In 2015, SpaceX CEO Elon Musk announced that his company would launch a large network of communication satellites with the goal of providing low-cost broadband internet service to consumers around the world. SpaceX’s Starlink network began launching in 2019 and will eventually consist of around 12,000 satellites across the globe. Additionally, other companies, such as OneWeb and Amazon, plan to launch large satellite constellations of their own. As of January 1, 2018, only 1,459 satellites orbited the Earth, meaning that the amount of satellites surrounding the globe will increase by over eight times in a few years.

On September 2, 2019, a European Space Agency satellite had to perform an evasive maneuver to avoid colliding with a Starlink satellite after SpaceX declined to reposition it. The risk of these satellites causing collisions raises the question: who is liable if a private company’s satellite damages the property of others or, worse, injures someone? The United Nation’s 1971 Convention on International Liability for Damage Caused by Space Objects states in Article II that “[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.” The treaty was drafted at a time when it was hard to imagine a private actor having the capability to launch objects into space, but this is now commonplace. As a result, the Space Liability Convention creates a regime in which a country is liable for the activity of private actors that launch into space from within its borders.

In light of this, some countries, including the UK and Belgium, require private space actors to purchase liability insurance so that the country is not left with the bill in the event of an accident. The Space Liability Convention requires that a launching State fully restore the injured party, regardless of cost. This creates an issue, as insurance companies cannot manage the risk of unlimited damages. Recognizing this, the United States caps the amount of insurance private space actors are required to purchase and has agreed to pay for damages above the amount covered by insurance. What happens, however, if Starlink satellites destroy OneWeb’s entire mega satellite constellation? Is the United States prepared to pay for that level of damages?

One proposed solution to the issue is to create a Commission under the Space Liability Convention that would be responsible for investigating accidents and assigning liability to the responsible party. Under this regime, if a launching State is found to have acted reasonably in its licensing of the private space actor, the Commission could assign liability directly to the private space actor. While this may be a fairer way of assigning liability, a Commission investigation would increase the amount of time between an accident and a claims payout. Additionally, under the current regime, assigning fault is as simple as determining who was the launch State. This proposal would replace the current, simple system for one that is potentially more complex and difficult to administer.

As more private actors launch into space and the potential for torts increases, it will be interesting to see if countries amend the Space Liability Convention in a move to hold private space actors accountable for their actions or whether countries will continue to indemnify private space actors to encourage the growth of commercial space activity.

Ramon J. Ryan

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