Attribution of Conduct in Space Activities to State: A Comparative Study in General International Law and Space LawOA

The exponential growth of commercial space activities,accounting for more than 80%of the$630 billion global space economy,has profoundly reshaped the space governance landscape.As private actors such as SpaceX and Planet Labs increasingly assume the responsibilities that the law of space has traditionally entrusted to states,fundamental issues arise with respect to the attribution of internationally wrongful acts that occur in outer space.In this paper,the authors engage in a comparative analysis of the principles of attribution of internationally wrongful acts,as established generally under international law,as codified in the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts(ARSIWA),and the application of such principles to space activities that are subject to the Outer Space Treaty(OST).This paper makes three main arguments.First,the paper argues that Article VI of the OST,far from expanding state responsibility beyond the standards established in the ARSIWA,merely sets forth a concurrent obligation of due diligence—a term not expressly used in Article VI but implied by the requirements of authorization and continuing supervision,reflecting an obligation of conduct as recognized in general international law(e.g.,ICJ,Pulp Mills,2010)that binds states to authorize and supervise the space activities of their nationals.Secondly,it shows the ineffectiveness of the existing control criteria,which include the effective control test adopted by the Nicaragua tribunal and the overall control test adopted by the Tadic tribunal.Finally,the paper outlines a new framework for attribution based on the regulatory authority and supervisory capacity of the state.This is done through a four-step sequential approach that considers the legal nexus,the adequacy of the supervisory framework,the attribution requirements under the ARSIWA,and Article VI.The paper applies the attribution framework to four issues currently facing the international community:the issue of mega-constellations and the creation of a supervisory deficit,the issue of autonomous systems and the concept of algorithmic control,the issue of transnational ventures and the concept of attribution,and the issue of dual-use technologies and the blurring of the military-commercial divide.It then outlines a number of reforms that include the creation of graduated forms of attribution with objective operational criteria,the framecreation of registration systems with increased transparency,and the creation of minimum norms for national space legislation.