OFFICE OF THE SECRETARY 

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DEPARTMENT OF THE AIR FORCE 

WASHINGTON 

MEMORANDUM FOR AFXPPGA 

SUBJECT: Comments on Draft Position Paper 

111111111111111111111111111 14 

1111111\1111111111 

May 22, 1969 

This memorandum responds to your request of May 21 for our 

review and comments on a draft position paper, "Liability Convention, 11 

for use at the eighth session of the Legal Subcommittee. 

We have reviewed the subject position paper and have no comments. 

We concur in the use of the paper as written. 

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POSITION PAPER (Second Draft) 

U.N. COMMITTEE ON THE PEACEFUL 

USES OF OUTER SPACE 

CONr'IfJEHTibL 

EIGHTH SESSION 

GENEVA 

1/C/O 

LEGAL SUBCOMMITTEE June 9 - July 4, 19G9 

Damage Caused by 9_bj ects Launched fntp Ot1_ter Space. 

Preliminary indications are that the Subcommittee will begin formal consideration of this item at the beginning of 

the session's second week although, in that event, informal 

consultations would undoubtedly take place during the first 

week. Several important issues are still unresolved, including applicable law on measure of damages, treatment of 

international organizations, and perhaps most difficult, the 

procedure for settlemeht of disputes. For the first time, 

the United States will be prepared at this session to consider giving up its past strong preference for a limitation 

------

on liability in exchange for satisfactory resolution of the 

other points at issue if such a compro~ise will enable' the 

Subcommittee to agree on a generally satisfactory text . 

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BACKGROUND 

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The United States made the original proposal in the 

United Nations for a liability convention and has continued 

to press for its completion. At the Subcommittee's Sixth. 

Session in 1967, we proposed the draft of a complete convention (A/AC.105/C.2/L.19). We have not stuck rigidly to 

our own text, howevei, and have been willing to consider 

reasonable alternatives. 

The General Assembly adopted resolutions at both its 

22nd and 23rd sessions requesting conclusion of the liability 

convention on an urgent basis. Several countries have made 

it clear that conclusion of a satisfactory liability convention will '

1

facilitate 11 their adherence to the .Astronaut 

Rescue Agreement. 

The Report of the Subcommittee's 1968 session 

(A/AC.105/45) indicates provisional agreement has been reached 

on a number ~f provisions including (a) definitions of 

"damage" and 11 launching state", (b) a b'asic rule of absolute 

liability with certain exceptions, (c) joint and several 

liability for a joint launch, (d) exoneration from liability 

in certain cases, (e) presentation of claims including timelimits, and (f) pursuit of other remedies. 

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Since ,the Subcommittee's-1968 session, the Group of 

Five (Belgium, Hungary, India, USSR, USA) has held two series 

of informal meetings -- first in New York last fall and again 

in New Delhi this spring. On March 22, 1969, India issued 

a press release (Annex I) summarizing positions of the 

respective delegations on the most important unresolved 

issues. In early April the U.S .. and Belgium briefed other 

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friendly members of the Outer Space Cornmi ttee;', in New York 

on the New· Delhi talks. Some progress ,-~,;as made during (e.g. Soviet accord on including nuclear damagey· 

these talks/and agreement on a c~mplete text might be 

possible at this session of the Subcommittee. 

UNITED STATES POSITIONS 

1. General. The United States strongly desires to 

reach agreement at this session of the Subcommittee on a 

·complete liability convention consistent with the positions 

set forth in this position paper,·.=___ The 

Delegation should use the first week of the session to consult other Subcommittee members and, as appropriate, to 

advise them of our positions as outlined below. In particular, 

the Delegation should find an early private opportunity to 

inform Belgium and India of its instructions on limitation of 

liability and then meet with the Friendly Fifteen. 

-- It is possible that the Soviet Delegation will suggest 

the desirability of private Soviet-US bilateral consultations . 

. In view of the now established pattern for Group of Five 

* The "Friendly Fifteen" includes Argentina, Australia, 

Austria, Belgium, Brazil, Canada, France, Iran, Italy, Japan, 

Lebanon, Mexico, Sweden, the UK and the USA. 

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CONr I Dan 16 J 

discussions, the U.S. Delegation should express its preference 

for continuing informal consultations in this forum. Should 

the Soviets press for private bilaterals, the Delegation 

should seek instructions. 

2. Limitation on Liability. The Delegation may inform 

other Subcommittee members that: (1) The United States still 

prefers a limitation as in the past; (2) The Delegation has 

no authority to agree to a complete draft convention without 

a limitation; (3) The Delegation, howevei, would be prepared 

to seek new instructions if it becomes convinced that a U.S 

c~ncession on this point would make possible the conclusion 

of a generally satisfactory complete draft convention; (l~) 

The Delegation should make clear that it believes that, as a 

minimum, such a text would have to include (a) a provision 

on international organizations satisfactory to members of 

-'-----

E SRO and ELDO, (b) a satisfactory provision on the law 

. applicable to measure of damages, and (c) an adequate 

provision on settlement of disputes. 

Discussion - In the past the United States has strongly 

desired a limitation on the amount of liability per incident. 

At the 1968 session ·we ndvised other Subcommittee members 

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that we would consider an appropriate limitation to be any 

figure between $100 and $500-million. 

1968 Position Paper - Annex II.) 

(See pages 8-11 of 

Our position on limitation has attracted virtually no 

support among other Subcommittee members. Belgium and 

Canada have stated publicly that they could accept a "high" 

limit (presumably at the $500 million figure) and Australia 

France has opposed a limit; the UK has been silent. 

has taken a similar position i~ private./ In the Group of 

Five talks last December Piradov (USSR) suggested a limit 

of $100 million for nuclear damage on condition that no 

limitation would apply to other types of damage. At the same 

·meeting Krishna Rao made clear that India continued to oppose 

any limitation whatsoever. On his own initiative, however, 

he suggested that if India were to consider a limit it would 

probably have to be at least $500 million for nuclear damage 

and $1 billion for 0th.er types of damage. At the New Delhi 

Group of Five talks in March a Soviet delegate priv~tely 

said that the maximum limit the USSR could accept would be 

$100 million for nuclear and non-nuclear damage. In ~ublic, 

however, both the Soviet and Indian delegations again firmly 

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opposed any limit whatsoever. 

Our past desire for a limit on liability has been based 

on a feeling that the Senate would be reluctant to approve 

a treaty without a limitation and on the fact that virtually 

all other liability treaties have limitation provisions. 

Article VII of the Outer Space Treaty, on the other hand, 

does impose liability on launching states without a limitation, 

but this treaty deals with a broad range of space questions 

and is not strictly a liability agreement. 

Early this year, the Department of State consulted 

Senators Symington and Gore and members of the staffs of 

Senators Anderson and Smith and of the Senate Committees on 

Astronautics and Space Sciences and on Armed Services. On 

the basis of these consultations we have concluded that the 

absence of a limitation would probably not be an obstacle to 

''-... 

Senate approval assuming a good case can be made that, on 

balance, it would be in our national interest to become a 

party to the convention as finally dratted. 

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3. A_pplicable Law on Measure of Damages 

(1) The Delegation.should continue to support a 

provision whereby the compensati9n which a state shall be 

liable to·pay for damages will be determined "in accordance 

with applicable principles of international law." 

(2) The Delegation may also support proposals 

(a) to add the phrase "taking into account the law of the 

presenting state~(or of the place where the damage occurred) 

and(b) to give the paities to a claim the option of agreeing 

on some other standard as to measure of d2mages. 

(3) The Delegation should oppose any formula based 

on the earlier Hungarian-Soviet proposal that measure of 

damages should be governed by the law of the launching state. 

(4) The Delegation should also oppose the reference 

to the law of the respondent state in the New Delhi proposal 

..._____ 

of India. (Annex I, p. 2) 

Discussion In Article IV of our ~967 draft we 

proposed: 

"The compensation which a state shall be 

liable to pay for damage under this Convention shall be determined in accordance 

with applicable provisions of international 

law, justice and equity." 

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Last 'year our delegation was authorized to drop "justice 

and equity~ in the interest of clarity and simplicity. 

(See Annex II, pages 12-14.) Based on last year's position 

paper we proposei to the Group of Five in New York: 

11The compensation which a Respondent State 

shall be liable to pay for damage under 

this Convention shall be determined in 

accordance with international law, taking 

into account the law of the Presenting State, 

The Respondent and Presenting States shall, 

however, be free to agree on applying some 

other standard." 

This proposal is very close to the formulation in Article VI 

of India's draft convention (A/AC.105/C.2/L.32/Rev 1, see 

1968 Subcomrrrittee Report, page 2li-). Last fall the Soviets 

rejected this proposal, but said they could accept a simple 

reference to international law without mentioning the law 

of the presenting State. 

The Belgians and Indians continue to insist on some 

r~ference to.the law of the presenting state (or of the 

state where damage occurred) on the ground that international 

law alone is vague and thus favors the respondent state. 

The New Delhi proposal _of India, designed as an a 11 embracing 

compromise, was accepted by the USSR and Hungary but not by 

Belgium or the United States. 

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l~. ExculPE._tion of Passive Territorial State 

,(1) The Delegation .should oppose the French 

proposal that a party to a joint launching, the full extent 

of whose cooperation is limited to a passive furnishing of 

its territory or facilities, should not be liable under the 

convention so long as the active participant is identified 

and is a party to the convention. 

the 

(2) If/French, Belgians or others press for some 

provi~i6n on this point and advance sound reasons for this 

the 

deviation from/Outer Space Treaty, the Delegation may propose 

the following text: 

"If two or more states or international organizations actively and substantially participate in a 

cooperative space project, they shall be jointly 

and severally liable. However, a state whose sole 

contribution to such project is to make its territory 

available for launching shall not be considered an 

active and substantial participant for the purposes 

of this Article and shall not be liable under thii 

convention if one or more active and substantial 

participants is identified and is a party to this 

convention. The parties to this conv.ention 

participating in a space project shall be free to 

agree among themselves on sharing 'liability for any 

damage that may be caused by such project." 

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Discussion - Article VII of the Outer Space Treaty 

provides: 

"Each State Party to the Treaty that launches 

or procures the launching of an object into outer 

space, including the moon and other celestial 

bodies, and each State Party from whose territory 

or facility an object is launched, is internationally 

liable for damage to another State Party to the 

Treaty or to its natural or juridical persons by 

such object or its component parts on the Earth, 

in air space or in outer space, including the 

moon and other celestial bodies." 

We see no reason for changing this rule to exculpate a 

passive territorial state whose interests could be protected 

against the active state by means of a bilateral "hold 

harmless" agreement. 

If the exculpation provision is pressed by the French, 

Belgians or other members, the Delegation should probe as to 

the practical reasons why a bilateral "hold harmless" agreement would not adequately protect the passive territorial ---.... --

state. The Delegation should propose the above text only if 

satisfied that real problems make a new rule desirable. 

5. Settlement of Disputes 

(1) The Delegation should continue to press for a 

procedure for settling disputes under the Convention by some 

form of compulsory third-p0rty arbitration. The proposal made 

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by India at the New Delhi Group of Five Talks is acceptable (Annex I, page 3) except for a provision calling for 

the Chief Justices of the parties to select the Commission 

Chairman in the event the parties cannot agree. It would 

not be appropriate for the Executive Branch to agree to such 

a role for the Chief Justice of the United States 

(2) The Delegation should keep the Department of 

State informed of developments so that timely consideration 

can be given to falling back to a compuliory mediation 

procedure with public but non-binding recommendations for 

settlement of disputes if (a) it appears that the Soviets 

will not accept binding third-party settlement, (b) other 

friendly delegations are willing to yield on this point, and 

(c) such a concession will enable the Subcom,~ittee to agree 

on an otherwise satisfactory convention. 

"----

Discussion - This issue will be among the most difficult 

to resolve. The USSR has steadfastly opposed any settlement 

procedure not expressly accepted by both parties to a dispute. 

The U.S. position has been that some form of compulsory thirdparty settlement would be essential if the liability convention 

is to represent progress beyond Article VII of the Outer Space 

Treaty. We were prepared in 1968, however, not to insist on 

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compulsory third-party settlement if other friendly delegations did not believe it worth fighting for and if they 

pressed us to concede. But most of our friends have been 

firm on this point (Belgium has indicated some flexibility), 

and our willingness to concede on limitation should encourage 

India and others to seek some give in the Soviet position. 

The final U.S. position on this point, as well as that 

of the Soviets and others, will _probably be determined to 

some extent by the outcome of the Vienna 'Conference on the 

Law of Treaties where third-party settlement of disputes 

is also a central issue. (On May 16 a compulsory thirdparty settlement procedure failed by about ten votes to 

rece{ve the necessary two-thirds majority. Efforts are now 

underway to produce a compromise settlement procedure before 

the Conference ends on May 23.) 

6. International Organizations 

The Delegation should consult ESRO/ELDO members 'in 

Geneva and be guided by their attitudes' toward current proposals. 

Discussion - Our primary purpose has been to support any 

reasonable proposal acceptable to ESRO and ELDO whose membership 

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is represented, on the Legal Subcommittee by Belgium, France, 

Italy and the U.K. Australia· is a member of ELDO but not ESRO. 

At the 1968 session we were (and still are) willing to follow 

the precedent of Article 6 of the Astronaut Rescue Agreement, 

but the Soviets and Hungarians have insisted on modification 

of that formulation. 

During the Group of Five talks last fall the Soviet 

Delegation accepted the proposal made by India at the 1968 

session of the Subcommittee. (19 68 Subcornmi ttee Report, 

page 26.) In New Delhi the USSR backtracked, however, on the 

ground that an international organization should be bound by 

the liability convention if a majority of its members are 

parties without regard to whether or not the organization 

itself had accepted the convention. India then suggested a 

new formulation incorporating this idea (Annex I, page 2) which 

.'--...... 

all delegations accepted ad referendum. T11e Belgian and U.S. 

delegations, however, made clear that their approval was also 

subject to general acceptance by ESRO/ELDO members. Vranken 

(Belgium) was to discuss this proposal with other ESRO/ELDO 

members in May. 

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' 

7. Other Positions 

On questions not specifically dealt with above 

the Delegation should be guided by the 1968 Position Paper 

(Annex II) to the extent not inconsistent with this paper, 

particularly with respect to the following issues: 

(1) Definition of Space Object (Annex II - pages 

4- 7); 

(2) Apportionment of the Amount Available (Annex II, 

pages 11 and 12); 

(3) Damage Done in Launching State Territory 

(Annex II, pages 15-16); 

(4) Damage Done in Outer Space and Certain Other 

Areas (Annex II, pages 16-18); 

(5) Electronic and Radiation Interference (Annex II, 

pages 22-23); 

(6) Juridi~~l Persons (Annex II, pages 23-24); and 

(7) Review Conference (Annex II, page 26). 

8. Final Clauses 

As in the past, the Delegation should state that it 

has no authority to dis~uss final clauses until agreement is 

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reached on all substantive provisions. It will be extremely 

difficult to resist an "All States" accession clause in view 

of the precedents in the Outer Space Treaty and the Assistance 

and Return Agreement. The Department will undertake timely 

consultations with the FRG Embassy if progress on unn!solved 

issues makes agreement on a complete text appear likely. 

L:L/UNA:S1'-'IBoyd:dws 5/19/69 

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PRESS ST1\TEHENT RELEASED BY THE 

GOVERI\T},1ENT OF INDIA 22 Hi\RCH 1969 

1. The Legal Sub-Committee of the U.N. Committee on 

Peaceful Uses of Outer Space has b~en considering for some 

time the subject of liability for damage caused by objects 

launched into outer space. Draft conventions in this regard 

had been tabled by Belgium, Hungary and the United States. 

At the seventh session of the Legal Sub-Committee in June, 

1968, India and Italy also presented draft conventions on 

the subject. 

2. The Convention could not be finalised at the seventh 

session of the Outer Space Legal Sub-Committee owing to 

certain differences between various delegations. In the 

course of informal consultations held in New York in 

November/December 1968 bet·ween Belgium, Hungary, the USSR, 

the US and India these differences were narrowed duwn. It 

was then agreed that further c6nsultations should be held 

early this year. An official invitation was extended by tb~ 

Government of India to the Governments of Belgium, Hungary, 

the USSR and the USA to meet in New Delhi. 

3. Informal consultations were held between the five 

delegations from 13 March, 1969. Dr. A.J. Vranken of 

Belgium, Dr. A. Prandler of Hungary, Professor A.S. Piradov, 

Dr. Rybakov, Mr. Rubanov and Mr. Dementiev of the USSR and 

Mr. ~eis~ Mr. Almond and Mr. Viets of the United States 

represented their respective countries. Dr. K. Krishna Rao, 

Joint. Secretary and Legal Adviser, Ministry of External 

Affai~s presided over these consultations. The Indian 

Delegation included Shri R. Jaipal, Joint Secretary, U.N. 

Divisio11, Shri C.R. Gharekhan, Deputy Secretary, U.N. 

Division and Shri S.N. Sinha, Law Officer of Ministry of 

External Affairs. · 

4. There was a free and frank exchange of views 

bet\veen the five delegations. F:inally India suggested, 

pursi1ant to this exchange of views, the follm-Iing principles 

for the overall settlement of the four outstanding jssucs 

ment:ionccl bclo\v: 

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(A) Intc1:nnlionnl orgdnis[ltions. 

111 cases where a majority of members of an international 

organisation which conducts space activities are contracting 

parties to the liability convention, that organisation would 

be liable in terms of the convention for damage caused by it. 

If an international organisation ·is responsible in terms of 

the provisions of the convention for damage caused by its 

space object, both the organisation and its members are 

jointly and severally liable. Claims in respect of damage 

due to the space activities of such an international organisation shall be first presented t6 the organisation. If the 

organisation is unable to settle the claim within one year, 

the claimant may proceed against any one or more of the 

members of the organisation ·which are also parties to the 

convention. 

(B) ~pplicable law. 

It was proposed that the amount of compensation payable 

shall be determined in accordance with international law, 

taking into consideration the law of the claimant state and, 

where considered appropriate, the law of the respondent 

state. In case of conflict international law shall prevail. 

(C) Settlement of claims. 

A three-stage settlement procedure was proposed, comprising (1) diplomatic negotiations; (2) an enquiry commission 

coqstituted on the basis of parity, in case diplomatic negoti~tibns are not productive; and (3) in the final resort, a 

tripartite claims commission composed of one nominee each of 

the respondent and claimant states, with the chairman being 

chosen by both. In case the claimant state and the respondent state arc unable to agree directly orr the nomination of 

the chairman, the respective chief justices of the two 

parties or other judicial officers or juris-consults of the 

two pc:i.rties would nominate the chairman. If no agreement is 

forthcoming under this procedure then finally the U.N. 

Secretary-General or some other person of similar standing 

would be asked to nominate the chairman. The decision of 

the cL-1ims commission would be rendered on the basis of 

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majority vote and would be final c:-md bin<ljng. The commissjon 

wou lcl have only 1 i mi ted cornpe tencc, as to whether the danwge 

hacl actually been caused by the respondent state and if so 

the; quantum of compensation due therefor. 

(D) Ceiling on liabilit..Y.. 

The state which is responsible for the launching of a 

space object which has caused damage to other countries would 

be liable to pay compensation without limit for all such 

damage. 

5. It was confirmed by all the delegations that in the 

framework of a general settlement, no distinction would be 

made between nuclear damage and non-nuclear damage. 

6. The Delegation of Belgium agreed to the proposals 

concerning international organisations and settlement of 

claims. They were also in agreement with India's proposal 

regarding the question of ceiling on liability, i.e. that 

there should be no ceiljng. However, the Belgian Delegation 

was prepared, if necessary, and as a matter of compromise, 

to agree to a relatively high ceiling. Concerning applicable 

law, the Belgian Delegation agreed that international law 

should be applicable but felt that further study was required 

in regard to what other systems of law should also be made 

applicable. 

7. The Delegations of Hungary and the U.S.S.R. agreed 

with India's proposals on international organisations, 

applicable law and the question of ceiling. Both the Delegations received India's proposal concerning the settlement 

of claims ·with sympathy. Hmvever, in the vie'\\7 of these 

Delegations, the final stage of the procedure for the settlement of claims requires further study. 

8. The Delegation of the United States agreed ·with 

Indic1' s proposal on internation;:il orgm1isations and the 

settlement of claims. With regard to the proposal on 

applicable law, the U.S. Delegation was also of view that 

international law should be applicable. In the view of the 

U.S. Delegation, the question of also applying other systems 

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of law requires further study. On the question of a ceiling, 

the U.S. Delegation continued to hold the view that there 

should be a ceiling on liability. 

9. It was clearly understood that whatever agreement 

was arrived at in relation to the above-mentioned proposals 

was on an ad referendum basis and in the context of reach~ 

ing an overall settlement of the five major outstanding 

issues. 

10. All the delegations expressed the view that the 

talks in New Delhi have helped considerably in widening the 

area of agreement in regard to major outstanding issues. 

All delegations agreed that it was nuw appropriate to consider concrete formulations. Tμe Delegations of Belgium, 

Hungary, the USSR and the USA expressed their appreciation 

of the initiative taken by the Government of India in convening these talks, as also for the hospitality extended to 

them in the course of their stay i.n New Delhi. 

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P1lSITT.ON PAPER (Final Paper) 

U.N. COMMITTEE ON TIIE 

PEACEFUL USES OF OUTER 

SPACE--LEGAL SUBCOMHITTEE 

LIABILITY COJ\TVENTION 

PROBLEM 

CONfl DCr<ITIP.L 

June 3-27, 1968 

GENEVA 

There- are many outstanding questions upon which agreement must be reached in the Legal Subcommittee before a 

complete text of a Convention on Liability for Damage Caused 

by the Launching of Objects into Outer Space, originally 

a U.S. initiative in the U.N., may be forwarded for eventual 

General Assembly consideration. Recent General Assembly 

approval of the Agreement on the Rescue of Astronauts, the 

Return of Astronauts, and the Retun1 of Objects Launched 

into Outer Space--a subject which had always been linked 

with liability in relevant General Assembly resolutions and 

especially in the minds of the non-space powers--has significantly heightened the desire of the non-space powe~for 

conclusion of a liability convention. Several countries 

have made it clear that conclusion-of a satisfactory liability 

convention will "facilitate" their adherence to the 

Astronaut Rescue Agreement. 

' 

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Indeed, a significant part of the bargain struck at 

the 22nd Geneial Assembly to secure ready approval of the 

largely U.S.-USSR Astronaut Rescue text was a strongly 

worded mandate for the Outer Space Committee to complete 

the preparation of the draft agreement on liability urgently 

and in any event not later than the beginning of the 23rd 

Session of the Assembly. Speaking in the Assembly last 

December 19, Ambassador Goldberg pledged the full support of 

the United States to this goal. 

The most difficult outstanding issues are: ,~,hether or 

not the Convention ·will contain a limit on the amount available to compensate for damages in a particular incident and 

what that amount will be; and whether claims and disputes 

under the Convention will be submitted to third--party settlement procedures; and ·what law ·will be applied to determine 

the amount of compensation due for damage. Among the other 

outstanding questions are: the need for and terms of a 

de fini. tion of II space object"; ·whether exacerbated contributory 

negligen~e of an injured person should reduce the damages due 

him, and the degr\e of rashness which should be required to 

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have this effect; whether primary, secondary or no liability 

whatever should b~ imposed upon a state whose sole participation was that the launch took place from its territory or 

facility; what exceptions, if any, will be made to the rule 

that the Launching State will be liable for any damage done 

by objects it has launched or attempted to launch into-outer 

space; and the manner in which the liability of international 

organizations in space activities should be dealt with. 

The U.S., Belgian and Hungarian proposed treaty texts, 

as well as other proposals and records of areas of agreement, 

are contained in the 1967 Report of the Le8al Subcommittee on 

the work of its Sixth Session> A/AC.105/37. 

U.S. POSITIONS 

1. Introduction. The United States strongly desires to 

reach ~greement on the liability convention at this session 

of the Legal Subcommittee. Though seeking agreement on the 

basis of our proposals in A/AC.105/C.2/L.19 of June 19 last 

year, with a number of modifications noted below) we ·want to 

avoid having earlier preferences become an obstacle to consensus on reasonable alternatives. 

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2. "Space object". Though the U.S. is willing to 

include a satisfactory definition of "space object" in the 

agreement, we do not believe that such a definition can 

easily be worked out and we do not believe that the absence 

of a general definition would render the treaty more difficult to c1pply. 

The Delegation may point out for the record that the 

term "space object" _obviously includes all the objects 

launched in the space programs known or contemplated today, 

whether they be near or deep space probes; Earth or celestial 

body orbiters; celestial body landers; or cargo or personnel 

carriers to and from the Earth, space stations or celestial 

bodies. The Delegation may question whether even this much 

• 

clarity is conveyed by the Belgian or Hungarian proposal. 

if ·it appears tactically useful, the Delegation may 

propose that a description along the following lines be 

included in the agreement: 

''The term I space object' includes parts of the 

object as well as its boosters and parts thereof." 

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Comment: The U.S. proposal, as well as the Belgian, 

applies only to damage done by a 11 space object". The 

Hungarian draft covers damage by an "object" during or after 

"launching". Both the Belgian and Hungarian proposals define 

"space object", the Belgian using the phrases "move in outer 

space" and "sustained there other than by the reaction of 

air. 11 The Hungarian draft uses similar phrases. The 1967 

U.S. draft contains no definition. 

The Belgians have privately argued that a definition of 

"space object" is not only logically necessary to determine 

the activities to which the Convention will apply, but also 

that its inclusion will undercut the French argument that a 

definition of outer space is necessary and urgent. It seems 

likely, howevir, that the Belgian and Hungarian proposals, 

using the words 11move in outer space", would exacerbate the 

outer space definition problem. Furthermore, these proposals 

are subject to interpretations which might exclude things 

that should be included) such as high-altitude sounding 

rockets, which arguably are not 11 sustained11 in outer space, 

and those re-entry bodies ~iliich use aerodynamic forces at 

altitudes too high to be regarded as airspace. 

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The Delegation should avoid raising any question concerning the coverage of ~amage that might be caused by the 

nuclear warheads of objects launched into outer space. It 

is not our policy to seek to exclude such damage from the. 

liability convention, whether by putting in an express exclusion or trying to build a legislative history in support of 

such an exclusion. The United States has no intention of 

engaging in activities in violation of the Limited Test Ban 

Treaty or the Outer Space Treaty; and the possibility of a 

U.S. nuclear ballistic missile "getting away" can be regarded 

as non-existent. In any case, any resulting damage ~ould not 

be excluded from the coverage of Article VII of the Outer 

Space Treaty, and there would thus be no purpose in trying 

. to get an exclusion from the implementing liability convention~ It should be borne in mind that to do so would make 

the U.S. appear to consider such damage as a real possibility. 

Seeking an exclusion ·would likely involve discussj_ons of the 

reliability of fail-safe mechanisms command and control 

arrangements and the like, which might become the focal point 

of Legal SubcoITut1ittee attention. This would be contrary to 

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our national interest. We do not now wish to stimulate 

international discussion of these matters, and certainly not 

:in the U.N. Outer Space Committee which is a completely 

inappropriate forμ,m. 

If pressed privately by Japan, which has shown an 

interest in the matter, or by others, the Delegation should 

state that the U.S. considers any such damage to be extremely 

hypothetical, that it would, in any event, not be excluded 

from the coverage of the Space Treaty or the liability convention (unless some other delegation seeks an exclusion). 

We would make a similar statement to the Senate if a question 

on this point should be raised during hearings on the Convention. 

• On the other hand, the Delegation should do what it can 

to gi-ye the members of the Subcommittee a better understanding of the prospects of utilization of nuclear power sources 

and propulsion systems. It should continue to oppose the 

Hungarian effort to exclude nuclear damage arising from such 

technology; there is no reason to treat nuclear damage of 

this sort differently than any other damage. 

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3. Limitation of Liability. The United States strongly 

desires a limit per incident. We have no firm preference for 

a particular dollar limit, since, by the nature of things, 

such a figure ls to a significant degree arbitrary and, 

therefore, depends upon negotiation. We are prepared to 

~, 

agree to any amount up to $500,000,000. The Delegation 

should, however, check with the Departm~nt before committing 

th~ United States to any particular figure. 

Since the Soviets apparently feel free to oppose a 

limit, there will be a political price to pay for insisting 

upon one. To minimize it, the Delegation should undertake 

consultations aimed at inducing one or more of the ESRO-ELDO 

nations, Japan or India to share the burden of proposing or 

. defending a dollar limit. In these consultations, the Delegation ,should indicate that we have no firm preference for 

any particular figure and could accept almost any of th~ 

liability treaty precedents. The Delegation may point out 

that we have hesitated to propose a specific figure partly 

for fear that it might be too high for all but the principal 

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If necessary to secure agreement on a reasonable limit, 

the Delegation may propose the addition of language along 

the following lines in connection with a limit: 

This limit of liability shall have no application 

if the damage was caused by an act or omission 

done with intent to cause damage oi recklessly and 

with knowledge that damage would probably result. 

Comment: Since non-space powers are well aware that 

the Outer Space Treaty places no limit on liability for damage 

done by the launching, transit o~ descent of space objects, 

we may be unable to secure a limit of any amount in this 

Convention. It may be that the smallest figure that will 

enable the U.S. to bring around any of the non-space powers 

on the Outer Space Committee is $500,000,000, the amount 

established in the international agreements concluded under 

the Savannah Statute and by the Price-•Anderson Act for nuclear 

damage indemnification ·within the United States. en the 

specific limit as essential in order to obtain ratifications 

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by potential Respondent States. Indeed, there has been no 

detailed international liability agreement in any field, 

nuclear or otherwise, without a limit. 

Other near space powers on the Com.'11ittee should be 

sounded out privately on a limit and on the amount of such 

a limit. If they can be brought to view themselves as 

potential Respondent States, they may well develop a greater 

interest in a reason~ble limit. We can point out 

that fairly low limits have been deemed appropriate and 

necessary by many in the international community in liability 

agreements in the potentially catastrophic area of nuclear 

damage and in the more closely analogous area of aviation. 

Among the precedents are: 

a) Nu~lear, Paris Convention of 1960: $15,000,000, 

but allows Parties to set any limit above $5,000,000. 

b) Nuclear, Supplementary Convention to the Paris 

Convention, 1963: $120,000,000. 

c) Nuclear, Brussels C<?nvention on Liability_£!:, 

Operators of Nuclear Ships 2 1962: 1500 million 

francs (npprox. $100,000,000). 

d) Nuclenr, Vienna Convention, 1963: $5,000,000 

minimum but Installation States may set higher 

-limits. 

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e) Aviation, Rome Convention, 1952: Varies by 

weight: e.g., 500,000 francs (approx. $33,000) 

for aircraft of less than 1,000 kilos; 10,500,000 

francs (approx. $693,000) for aircraft of 50,000 

kilos. In addition it contains a 500,000 franc 

limit on the injury or death of a single.person. 

The additional language the Delegation is authorized to 

propose in connection ·with a limit is drawn from the Warsaw 

Convention and the Belgian contributory negligence proposal. 

Placed in context, it may provide reassurance necessary to 

• secure agreement to a limit. 

l~. AJ2portionment of the amount available. The Delegation may agree to a fo1.11mla that would (a). appropriate 50% 

of the available amount to meet claims in respect of loss of 

life and personal injury, and (b) allocate the remaining 50% 

equally among the total amount of property claims and any 

unsatisfied death and personal injury claims. 

Comment: This amounts merely to changing the 75% loss 

of life and personal injury preference in our 1967 proposal 

to a 50% preference. The Belgians apparently prefer the 

lower figure, which parallels the 1952 Rome Convention on 

Damage to Third Parties on the Surface, and it is defensible 

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against charges that we value life and property equally 

since, in every case where loss of life and·personal injury 

claims exceed 50% of the limit, the unsatisfied portion 

will be added to the amount of property claims and share in 

apportionment of the remaining 50%. 

5. Measure of dama~. Hungary's proposal that the 

law of the Launching State govern the measure of damage is 

undesirable. We continue to prefer that this be governed 

by "applicable principles of international law, justice and 

equity." As authorized earlier, the Delegation may agree to 

drop the words "justice and equity" if this clarifies our 

proposal for others. The Delegation may, in its discretion, 

propose to give the parties the option of agreein~ on a law· 

other than internati'onal law and may draw on the following 

language: 

The compensation which a Respondent State 

shall be liable to pay for damage under this 

Convention shall be determined in accordance with 

applicable principles of international_law 

[,justice and equity] or in accordance with 

principles or local law agreed upon by the Presenting and Respondent States. 

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Comment: The only apparent justification for the 

Hungarian proposal to adopt the local law of the Launching 

State as controlling is the contention that local law is 

likely to be more certain and complete on this question than 

international law. However, Belgium's proposal that the 

local law of the injured person's country govern has the 

same possible virtue and the additional one of applying a 

system of law that takes into account the legitimate expectations of the injured party. Furthermore, Hungary's proposal 

does not meet the problem of multiple Launching States. In 

July last year, the Hungarians told us in the presence of 

the Belgians that they could accept a simple "international 

law" standard. 

We prefer an international law standard for several 

reasons: (a) the difficulty of determining the local law 

on measure of damages in a federal system such as our o,~~, 

(b) the difficulty of determining in advance the elements 

we will have agreed to compensate under a convention applying local law standards, (c) the unfamiliarity of foreign 

office claims divisions with a multiplicity of foreign local 

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law systems, and (d) the possibility of non-space powers 

developing special damages law for injuries caused by space 

objects. 

On the other hand> it is not easy to rebut the Belgian 

argument that application of an international la~ standard 

could create opportunities for abuse by Respondent Stat"es 

absent third-party settlement procedures. A theoretically 

ideal solution--definition in the Convention of the elements 

compensable under an international law standard, such as the 

U.S. proposed to the Belgians in March last year--is diffiI 

cult to draw up and almost impossible to negotiate in view 

of its length and detail. 

6. Damage to permanent residents of the Launching 

State. Though our existing draft proposal permitting the 

presentation of claims on behalf of permanent resident nonnationals of the Launching State is in keeping with international practice and the principle of State diplomatic 

protection of its nationals, we are quite prepared to modify 

our Article VII to agree with the Belgian approach which 

would bar the :presentation of such claims. I \ 

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Comnent: The Belgian draft is the only one to exclude 

from the Convention claims on behalf of nationals of one 

state who are permanent residents of the Launching State. 

The Belgian position appears justified. There is no apparent 

reason to grant an international remedy to an alien who has 

become a permanent resident of the Launching State since • I 

(a) he should normally be in as good a position as nationals 

of that State to pursue whatever local remedies may be available, and (b) the Convention deals with an area of unintentional injury where the State of nationality would noi have 

the same kind of interest in providing diplomatic protection 

as it would in cases where its nationals are injured by the 

failure of the country in which they permanently resided to 

abide by minimal international standards of conduct. 

7. Damage done in Launching State territory. In our 

view, an exclusion for any and all damage sustained in the 

territory of the Launching State is unnecessary. The Delegation may, however, accept such an exclusion if consensus 

develops in its favor. 

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Comment: The Belgian proposal contains such an exclusion. Its effect would be to leave only domestic remedies 

in the Launching State open to foreign nationals who were 

merely passing through its territory or airspace when 

injured, per~ons for whom those remedies would not be convenient or appropriate and whose uncompensated injuries 

would be a burden on the State to which they returned. On 

the other hand, this is not a point of particular importance. 

8. Damage done in outer space and certain other areas. 

The United States is prepared to modify its past position 

favoring the exclusion from the Convention of damage done 

within a planned launch or recovery area and to space objects 

and their personnel during launching, transit or descent. 

The Delegation may propose covering such damage provided 

that liability in these cases is fault-based. 

The gaps in the Hungarian proposal's coverage of outer 

space, probably inadvertent, are not justified in our view. 

Dnmnge done by n spncc object to persons and property on n 

celestial body, whether inside or outside their space vehicle, 

should be covered on a non-fault basis, just ·as in the case 

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of damage sustained on the surface of .the Earth. By contrast, it seems appropriate to apply the concept of liability 

for fault to injury to astronauts and equipment engaged in 

activities in outer space (except on celestial bodies). 

The following revision of Article II of our 1967 proposal may be draw11. on in working out agreed language to 

reflect these changes: 

1. The Launching State shgll be [absolutely] 

liable to pay compensation to the Presenting State 

in accordance with the provisions of this Convention) for damage shmm to have been caused by the 

launching, transit or descent of all or part of 

a space object. 

2. The Launching State shall not be liable 

for damage caused to persons and property within 

a launch facility or planned immediate recovery 

area for participation in or observation of the 

·launch or recovery, or to space objects and their 

personnel during launching, transit, or descent, 

unless it is sho'im to have been caused by the fault 

bf the Launching State. 

3. In the event that the collision of spac6 

objects of two.or more Launching States causes 

damage to others, the Launching States shall be 

jointly and severally liable for such damage. 

They may recover among themselves on the basis of 

comparative fault for any payments made to Presenting States pursuant to this paragraph and in 

compliance ·with Artie le III. 

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4. (Contributory negligence). 

· 9. Natural disaster. The Delegation should continue 

our past opposition to the Hungarian proposal for exoneration 

of the Launching State in the event the damage was caused by 

a "natural disaster". 

10. Contributory l}egligence. We continue to believe 

that relief should be given the Launching State to the extent 

that the injured party's recklessness contributed to his 

damjge·, although the problem is one more of abstract justice 

than practical significance. The U.S. formulation is technically better than the Hungarian; the Belgian formulation is 

the least desirable since it would apparently cover only what 

might be viewed as suicidal conduct. If our formulation is 

unacceptable to the ·Belgians and others, the Delegation may 

propose alternative language and may draw on the following 

suggestion: 

"If the damage suffered results either ·wholly or 

partially from a ·wilful act or omission or from a 

(reckless)(rash)(foolhardy)(grossly negligent) act 

br omission from which damage should (reasonably) 

have been anticipated, the liability of the Launching State to pay compensation under paragraph 1 of 

this Article, shall, to that extent, be wholly or 

partially extinguished. 11 

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The Delegation may, as a fallback, acquiesce in a consensus 

on the Belgian proposal or on deletion of the concept 

entirely. 

Comment: All three texts grant proportional relief for 

contributory recklessness. The U.S. and Hungarian texts are 

almost identical in their definiticin of such conduct, the 

U.S. text using "wilful or reckless act or omission" and the 

Hungarian text using "wilful act or gross negligence"; except 

for failing to use the word "omission", the Hungarian text 

presents no problem. The Belgian text is much stricter, 

requiring an act or omission that was intended to cause 

damage or was committed "rashly and in full knowledge that 

damage will probably result." Unlike the U.S. and Hungarian 

texts, the Belgian text makes the "reasonable man" test 

irrelevant and requires proof of actual knowledge on the 

part of the injured person, a burden of proof which would be 

extraordinarily difficult to meet. 

We believe it inappropriate for the Launching Stnte to 

be required to bear the entire cost of damage recklessly 

incurred or aggravated by others, ~ut we could accept_ a 

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convention with the stricter Belgian standard since, first, 

no exoneration is provided by Article VII of the Outer Space 

Treaty and, second, the instances of contributory negligence 

are likely to be extremely rare. Since the concept would 

rarely be applicable and would not be expected to greatly 

reduce a Launching State's liability, we would not wish to 

make this a sticking point in opposition to clearly expr.essed 

majority sentiment. 

The precedents in air law are closer to the U.S. and 

Hungarian standard than to the Belgian. Hmvever, Article II, 

paragraph 5, of the Brussels Convention of 1962 on Liability 

of Operators of Nuclear Ships provides: 

11 1£ the operator proves that the nuclear damage 

r.esulted wholly' or partially from an act or omission 

done with intent to cause damage by the individual 

who suffered the damage, the competent courts may 

·exonerate the operator wholly or partially from his 

liability to such individual." 

Belgium's particular language in the space liability proposal 

seems to be borrowed out of context from Aiticles 25 and 25A 

of the 1929 Warsaw Convention as amended at The Hague in 1955. 

These provisions do not deal with contributory negligence. 

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Rather, they make the Convention's limit of liability inapplicable if "the damage resulted from an act or omission 

of the servant or agent (of the air carrier) done with intent 

to cause damage or recklessly and with knowledge that damage 

would probably result." Other precedents in the area of 

contributory negligence are as follows: 

a) The Warsaw Convention of 1929, Article 21: 

"If the carrier proves that the damage was caused 

by or contributed to by the negligence of the 

injured person the court may, in accordance with 

the provisions of its avm law, exonerate the 

carrier wholly or partly from his liability." 

b) The Rome Convention _of 1952, on Dam~e to Third 

Parties on the Surface, Article 6: s: ••• If the 

person liable proves that the damage was contributed to by the negligence or other wrongful act 

or omission of the person who suffers damage, or 

of his servants or agents, the compensation shall 

be reduced to .the extent to which such negligence 

or wrongful act or omission contributed to the 

damage. Nevertheless, there shall be no such 

exoneration or reduction if, in the case of the 

negligence or ·other wrongful act or omission of a 

servant or agent, the person who suffers the damage 

proves that his servant or agent was acting outside 

the scope of his authority." 

c) The Vienna Convention of 1963 on damage caused bz 

land-based nuclc<Jr reactors 2 Article IV0: ''If the 

-operator proves that the nuclear damage resulted 

wholly or partly either from the gross negligence 

of the person suffering the damage or from an act 

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or omission of such person done with intent to 

cause damage, the competent court may, if its law 

so provides, relieve the operator wholly or partly 

from his obligation to pay compensation in respect 

of the damage s~ffered by such person." 

d) The Paris Convention of 1960 on Third Party 

Liability in the Field of Nuclear Energz: This 

Convention does not specifically cover the point 

and applies national law to any questions not 

covered in the Convention. It does contain a 

possible red herring in Article 6(£) which gives 

an operator a right of recourse against the 

individual whose act or omission done with intent 

to cause damage did cause the damage. 

11. Absolute liability. The Delegation may drop the 

word "absolutelyu from Article II(l) if an opportunity arises 

since some delegations have viewed this concept as requiring 

non-fault-based liability with no exceptions or exonerations, 

while we have always regarded certain proposed exceptions and 

• 

exonerations as desirable. 

12. Electronic and radiation interference. We believe 

that damage to one space object which might be done by 

radiation or other interference from another space object is 

not covered by the existing proposals for the Convention, and 

that it should not be. Similarly, we believe that these 

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with the operation of ground systems. The Delegation should 

take· steps to see that this understanding is shared and 

reflected adequately in the drafting history. If this is 

not the shared understanding, the Delegation should propose 

treaty language to effect this exclusion. 

Comment: The possible problems of interference between 

communications satellites, possible wipe-out of satellite 

sensors by radiation from another space object, interference 

with ground broadcasts and other ground activities, and other 

problems which may arise are far enough in the future to make 

detailed treaty obligations difficult. Our current proposal, 

which imposes liability for damage done by the launching, 

transit or descent of a space object, refers to impact damage 

and damage attendant to impact throughout this sequence> the 

area 6£ current concern internationally. 

13. Juridical persons. The Delegation may agree to 

drop the exclusion in Article VII of damage to juridical 

persons bcnefically owned by nationals of Respondent States, 

or to limit that exclusion to cases ·where such juridical 

persons are om1.ed ·wholly by such nationals. 

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14. Claims commission. A non-parity claims commission 

is a central element of the liability convention if it is to 

represent progress beyond Article VII of the Outer Space 

Treaty. If we cannot persuade friendly delegations that this 

issue is worth fighting for and iJ they put considerable 

pressure on us to dispense with third-party settlement, the 

U.S. Delegation may acquiesce. The Delegation should in any 

event oppose provision for a 11 parity11 commission as giving a 

completely illusory appearance of progress in the area of 

impartial settlement. 

15. Election of other remedies. The Delegation may 

propose to modify our present Article IX(2) so that it will 

bar only the concurrent pursuit of other remedies, rather than 

e~t.inguish tho right to claim under the Convention if another 

remedy is pursued. 

Whether or not this is done, the Delegation may propose 

the deletion of the words ''against such Respondent State" 

from our formulation of Article IX(2). These words inadvertently leave open the possibility, in the event two or more 

Respondent States, are involved in an incident, of a particular 

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claim being pursued against one out~ide the Convention and 

against others under the Convention. 

The Delegation may also make a technical improvement in 

our proposed Article IX(2) by changing the words "whom it. 

might represent" to "on whose behalf it is entitled to pursue 

a claim. 11 

As revised on th~se points, Article IX(2) might read: 

If the Presenting State or a natural or 

juridical person on whose behalf it is entitled 

to present a claim elects to pursue a claim in 

the administrative agencies or courts of a 

Respondent Stat~ or pursue international remedies 

outside this Convention, the Presenting State shall 

not he entitled to pursue such claim concurrently 

under this Convention. 

16. International Organizations. We are willing to 

modify our proposal to reflect the precedent established in 

Art_icle 6 of the Astronaut Rescue Agreement (definition of 

"launching authority" to include certain international 

organizations) or ·whatever other reasonable formulation 

would be acceptable to the ELDO-ESRO membership. In -addition, 

the Delegation should seek to establish, whether by building. 

a record or by securing specific language in the Convention, 

that nationals of members of such inten1.ational organizations 

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arc nationals of a Launching State for the purpose of this 

Convention with the result that the Convention would not 

apply. 

Comment: International arrangements for ensuring compensation to ~njured nationals of cooperating states cannot 

be appropriately dealt with by general multilateral convention. 

17. Review Conference. The Delegation may agree to the 

inclusion of an article providing for a review conference to 

be held at some fixed time (e.g., ten years) after the Convention has entered into force. 

Attachment: 

1967 Outer Space Legal Subcommittee Report. 

COrfflD£WTIAks 

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