal of Space Law, pp. 312–313.
Vereshchetin (1981), p. 32.
Space Adventures, Live Onboard The International Space Station’ (available at
See Hobe (2010), p. 873.
Stubbe (2018), p. 200.
Stubbe (2018), p. 200.
Stubbe (2018), p. 200 (arguing that conducting an eia accords with Article 7 of the Articles on Transboundary Harm and that this would apply to space debris causing damage to other space objects under control or jurisdiction of another state. For the Articles on Transboundary Harm see Article 1 ‘The present articles apply to activities not prohibited by international law which involve a risk of causing significant transboundary harm through their physical consequences.’; Article 2(a) “risk of causing significant transboundary harm” includes risks taking the form of a high probability of causing significant transboundary harm and a low probability of causing disastrous transboundary harm;’ Article 2(c): ‘“transboundary harm”’ means harm caused in the territory of or in other places under the jurisdiction or control of a State other than the State of origin, whether or not the States concerned share a common border; … ’).
See generally Stephen Eric Mustow, ‘Environmental impact assessment (eia) screening and scoping of extraterrestrial exploration and development projects’ (2018) 36(6) Impact Assessment and Project Appraisal, pp. 467–478.
Mustow (2018), pp. 467–469. See also William R. Kramer, ‘In dreams begin responsibilities – environmental impact assessment and outer space development’ (2017) 19(3) Environmental Practice, p. 130. See also Chapter 5.
For the growing range of space activities by private actors, see Alessandra Vernile, The Rise of Private Actors in the Space Sector (Springer, 2018), Introduction, p. xxii.
Guglielmo S. Aglietti, ‘Current Challenges and Opportunities for Space Technologies’ (2020) 1 Frontiers in Space Technologies, p. 1; Bhavya Lal, ‘Reshaping Space Policies to Meet Global Trends’ (2016) 32 Issues in Science and Technology, p. 4.
Aerospace startup Swarm Technologies already launched a few satellites that were deemed too small to be trackable, which is why they were at first denied a license. See: Loren Grush, ‘Company that launched satellites without permission gets new license to launch more probes’ The Verge (4 October 2017) (available at
Harriet Barber, ‘How Israel shot down a ballistic missile in space for the first time’, Telegraph, 5 November 2023 (available at
Stephen M. McCall (2020) Challenges to the United States in Space, Congressional Research Service Report if10337.
Whilst such States would typically not have the financial means to launch space objects, they may nonetheless attempt to do so, just as the Ugandan dictator Idi Amin attempted to do so. Moreover, the prospect of private entities using such States as launching locations is a potential risk.
Amazon’s market cap, for example, is larger than the gdps of 92 percent of the world’s countries. See Omri Wallach, ‘The World’s Tech Giants, Compared to the Size of Economics’ Visual Capitalist (7 July 2021) (available at
Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (4th ed.) (Cambridge University Press, 2018), p. 53.
Hugh Thirlway, ‘The Role of Non-State Actors: A Response to Professor Ryngaert’ (2017) 64, Netherlands International Law Review, p. 145.
Nicholas Tsagourias notes that an ungoverned space is defined in a rand report as ‘[a]n area in which a state faces significant challenges in establishing control. Ungoverned territories can be failed or failing states, poorly controlled land or maritime borders, or areas within otherwise viable states where the central government’s authority does not extend.’ See Nicholas Tsagourias, ‘Non-State Actors, Ungoverned Spaces and International Responsibility for Cyber Acts’ (2016) 21 Journal of Conflict and Security Law 3, pp. 458 citing Angel Rabasa, Steven Boraz, Peter Chalk, Kim Craigin, Theodore W. Karasik, Ungoverned Territories: Understanding and Reducing Terrorism Risks (2007) (Rand: Project Air Force). See also Anne L. Clunan and Harold A. Trinkunas, Ungoverned Spaces: Alternatives to State Authority in an Era of Softened Sovereignty (Stanford University Press, 2010), pp. 28–29.
Tsagourias (2016), p. 455 citing Robert D. Lamb, Ungoverned Areas and Threats from Safe Havens: Final Report of the Ungoverned Areas Project, Office of the Deputy Assistant Secretary of Defense for Policy Planning (2008) (available at
Tsagourias (2016), p. 455. He notes that, under Article 9 of the Articles on State Responsibility, the conduct of a person or group exercising elements of governmental authority due to the absence or default of the official authorities (for example where there is total or partial collapse of governmental authority) can constitute an act of the State where they are located. Under Article 10, the conduct of an insurrectional movement that replaces governmental authority or establishes a new state are considered an act of the State where it occurs.
Fogo (2017), p. 190 citing Deborah Housen-Couriel, ‘Disruption of Satellite Transmissions Ad Bellum and In Bello: Launching a New Paradigm of Convergence’ (2012) 45(3) Israel Law Review, pp. 431, 440.
Space Security 2004, p. 14; Viikari (2008), p. 90.
Space Security 2004 (available at
Space Security 2004, p. 14; Viikari (2008), p. 90.
Larsen notes that the implementation of the iadc Guidelines is not uniform as they must be ‘implemented in accordance with their interpretation by each nation-state’; see Larsen (2018), p. 480.
Larsen (2018), pp. 491–492, 515 (‘Because the regime would not be universal, it would suffer from the competitive freedom of countries which remain unregulated and become flag of convenience countries. Experience indicates that some non-government operators find it to be in their commercial interest to establish themselves in such flag-of-convenience countries in order to enjoy a competitive advantage. If major operators chose to move to flag-of-convenience countries, then the effort of more stringent space debris regulation could be defeated.’).
Larsen (2018), p. 515.
Frans von der Dunk, ‘Towards “Flags of Convenience” in Space?’ (2012) Space, Cyber, and Telecommunications Law Program Faculty Publications, pp. 76–78.
Von der Dunk (2012), pp. 78–79.
Von der Dunk (2012), pp. 86–90.
On the meaning of ‘likelihood’, guidance can be taken from Principle 2(3) of United Nations General Assembly Resolution 47/68, ‘Principles Relevant to the Use of Nuclear Power Sources In Outer Space’, which provides that ‘the terms “foreseeable” and “all possible” describe a class of events or circumstances whose overall probability of occurrence is such that it is considered to encompass only credible possibilities for purposes of safety analysis’.
Macchi (2025), p. 63–64.
See, e.g. Constitution of the International Telecommunication Union, Article 1(a) (‘to maintain and extend international cooperation among all its Member States for the improvement and rational use of telecommunications of all kinds.’). See also the Radio Regulations which operate in conjunction with the International Telecommunication Union framework, Section 1, 1.2: defining ‘administration’ as ‘[a]ny governmental department or service responsible for discharging the obligations undertaken in the Constitution of the International Telecommunication Union, in the Convention of the International Telecommunication Union and in the Administrative Regulations (cs 1002).’
Constitution of the International Telecommunication Union, Article 2(b).
Jannat C. Thompson, ‘Space for Rent: The International Telecommunications Union, Space Law, and Orbit/Spectrum Leasing’, (1996) 62 Journal of Air Law and Commerce, pp. 280–283.
Viikari (2008), pp. 89, 92–93.
Thompson, p. 284. See also Jan Smits, Legal Aspects of Implementing International Telecommunications (Martinus Nijhoff, 1991).
Tsagourias (2016), pp. 455–460.
Chapter 4, Section 1; Diego Zannoni, ‘The Liability Regime for Private Activities in Outer Space: Is There a Normative Gap?’ (2021) 59(1) Archiv des Völkerrechts, pp. 1–2.
Viikari (2008), p. 71 (Viikari notes that ‘[r]egardless of the interpretation of ‘space object’, mere activity involving a risk of damage, no matter how hazardous, can never result in liability under the provisions of the UN space treaties. Moreover, even in cases of indisputable material damage, proving the fault and the causality required is often an insurmountable obstacle. For instance, even if debris particles of all sizes were included in the legal definition of a ‘space object’, great practical difficulties would remain in establishing liability of the launching state.’).
Viikari (2008), p. 71.
Radi (2023), p. 11.
Radi (2023), p. 11; Joel A Dennerley, ‘State Liability for Space Object Collisions: The Proper Interpretation of ‘Fault’ for the Purposes of International Space Law’ (2018) 29 European Journal of International Law 281–301.
Gutzman (2017), p. 2 citing United States Federal Communications Commission, Intelsat-22 Grant of Application for Satellite Space Systems Authorization with Attachment to Grant (ibfs File No. sat-loa-20110929-00193) (2012) and Jeff Foust, ‘An opening door for hosted payloads’ SpaceNews (30 October 2012) (available at
See generally Philippa Webb, ‘International Law and Restraints on the Exercise of Jurisdiction by National Courts of States’, in Malcolm Evans (ed.) International Law (5th ed.) (Oxford University Press, 2018), pp. 316–348.