As part of the privatization of space activities, the private operators who benefit from and control space activities are unduly separated from responsibility for their actions. Despite the forward-looking nature of the space treaty regime developed in the 1960s and 1970s, the inclusion of exclusive state responsibility necessarily reflected the historical context in which the Liability Convention was drawn up. Notably, the notion of a launch country does not require a minimum level of control or ownership of a space facility by a country.
Thus, in accordance with art VII of the Outer Space Treaty, any category of launching state will be liable for damage caused by their space object, even if it is exclusively owned and operated by a private entity. Consequently, art VI of the Outer Space Treaty does not exclude the actions of private entities in space, but does place the burden of accountability for the actions of such actors directly on the state. This section compares the risk-averse approach of New Zealand's Outer Space and High-attitude Activities Act 2017 with the risk-absorbing approach of the Australian Space (Launches and Returns) Act 2018.
84 Agreement between the Government of New Zealand and the Government of the United States of America on Technology Safeguards Related to United States Participation in Space Launches from New Zealand [2016] NZTS 14 (signed 16 June 2016, entered into force 12 December 2016 entered into force). These requirements are directly linked to the state's ability to recover loss and damage and to shift their own liability under the Liability Convention onto operators. 95 See Agreement between the Government of New Zealand and the Government of the United States of America on Technology Safeguards Related to United States Participation in Space Launches from New Zealand, above n 84.
The rules for 2019 elaborate on the requirements in the waste plan mentioned under section 34(2) of the act. This leaves several aspects of the responsibility regime fundamentally out of step with a commercialized field – with states such as Australia and New Zealand having to determine their own national approaches to exclusive state responsibility under international law. Launch States as defined under Art I(c) of the Liability Convention will be responsible for private operators without any necessary element of control.118F119 But where private operators.
133 Report of the Commission to the General Assembly on the work of its fifty-eighth session: Text of the draft principles on the allocation of loss in the event of transboundary damage arising from hazardous activities, with comments [2006] vol. 2, point 2 YILC 59 [Draft Principles]. Shifting the burden of the loss to New Zealand appears to be a far cry from the original aims of the liability convention - negotiated during the United States-Soviet space race - when the country of New Zealand has no practical role in the launch. . 190 Agreement between the Government of New Zealand and the Government of the United States of America on Technological Safeguards Related to United States Participation in Space Launches from New Zealand, above n 84.
Differences in territories such as population density,198F199 and the state's goals in terms of space. 198 Declaration on the Fiftieth Anniversary of the Treaty on Principles for the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies GA Res. In the "New Space" era, where private operators are in many cases taking on activities once exclusively carried out by states, the liability convention's exclusive state responsibility creates an unnecessary distance between operators and losses.
Space law has always shown a tendency for cooperation that goes beyond the disagreements between states on Earth: a typical example of this is the Outer Space Treaty negotiations in the middle of the Cold War.
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