Reframe: A New Interpretive Framework for Non-Governmental Entity Responsibility in Outer Space

Authors

Steven E. Bartz, Shareholder, Greenburg Traurig, LLPFollow

ORCID (Links to author’s additional scholarship at ORCID.org)

https://orcid.org/0009-0006-4493-8828

Abstract

The mainstream interpretation of State responsibility for Non-Governmental Entities (NGEs) with respect to their commercial operations in outer space may hinder the further development of the commercial space industry. Specifically, that interpretation produces broad responsibility for nation-states (States) under international law and derivative consequences for States and NGEs, but the international space community might avoid the otherwise harsh practical consequences that are likely to hamper the continued growth of commercial activities by NGEs in outer space by reexamining and reinterpreting a few aspects of existing law. This article (1) examines mainstream interpretations of State responsibility for NGEs with respect to their commercial operations in outer space; (2) embraces Curtis Schmeichel’s work and his rejection of “national activities” as an all-encompassing concept that renders States responsible for nearly all of their NGEs’ activities and extends his contextual analysis to the remainder of Article VI of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty or OST); and (3) proposes a reinterpretation of present international space law concerning State responsibility by arguing that the “authorization and continuing supervision” requirement with respect to NGEs, as set forth in the second sentence of OST Article VI, is independent of carrying out activities “in conformity with the provisions set forth in the [OST].” Pursuant to that reinterpretation, each State that is a party to the OST and the 1972 Liability Convention on International Liability for Damage Caused by Space Objects (Liability Convention), recognizing its liberation from the need to ensure its NGEs’ conformity with the OST but respecting the remaining potential international liability for outer space activities by its NGEs (which might flow therefrom pursuant to Article VII of the OST and Article III of the Liability Convention, respectively), might endeavor to minimize the likelihood that such activities result in injurious consequences by regulating such activity. Accordingly, a State’s recognition of its ex post international liability for its NGEs’ injurious conduct in outer space may result in its ex ante adoption of authorization regimes and supervisory regulations specifically designed to limit that liability without the burden of, or need to, ensure such NGEs’ adherence to the provisions of the OST when they are not engaged in national activities. As private sector activities in outer space expand, such an approach to the OST’s Article VI should reduce the regulatory load States must shoulder to comply with their duties to authorize and continually supervise NGEs’ non-national activities in outer space while correspondingly increasing the discretion such States may exercise in fulfilling those duties.

In summation, this article proposes a drastic narrowing of States’ responsibility for NGEs’ activities in outer space, which should enable States to reduce their supervisory burden or otherwise tailor their supervisory role for the non-national activities of their NGEs’ in outer space in a manner consistent with such States’ own respective interests and agendas free of the need to ensure those NGEs’ “compliance” with the OST. States’ liability for NGEs’ actions in outer space, however, would not be altered by the reinterpretation of the OST proposed in this Article. But a State’s liability for its NGEs’ activities in outer space is based on comparative fault. States who have laws and regulations governing NGEs’ activities in outer space could argue that they should shoulder less comparative fault than States who lack such laws and regulations; this, coupled with the “stickiness” of liability under international space law (i.e., a launching state retains liability for its space objects indefinitely), should mitigate “race to the bottom” fears for States vis-a-vis their NGEs’ activities in outer space.

Recommended Citation

Steven E. Bartz, Reframe: A New Interpretive Framework for Non-Governmental Entity Responsibility in Outer Space, 90 J. Air L. & Com. 135 (2025)