Applicability of the Liability Convention for Private Spaceflight

While the era of private spaceflight is coming, it is getting urgent to have common understanding about the existing space legal systems, i.e., the Applicability of the Liability Convention (ALC) in handling with damage which might occur during space tourism. The applicability of the relevant articles about absolute liability, fault liability, and claimant State is systematically analyzed. The paper in turn analyzes the ALC in the situation of the participants suffering damage and in that of the participants causing damage, as a dichotomy methodology. The LC applies to a private spaceflight participant when they suffer damage on board during the spaceflight. As to the eligible claimant State, in the absence of the nationality State, the registry State, or the owner State of the space object may present the claim instead. If damage to the foreign participants on board happened on the surface of the earth, the nationality State of the participant could present claim to the launching State to protect its national’s interests under general international law rather than under LC. If the damage happens to the foreign participants on board happened elsewhere than on the surface of the earth, Article III of the LC could only apply in limited situations. Only when a spacecraft for private spaceflight of/or registered by one State is carried by the launching vehicle of another State, Article III applies. The best solution in such colaunching situation is to settle down the rights, obligations, and liabilities specifically in a binding international agreement between the launching States. The absolute liability should apply when a space object causes damage to a spaceship carried on by an aircraft before it separates from each other. After the separation, fault-based liability applies to the damage happening to spaceship. The registry State of a space object should be responsible for participants thereof who caused damage to the space object of a third-party State. The LC then applies when the damage is caused by the fault of the participant. If the spaceship is not registered, the launching State shall be responsible for the participants involved its “national activities,” no matter if the participant is its nationals or foreigners and the damage caused by them based on their fault, while the nationality State is not supposed to be responsible for its nationals in such case. At last, issuing a space visa to the participant of private spaceflight could be taken as a compliment measure for the State to implement its authorization obligation as to its national space activities, which could bring more legal certainties when defining the fault attribution.