Chicago Journal of International Law

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The 21st century has borne witness to an explosion of human activity of all kinds in space; but the rules that govern that activity have failed to keep pace. The extant international liability regime for damage on Earth caused by space objects has a blind spot that the original framers could not have anticipated: an object launched into space by one nation may now come under the control of another nation—or even a private actor—through cyberwarfare. Moreover, the liability regime has another problem: if an incident involving an object in space results in harm on Earth, the Liability Convention does not demand an inquiry into—or consider—the underlying cause of the incident. If such an event were to come to pass, under the current regime of international law regarding space, the state that launched the space object would assume an obligation to pay for any harm on Earth caused by that object. The consequence of this order is a paradox; one in which a state’s responsibility to pay for damage is not linked to proximate causation or its own actions, but instead to mere ownership or assistance in launching the object. Thus, wholly innocent launching states will currently foot the bill for any damage caused by unknown culprits or third parties. This is in contravention of basic principles of state responsibility and is at odds with the result anticipated by the analogous customary law of the sea. As space becomes more crowded with potentially vulnerable space objects and future conflict in space becomes more likely, this misattribution of responsibility must be corrected in order to ensure that the Liability Convention’s stated goal of creating “effective international rules and procedures concerning liability” actually strengthens international cooperation instead of undermining it.

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