Draft Spaw Law for Switzerland: Who is liable if things go wrong?
The preliminary draft of a new Swiss space law establishes clear national liability rules for damage caused by space objects. Its core feature is the operator's direct civil liability, which simplifies legal remedy for injured parties in Switzerland and reduces the federal government's international liability. The draft introduces strict liability (without proof of fault) for damage on Earth and fault-based liability for damage in space. This model aligns with the international Liability Convention and reflects the proven Swiss liability system. The drafters rejected alternatives, such as direct state liability with recourse, to avoid burdening the federal government with uncovered risks. A general insurance obligation is deemed disproportionate; instead, the supervisory authority may require liability insurance for activities with increased risk.
International liability
Under the Outer Space Treaty (SR 0.790) and the Liability Convention (SR 0.790.2), Switzerland is liable for any damage caused in another contracting state by a space object for which it is the launching state. This international liability, however, only governs relations between contracting states. Consequently, a natural or legal person from one contracting state cannot directly sue an individual or a legal person in another contracting state based on these treaties. Instead, only the state of the injured party may assert a claim for damages against another contracting state, which must be pursued through diplomatic channels (see Art. IX Liability Convention).
As the international liability procedure involves uncertainties, the preliminary draft of the new Federal Act on Space Operations ("PD-SOA") introduces a national liability regime (cf. Art. 23 et seq. PD-SOA), which is detailed below.
Civil liability under the SOA
To establish a practicable legal remedy, the preliminary draft of the SOA introduces a key innovation: the operator's direct civil liability.
This offers two main advantages:
- Clarity for injured parties: They can bring claims directly against the responsible operator of a space object in a Swiss civil court.
- Relief for the Confederation: It reduces the risk of the Swiss Confederation having to pay for damages caused by private actors under its international law obligations. Injured parties can choose to either claim liability under the SOA in a Swiss civil court or assert a liability claim through their home country under the Liability Convention, thereby claiming damages from the Swiss Confederation. If they opt for compensation proceedings under the Liability Convention, liability under the SOA is excluded. However, should the Swiss Confederation be liable for damages under the Liability Convention, it can seek recourse against the operator of the damaging space object according to the rules of the SOA (cf. Art. 28 PD-SOA).
Causal or fault-based liability? – it depends where the damage occurs.
The preliminary draft of the SOA differentiates liability based on where damage occurs.
Strict liability applies to damage on the Earth's surface or to aircraft in flight (cf. Art. 23 PD-SOA). The operator is liable regardless of fault; it is sufficient that its space object caused the damage. This strict liability is justified by the particular danger posed by space activities and is comparable to regulations in road traffic, aviation, or nuclear energy law.
Art. 23 PD-SOA provides the usual grounds for exemption from strict liability.
Art. 24 PD-SOA establishes fault-based liability for damage to or on another space object. If a space object registered in the Swiss Space Register or approved for operation by Switzerland damages another space object elsewhere than on the Earth's surface or causes personal injury or property damage on board such an object, the injured parties must prove the operator's fault. This liability rule follows the model of Article III of the Liability Convention.
For liability issues not specifically regulated by the SOA, the provisions of the Swiss Code of Obligations apply (cf. Art. 25 PD-SOA). This includes, in particular, the provisions on the limitation period for liability claims.
Alternatives considered but rejected
The Federal Council also considered other liability models but rejected direct state liability with subsequent recourse to the operator. While this model would benefit injured parties, it would create incalculable risks and a significant administrative burden for the federal government.
The Federal Council also dismissed subsidiary federal coverage, where the state covers un-funded damages, as overly complex and inconsistent with the existing system. The chosen solution, direct operator liability, aligns best with Switzerland's proven liability framework.
The role of liability insurance: mandatory insurance only if increased risk
Does this mean every operator must now purchase expensive insurance for their satellite's entire service life? No. The preliminary draft deliberately avoids a general insurance obligation, leaving operators to decide whether to insure their risks. Analyses have shown that in most cases, the risks are extremely low. Furthermore, smaller individual research projects are often uninsurable or at least not at a reasonable cost.
Instead of a general insurance obligation, the preliminary draft adopts a risk-based approach. As part of the authorisation process, the supervisory authority may require liability insurance with a specific sum insured if an activity involves increased risks, for example, during the launch phase or a satellite's controlled re-entry. This approach ensures financial coverage where necessary without burdening the industry with disproportionate costs.
Conclusion: a balanced and modern legal framework
The proposed liability framework for Swiss space activities creates legal certainty and closes an important gap. It protects injured parties by providing them with direct and fair access to legal remedies, while simultaneously relieving the federal government of this burden. Through direct operator liability and flexible insurance requirements, Switzerland establishes a modern, balanced regulatory framework that considers the unique characteristics of space operations and strengthens Switzerland's innovative power as a business location.
Authors: Lukas Züst, Joel Drittenbass
