Law, College of


Date of this Version



Published by von der Dunk in Proceedings of the Forty-Seventh Colloquium on the Law of Outer Space 161-171 (1994). Copyright 1994, F.G. von der Dunk. Used by permission.


Wherever commercial activities are undertaken, the question of liability for harmful effects of those activities to others is one of the first things to come to a lawyer's mind. With space activities of course, as long as endowed with commercial character, it is no different. Nevertheless, the special character of space activities as a category and space as an area, reflected in the corpus juris spatialis which has developed over the past decades as a lex specialis to the lex generalis of general public international law, provides this question of liability with a number of special features when regarded in this context.

Where time and again confusion arises as to what "liability" means in theory and, as a consequence, entails in practice, before focussing on the issue of liability for commercial space activities it seems adamant to provide some clarity on these issues to allow sensible dialogues and discussions. The present paper therefore purports to survey a number of general aspects which arise in respect of liability as a notion common to more or less all municipal legal systems and to international law as a whole, and then to analyze briefly how these aspects specifically relate to the issue of commercial space activities. Hence, an inventory is made of the most important aspects of the notion of liability in theory, which should be helpful in clarifying the specific juridical consequences of liability for commercial space activities - and at least focusses discussions. Among these aspects, some of the most important relate to the intricate relationship between public international and private, civil liability, and the relevance of the notion of the "appropriate state" for the field of liability. A short comparison with the doctrine of state responsibility, as it has developed in the state-to-state relationship defined by international law and transplanted into space law, is unavoidable on some of the subissues concerned.

Theoretically speaking, eight different aspects of "liability" are submitted to be of paramount importance for any analysis of liability as it operates vis- á-vis commercial activities. When surveying these eight paramount aspects of any liability regime, at the same time by relating them to the specifics both of space activities and of the space law-liability regime, as illustrated by 'legal facts' of both international and national brand, the problems which remain with respect to liability for commercial space activities are taken stock of, and the fundamental character of the relationships between public international and private liability, respectively international liability and state responsibility are highlighted. It is submitted, that any analysis of the issue of commercial activities and the related liability questions should at least take account of the inventory of problems thus provided.