MarIus

3.3.1 International responsibility for wrongful acts

To gain a comprehensive understanding of the legal dynamics of State responsibility in space – and later, the fault standard of State liability – it is necessary to also examine how general international law regulates breach of State obligations. After all, these “background” rules also apply to space activities.^{(4) Because space law is a part of international law, c.f the OST Article III (n. 143 and 144) as discussed in section 1.4.2.} A key document in this context is the 2001 ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts [ARSIWA], increasingly regarded as a reflection of customary international law.^{(5) Steer (n. 106); Responsibility of States for Internationally Wrongful Acts, adopted by A/RES/56/83, 12 December 2001. Provided in Report of the ILC on the Work of its Fifty-third Session, Official Records of the UNGA, 56th session, Supp. No. 10. A/56/10 (2001).} These Articles elucidate secondary rules of State responsibility, described in the ARSIWA commentary as “general conditions under international law for the State to be considered responsible for wrongful actions or omissions, and the legal consequences which flow therefrom”.^{(6) Draft articles on Responsibility of States for Internationally Wrongful Acts with commentaries, p. 31, para. graph 1. Available online: https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf. Last accessed May 22, 2024.}

Article 1 states:

“Every internationally wrongful act of a State entails the international responsibility of that State.”

Article 2 outlines:

“There is an internationally wrongful act of a State when conduct consisting of an action or omission:

1. is attributable to the State under international law; and

2. constitutes a breach of an international obligation of the State”

Accordingly, both an action and an omission can constitute an internationally wrongful act if such conduct is a) attributable to the State under international law and b) constitutes a breach of an international obligation of the State. Furthermore, the act is wrongful if it is not subject to circumstances precluding wrongfulness.^{(7) Ibid. Chapter V.} Chapter II of the draft Articles addresses what is attributable to the State under international law. The conduct attributed to a State includes actions by its organs, individuals, or entities exercising elements of governmental authority, regardless of their formal status or level within the state. This also extends to organs acting under the control of another state, those exceeding their authority, persons under the direction or control of a State, persons acting exercising governmental elements in default of official authorities, and even insurrectional movements that achieve governmental status, and otherwise conduct acknowledged and adopted by a State as its own.^{(8) Ibid. Articles 4 through 11.} Hence, a State is responsible for acts attributed through a direct or indirect link to it.^{(9) Lyall and Larsen (2018), 60.} The reach is therefore quite broad.

The ARSIWA, however, does not attribute acts of nationals to a State unconditionally. A prerequisite for attribution is that the State exercises some sort of influence or control over the situation. Thus, Article 8 states that acts of ‘private persons’ may be attributable to the State when under the direction or control of the State. Accordingly, there is no ‘automatic’ imputability for the State to its nationals. Scholars confirm this view, arguing that, in international law, States are usually not unconditionally responsible for the activities of their nationals.^{(10) Ibid.} Whether the activities of private entities are attributed arguably depends on the specific obligations involved.^{(11) Crawford (2019), 527.}

Furthermore, for it to be a wrongful act, the conduct must b) also constitute a breach of an international obligation of the State.

Article 12 defines what constitutes a breach of an international obligation (b). It states that:

“There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regard-less of its origin or character.”

A breach of an international obligation is determined by the contents of the primary rule establishing the obligation.^{(12) 2001 Draft articles on Responsibility of States for Internationally Wrongful Acts with commentaries, p. 54. Available online: https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf. Last accessed May 22, 2024.} For example, the primary rule of the OST Article VI, second sentence, establishes an international obligation to authorize and continually supervise non-governmental entities.

As discussed earlier, the duty of conduct that States must maintain, is not defined, but there are certain standards of diligence that indicate how a State should act to ensure conformity with the obligation.^{(13) See section 3.1.1.} In space resource activities, this implies that not only must States themselves adhere to the non-appropriation principle, but they must make certain that private entities do as well. If the State fails to ensure conformity, it may breach the obligation. Subsequently, if the act is also attributable to the State, it is considered a wrongful act and the secondary rules of responsibility for the breach enters.

3.3.2 Lex specialis: State responsibility for space activities

In space law, the criteria of State responsibility are formulated in unique terms. The OST, particularly Article VI, clearly mandates that States Parties shall bear international responsibility for national activities conducted in space, including those by non-governmental entities. The result is arguably a “[…] much more far reaching […]” responsibility for private entities involved in space activities, than what is found in general international law.^{(14) As put by Hobe (2019), 128.} Consequently, in space activities, the conduct of private entities is arguably already attributed to the State, often through jurisdictional ties, simplifying the attribution issues encountered in other domains of international law.^{(15) The OST Article VI, first sentence.}

There are different views on what the State the responsibility for non-governmental entities stipulated in the OST entails. Marboe argues that the responsibility regime assigned to States Parties through Article VI does not attribute every national space activity to the State, but that the obligation, as per the second sentence, rather pertains to ensuring that all national activities are conducted in accordance with the obligations of the OST.^{(16) Marboe (2015), 131-132.} Thus, State responsibility for non-governmental entities per Article VI, according to Marboe, is not directly attributed to the State for all activities of its nationals. If understood correctly, Marboe argues that attribution of acts by non-governmental entities to the State depends on the conduct of the State and whether it has adequately acted to ensure that these entities conduct their activities in accordance with the OST.

Gerhard poses a slightly different view. Focusing on the meaning of jurisdictional authority over non-governmental entities, he emphasizes the importance of considering aspects of general international law when defining State responsibility.^{(17) Gerhard (2009), 112.} In other words, jurisdiction is allegedly an important element when ascertaining the duties of States and how this relates to e.g private entities. The author argues that there is no indication in the OST or its travaux préparatoires of wanting to deviate from general international law, where States, according to Gerhard, hold jurisdiction over any activity carried on by its nationals, thus entailing that non-governmental activities are attributable to the State. According to Gerhard, neither the first nor second sentence of Article VI suggest a departure from this, and the travaux préparatoires in fact suggests that the impact of State responsibility is answered by a referral to the general concept of jurisdiction.^{(18) Ibid., 113} I.e, if a private company operates under the jurisdiction of a State Party, that State Party will be responsible for the company's activities because it authorized or permitted those activities.^{(19) Ibid., 113-114. Gerhard also references to a U.S proposal for principle 5 in the UNGA Res. 1962 (XVIII) to support his view. The U.S proposal emphasized, inter alia, that a State’s permission to launch a space vehicle would entail the international responsibility, para 6 of document. Available online: https://www.unoosa.org/pdf/garecords/A_C1_881E.pdf, accessed 11.04.2024.} Furthermore, the author argues that the OST intended to allocate “all” activities of non-governmental entities to the States Parties, essentially making a deviation from the general premise of international law needless.^{(20) Ibid. p. 114.} If understood correctly, Gerhard thus argues that the State Party is effectively identified with the actions of the entity it is responsible for on the basis of jurisdictional authority over that entity.

Cheng argues that the OST Article VI first sentence and second sentence does not exhaust the scope of State responsibility in space.^{(21) Cheng (1995), 302.} He argues that both a narrow and a wide interpretation of the first sentence suggest that States are in fact directly responsible for national activities conducted by non-governmental entities.^{(22) Ibid.} This includes, according to Cheng, not only national non-governmental entities wherever they are, but also entities that are not national but which operate within a State’s territory and jurisdiction. This furthermore includes persons onboard a vessel of the State’s nationality, and subsequently also a space object, wherever it may be.^{(23) Ibid., 303. Cheng emphasizes that “[Since] Article VIII of the Space Treaty speaks of the State of registry ‘retaining’ its jurisdiction and control over such objects and their personnel, ‘while in outer space or on a celestial body’, it implies that such jurisdiction exists before such objects and their personnel enter outer space, and is not restricted to the period when they are in it. Consequently, its responsibility covers their activities wherever carried on.”} It thus seems that Gerhard and Cheng are of a similar view, namely that a State’s jurisdiction is a decisive element when attributing responsibility for the conduct of non-governmental entities.

3.3.3 Liability for damage caused in space

Liability for damage is described as a breach of an obligation if damage to another is caused.^{(24) Ibid., 300.} Liability for damage caused by space objects differs from the general responsibility of States for wrongful acts, because liability for damage in the space treaties concern lawful acts. In the context of space mining activities, this essentially means that States can be liable for damage on the basis of general international law, and on the basis of space law.

Liability for damage caused by space activities is regulated by the Liability Convention of 1972.^{(25) Convention on International Liability for Damage Caused by Space Objects, 961 UNTS 187, adopted in the General Assembly in 1971, entered into force September 1972.} This is contrary to the more comprehensible ‘strict’ liability regime pertaining to damage caused in the atmosphere and on the surface of earth, which does not take fault into consideration.^{(26) Ibid. Article II.} This difference in liability regimes as the arena changes from earth to outer space is a major game changer because damage disputes on the basis of fault requires proof of a causal link between intentional or negligent behavior and the damage. A fault-based incident is therefore, presumably, far harder to settle than one on the basis of absolute liability. The overlap with responsibility for wrongful acts is notable, because negligence of conduct is a prerequisite for inducing a responsibility to e.g compensate for damage. Such a breach of diligent conduct is therefore implied in a fault-based regime as well. The primary issue, however, is that what constitutes fault in space is not defined in the legal framework or by any authoritative legal source. Fault liability in space is therefore one of the more obscure concepts in space law, as even supplementary legal sources on its function are scarce.

Damage in space as a result of human activity is likely to occur. The extreme environment of space logically makes any space activity prone to serious damage risk. This is one of the reasons the corpus juris spatialis contains explicit regulation on liability allocation.^{(27) Armel Kerrest and Lesley. J. Smith, "Article VII". In Cologne Commentary on Space Law, Vol. 1, ed. Hobe, Stephan, Schmidt-Tedd, Bernhard and Kai-Uwe Schrogl (Köln: Carl Heymanns Verlag, 2009), 129.} The OST Article VII establishes liability upon a State for damages to anything or anyone on the Earth, in the air and in outer space, including the moon and other celestial bodies:

“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.” ^{(28) (n. 21), supra.}

The Liability Convention (“LC”) elaborates on the content of this regime. In the LC Article II, a launching State shall be “absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight”. A ‘launching State’ is defined as i) “A State which launches or procures the launching of a space object, and ii) “A State from whose territory or facility a space object is launched”.^{(29) Article I (c).} A ‘space object’ includes component parts, the launch vehicle, and its parts thereof.^{(30) Article I (d).} Additionally, the ordinary meaning of space object in this sense likely entails any object and parts of it made to operate in space that is not natural [anymore] by human design. This includes non-functioning space objects and small pieces of debris.^{(31) Kerrest and Smith (2009) define it as “any object which humans launch, attempt to launch or have launched into outer space, including the Moon and other celestial bodies”, and the authors also include space debris and other smaller remnants of space objects, see p. 140 (n. 438).}

When it comes to damage caused in space, the LC Article III establishes a different liability concept in which fault is a prerequisite cause of damage:

“In the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.” ^{(32) The Liability Convention (n. 438), Article III.}

The provision deviates from both the strict liability regime in the LC Article II, and the more general rule of the OST Article VII, which merely articulates that a State Party – effectively a launching State^{(33) Per the OST Article VII, liability for damage is attributed to State Parties that launches, procures the launch, from whose territory the launch happens, and from whose facility the launch happens. The same premise is established in the LC Article I c, defined a ‘launching State’.} – is liable for damage on Earth, in the air and in outer space. It does not provide for how, or in what situations, liability shall be attributed. Article III of the LC thus limits the liability of the launching State for damages caused in space, making it liable for damages only when such damages are caused by the States own fault or the fault of the entities for whom it is responsible. Furthermore, as the wording states, the damage concerned is that which is inflicted upon a space object or to ‘persons or property on board’. Property in this case can logically be interpreted as whatever does not constitute a ‘space object’, as the two are separated in the wording. The meaning of ‘on board’ is unclear. Does this mean that Article III excludes e.g persons conducting extravehicular activity (EVA), i.e astronauts outside the space object they pertain to? Some argue that this is the case, seemingly based on the verbatim wording of the provision.^{(34) Lotta Viikari argues that under the conditions of Article III, persons or property must be inside (“on board”) the space object in order to recover damages, see the author’s comments on the Liability Convention in the section on “Environmental aspects of space activities” in Handbook of Space Law, ed. Frans von der Dunk, Fabio Tronchetti (Northampton: Edward Elgar, 2015), 732.} If so, the damage to property or personnel outside the space object would have to seek recovery on other grounds, possibly by recourse to the OST Article VII or even Article VI.^{(35) F. von der Dunk (2015) 51-52. The author argues that many ‘oversee’ the possibility of the OST Article VI as grounds for liability claims.} A mining operation would in theory suffer the same legal fate in terms of personnel conducting EVA and property which does not constitute a space object.

The liability of the launching State hinges on whether fault is the cause of damage. What constitutes fault, however, is not defined in the space treaties. In ordinary terms, ‘fault’ implies a negligent conduct leading to a particular negative outcome in which responsibility is attributed for that outcome.^{(36) See also the dictionary’s definition[s] of the term, e.g “deserving blame for something bad: responsible”, https://www.britannica.com/dictionary/fault, last accessed April 14th 2024.} When addressing the legal meaning of fault-based liability in space, factors such as intentional acts, omission of acts and gross-negligence are therefore of importance when determining fault.^{(37) Heather H. Dinniss, “Cyber operations in outer space”. In Outer Space Law: Legal Policy and Practice, 2nd ed. Edited by Yanal Abul Failat and Anél Ferreira-Snyman (Surrey, UK: Globe Law and Business Ltd., 2022), 472.}

Moreover, the LC's connection to general international law is evident in various sections. For instance, the LC Article VI specifies that exoneration from absolute liability is not applicable if damages arise from activities that violate international law, specifically mentioning the UN Charter and the Outer Space Treaty.^{(38) The LC, Article VI, second paragraph.} Additionally, the preamble of the LC highlights the objective of “[Recognizing] elaborate effective international rules and procedures concerning liability for damage caused by space objects […]”.^{(39) Ibid., in the Annex of the LC.} These clauses underscore the necessity of adhering to and further refining international law. This could involve contemplating how fault is viewed in other areas governed by international law. Yet, as repeatedly said, applying analogous concepts must be done with caution. There is a factual difference between, for example, hazardous terrestrial mining activities on the seabed and ultra-hazardous activities of resource mining. Consequently, there would thus exist a legal difference as to what qualifies as negligent conduct, logically because the activities – even though somewhat related – are unlike. To further this discussion, general international law should be examined for clarification of the meaning of ‘fault’.

3.3.4 Fault liability in general international law

State liability for damage caused to another State has previously been subject to the rulings of the International Court of Justice.^{(40) Lyall and Larsen (2018), 95. The authors refer to the Corfu Channel Case (UK v. Albania) of 1949 and the Chorzow Factory Case (Germany v. Poland) of 1929.} Thus, even though not supported by authoritative sources like treaties, State liability for damage certainly exists in the sphere of international law. This includes an obligation to make reparations when a State is liable for said damages as well.^{(41) Ibid.} Especially of interest in our case is State liability for lawful acts. The concept is perceivably different than State responsibility for wrongful acts.^{(42) State responsibility – a ‘secondary rule’ – as discussed in section 3.2, supra.} Nevertheless, an alleged overlap exists between the two concepts: State conduct may result in a lawful act causing damage, which, in turn, may have stemmed from the State's own wrongful acts or omissions.^{(43) Joel. A. Dennerley, “State Liability for Space Object Collisions: The Proper Interpretation of ‘Fault’ for the Purposes of International Space Law” in The European Journal of International Law Vol. 29 no. 1, 2018, p. 292.} However, the concept of State liability for lawful acts in general international law is not very substantiated by legal sources and it is therefore unclear to what extent it can be applied. Ironically, the only example of a binding international legal instrument unanimously agreed upon to establish liability for lawful acts is the Liability Convention.^{(44) Crawford (2019), 544.}

The ILC has addressed State liability, including the relation to State responsibility, in its Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities.^{(45) Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities with commentaries, 2006, in Report of the ILC, fifthy-eight session. GA Official Records, supplement No. 10 (A/61/10) 2006. Available online: https://legal.un.org/ilc/texts/instruments/english/commentaries/9_10_2006.pdf. Last accessed May 22, 2024.} Commentators perceive the work of the ILC to be a gradually more authoritative source of law.^{(46) Lyall and Larsen (2018), 95.} Principle 4 of the draft, paragraph 1 and 2, contains suggested rules on compensation and liability. Paragraph 1 suggests an obligation upon States to enact measures to “ensure that prompt and adequate compensation is available for victims of transboundary damage caused by hazardous activities located within its territory or otherwise under its jurisdiction and control”. Paragraph 2 elaborates that these measures should include the “imposition of liability on the operator or, where appropriate, other person or entity”. The ILC draft principles thus acknowledges the attribution of liability as a necessary measure pertaining to hazardous activities. The relationship between State responsibility and liability for damages marks its presence: In the draft principles, the State is responsible for imposing liability for damage upon the appropriate entity, ultimately to ensure prompt and adequate compensation. Furthermore, paragraph 2 states that “such liability should not require proof of fault”.^{(47) (n. 456), p. 76.} This last statement is interesting, as it indeed suggests that fault liability as an international legal concept is undesirable when relating to hazardous activities. This is evidenced in the commentary to the draft principles. The reason for the explicit statement of fault liability not being used, arguably lies in the nature of hazardous and ultra-hazardous activities.^{(48) Ibid. p 78.} Such activities involve complex and potentially harmful operations. Consequently, it would arguably be unjust to impose a burden of proof of fault in an industry proof is difficult to assess due to both complex technological operations [which in some cases are guarded as a secret].^{(49) Ibid. See paragraph (13) of the commentary on Principle 4 on Prompt and adequate compensation.} The scarcity of clarifying sources in this matter of determining the meaning of ‘fault’ is – at this point – not mitigated by the work of the ILC. The draft principles, or the commentaries, only argue why fault-based liability should not be a part of the liability regime in general international law.

Crawford examines the topic of liability for lawful acts and underscores the prevalence of the obligation of due diligence in several examples he provides. Referring to both an arbitration case as well as the works of the ILC, the author highlights that a recurring duty is a reasonable exercise of care, ensuring the rights of others and preventing harm.^{(50) Crawford refers to the Trail Smelter case where Canada had conducted lawful activities on their own territory that ultimately caused cross-border air pollution in the U.S. The tribunal held Canada responsible for damage on the basis of the magnitude of consequences and the clear evidence linking injuries to Canadian activity. See Crawford (2019), 544.} The duty of due diligence may therefore, ultimately, be the most impactful concept for clarification on what fault-based liability in space entails. However, due diligence is an indefinite concept in international law that traditionally evolves around holding a State accountable for the actions of private actors that it can't directly control.^{(51) Timo Koivurova and Krittika Singh, «Due Diligence” in Max Planck Encyclopedias of International Law (last updated 2022), provided online by Oxford Public International Law: https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e1034?prd=MPIL.} The idea is that while a state doesn't have to prevent all harmful private actions, it must take reasonable steps to try to prevent them. This is, as previously examined, considered an obligation of conduct.^{(52) Ibid.}

An indication of an underlying due diligence standard can be seen in the work of the International Court of Justice (ICJ). The most noted example is the Corfu Channel case. The judgment revolved around a dispute between the United Kingdom and Albania, where the Court found Albania liable for not warning about mines in its waters, which damaged British warships.^{(53)Corfu Channel case, Judgment of April 9th, 1949: I.C.J Reports 1949, p. 4. General List No. I. Available online: https://www.icj-cij.org/sites/default/files/case-related/1/001-19490409-JUD-01-00-EN.pdf.} The Court used the concept of due diligence – although not using the term in verbatim – to underscore Albania’s obligation not to allow its territory to be used for acts contrary to the rights of other States.^{(54) Alice Ollino. Section 1.3.2: “Due Diligence as a General Principle of Law?” In Due Diligence Obligations in International Law. Cambridge: Cambridge University Press, 2022.} Furthermore, the statements of the ICJ has served as a precedent in later cases, where due diligence was associated with the obligation to prevent harm (“no-harm rule”), shaping the principle as part of customary international law, especially in the environmental and human rights fields.^{(55) Ibid.} Yet, ‘due diligence’ as a concept still lacks sufficient definition in practice. Crawford argues that this standard will differ with what context it is applied in.^{(56) Crawford (2019), 536.} This is also the view of Ollino, adding to the discussion that due diligence is attached to ‘primary rules’, i.e the concrete rules of international obligations.^{(57) Ollino (2022), section 1.3.2.}

If the obligation of due diligence is an important element when clarifying what fault-based liability in space implies, another question emerges. What standard of ‘reasonable exercise of care or conduct’ apply to space activities? One commentator highlights the concepts of ‘constructive knowledge’ and ‘actual awareness’ when discussing fault standards. Constructive knowledge, allegedly established in the Corfu Channel Case, implies that a State should have known about the acts going on inside its own jurisdiction leading to interference with the rights of other States.^{(58) Dennerley (n. 454), 295-296.} A key point is that the State should have had knowledge about activities under its jurisdiction and control leading to contrary acts of States. In this regard, Von der Dunk notes that as space objects are under close control and observation when active, the operator – in cases of e.g orbital deviation or irregular activity – could often be rightfully held liable on the basis of fault.^{(59) Ibid., 296. The author references to Frans von der Dunk’s discussion on the satellite collision of 2009: ‘Too-Close Encounters of the Third Party Kind: Will the Liability Convention Stand the Test of the Cosmos 2251-Iridium 33 Collision?”, see reference in note 474 under.} The other standard, actual awareness, establishes fault based on what the State actually knew when the incident occurred. Fault would exist only if it is proved that the State had knowledge of circumstances that led to damage and chose to not act or acted negligible.^{(60) Ibid. p. 298.} ‘Actual awareness’ is argued as a more reasonable standard if taking into consideration the potential and volatile dangers of space, such as space debris, which is very hard to predict and where even the tiniest material can cause harmful situations.^{(61) Ibid.}

The discussion above underscore two key aspects. Firstly, the fault standard seems to be linked to the obligation of due diligence of States. If a State has caused damage because of poor judgment or management, this may invoke responsibility upon that State.^{(62) Crawford (2019), 544.} This means that liability for damage caused in space depends on the conduct of the State. Is there reason to argue that the operator had, or should have had, knowledge prior to the incident? Or were the circumstances of such a nature that any expectation of preventable measures would be unreasonable?

The absence of a definition on ‘fault’ in the laws pertaining to space activities is indeed an issue. There are no clear and legally binding standards which helps delineate the meaning of ‘fault’ in the LC.^{(63) Frans von der Dunk, "Too-Close Encounters of the Third Party Kind: Will the Liability Convention Stand the Test of the Cosmos 2251-Iridium 33 Collision?" (2010). Space, Cyber, and Telecommunications Law Program Faculty Publications. 28., p. 206. Published in the Proceedings of the International Institute of Space Law (2009), 199-209.} A future damage-causing incident caused by e.g operators extracting resources on the Moon may thus involve tough challenges if attempting to settle disputes on the basis of the LC Article III. Nonetheless, the recent discussion seems reveal some important contours that may be applied if [or when] this scenario is realized.