Preview: The Trouble with Westphalia in Outer Space

Volume 40, Issue 4 of the Denver Journal of International Law and Policy is off to the printers. Here is a preview of one of the articles, The Trouble with Westphalia in Space: The State-Centric Liability Regime, by Dan St. John.

What happens when a satellite owned by a private company in one state crashes into a bit of detritus that fell off another state’s rocket?  International space law has a regime for addressing this dilemma; however, the solutions reflect the era they came from.  A better system is needed to address the emerging commercial space sector.

In the 1960s, the international community convened to build a framework governing state activities in outer space.  Given Cold War fears, these treaties were imbued with principles of cooperation and mutual assistance.  The space liability regime, therefore, is built around diplomatic, cooperative dispute resolution between states.  I explain the treaty system and how a state must bring a claim, from identifying the responsible party to forming a Claims Commission.  The space liability regime, however, meant to supplement other international mechanisms for assigning liability.  If the treaty process is ineffective, state responsibility and international liability are principles to fill the gaps left by the space treaties.

Despite the time and effort put into building this structure, the treaty framework has formally been used only once.  And today, with space becoming increasingly crowded and private companies launching more into space, a state-centric liability regime is not the most effective way to handle problems.  It is unlikely that a new treaty will be negotiated soon, so I propose the private sector use alternate mechanisms to preempt the treaties, such as a robust contractual allocation of risk.

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University of Denver Sturm College of Law