Law, College of
Date of this Version
The relation between the two legal notions of 'responsibility' and 'liability' in space law has never been dealt with in a comprehensive fashion. The paper sets out to do this, although the problem turns out to be too complex to really realize that goal. First it goes back to those notions as they are dealt with in general international law, where their relation has indeed been a topic for discussion and research. The notions are analyzed with three key concepts as guidelines: the indispensable criteria for each of the notions to become applicable; the role of 'due care' as a special problem regarding attributability in each of the two cases; and the consequences once the respective notions are found to be applicable.
This analysis leads to the conclusion, that the traditional construction of the two concepts in general international law is a misconstruction. The International Law Commission's efforts at redefinition of the concepts indeed manages to avoid this misconstruction, however, at the cost of creating a misconception.
Transferred to space law, analysis of the two notions along the same lines leads to the conclusion that here the traditional construction is followed, with only a minor improvement relating to the 'due care' concept. The consequences of this misconstruction are then indicated, and claimed to be not merely of theoretical and academic importance.
On the other hand, it is argued that application of the ILC's misconception to space law would not solve those problems either. For these reasons finally a much more simplifying option is proposed, which would mean, however, in space law as well as in general international law, a radical change, or rather amendment to the existing rules in those respects, read Articles VI and VII of the Outer Space Treaty as to outer space.
Published in the Proceedings of the 34th Colloquium on the Law of Outer Space (1992): 363-371. Copyright 1992, Frans von der Dunk. Used by permission.