Crystal Ong

21 April 2012

Legal Issues of the 21^st Century

Legal Research: Space Law

1. US Law

   1. Current law

      1. Patents:

         1. Per 35 U.S.C.A §105, Inventions made, used or sold in outer space on a space object under the jurisdiction or control of the United States is deemed to have been made, used or sold in the United States.¹

      2. Insurance:

         1. NASA may provide liability insurance for a person operating a space vehicle.²

         2. NASA may also provide liability insurance or indemnify a developer of an experimental space vehicle if such development is subject to an agreement with NASA.³ The provisions of this section terminated December 31, 2010

      3. Private space travel

         1. Commercial Space Launch Act

            1. First passed in 1984, the Act deregulated the space sector and placed the US commercial launch industry under the Department of Transportation’s purview.⁴

            2. DOT was given two objectives: 1) encourage private commercial space launches and 2) license and regulate that industry.

            3. Amended in 2004, the Commercial Space Launch Amendments Act cleared the way for passengers of commercial space travel. The amendment provided for a 2 step regulation scheme that provided for the Federal Aviation Administration to regulate space vehicles only if there was an instance of death, serious injury or a close call for the first eight years. Following that, the FAA may regulate suborbital spaceships as they deemed appropriate. ⁵

   2. Other Organizations

      1. Legal publications:

         1. Journal of Space Law⁶ (University of Mississippi): seems to be the only semi-consistently active law journal for space law

      2. American Bar Association:

         1. Forum Committee on Air and Space Law⁷

2. International

   1. Treaties⁸

      1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (10 October 1967)⁹

      2. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (22 April 1968)

         1. If any party to the agreement becomes aware of a spacecraft person in distress, that party must notify the launching party and the UN (Secretary General). The party that becomes aware of the person in distress must provide all possible assistance. This agreement covers the situation where an astronaut has landed within another party’s territory. If the astronaut lands extraterritorially, any party state that is in a position to render assistance must do so.¹⁰

      3. Convention on International Liability for Damage Caused by Space Objects (1 September 1972)

         1. Parties to the agreement bear international liability for all space objects launched within their respective territories.

         2. Claims can only be brought on the state level, no direct private action is allowed.¹¹

      4. Convention on Registration of Objects Launched into Outer Space (15 September 1975)

         1. A registry kept by the UN logs the orbit of each space object.

         2. The registry includes information on the launching state, name/number of the space object, location of the launch, basic orbit information and the general function of the launched object.¹²

      5. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (18 December 1979)

   2. Agencies

      1. United Nations, Office of Outer Space Affairs

         1. Focus is on “non-appropriation of outer space by any one country, arms control, the freedom of exploration, liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, the prevention of harmful interference with space activities and the environment, the notification and registration of space activities, scientific investigation and the exploitation of natural resources in outer space and the settlement of disputes”.¹³

         2. Any benefits from outer space should be for all countries, all humankind

      2. European Centre for Space Law¹⁴

   3. International Space Station¹⁵

      1. Five signatories (US, EU, Russia, Canada and Japan) created a legal framework to establish and maintain the International Space Station

         1. The Intergovernmental Agreement is an international treaty that lays the foundation for the international partnership

         2. There are four Memorandums of Understanding between each signatories space administration (US: NASA, EU: ESA, Canada: CSA, Russia: Roscosmos, Japan: JAXA). These MOUs lay the groundwork for management structure and interfaces on the station. They also describe how each agency will participate in the design, development and use of the space station.

         3. In order to implement these MOUs, the individual space agencies have also established Implementing Arrangements between themselves. These arrangements give guidelines and distribute tasks among the agencies

      2. Jurisdiction

         1. Each of the partners to the Intergovernmental Agreement extends their national jurisdiction to the items they provide to the station. Such items must be registered.

         2. Jurisdiction is also extended to the personnel that each partner provides.

      3. Liability

         1. The Intergovernmental Agreement includes a cross-waiver of liability for all five partners and their contractors, subcontractors, users and customers

         2. Willful misconduct, claims for bodily injury or death and intellectual property claims are exempted from this waiver

      4. Intellectual Property Rights

         1. Since part of the International Space Station’s objective is to perform research, the use of new technology is likely

         2. To that end, the partners agreed to create special marking procedures in order to maintain the proprietary and confidential nature of each other’s data and goods. Such markings will indicate to the user the limited nature of how the data or goods may be used

         3. 3^rd parties who have had their intellectual property rights infringed may proceed against the offending party according to the appropriate national law regime.

3. Issues:

   1. Property rights in space:

      1. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies indicates that no country can lay claim to the moon or other celestial bodies so the applicable law may be similar to international waters.

         1. However, several law review articles have argued that only the state is prohibited from laying claim to extraterrestrial “land”. Private actors, and this is especially appropriate given the recent shift in the US from government funded to private sponsored space travel projects, would not be subject to that restriction.¹⁶

         2. In 2004, a plaintiff attempted to get a declaratory judgment to establish his property rights in a particular asteroid.¹⁷ The court determined that neither his registration on the Archimedes Institute website nor his filing of a Uniform Commercial Code security interest in California created a property interest in the asteroid in question. It remains to be seen if a private actor, flown on a private space vehicle, not acting as a government agent, would be able to establish ownership rights in space territory.

      2. Where does space start?

         1. Where does national airspace end and outer space begin? The lowest point that outer space could begin at would be the closest point that any existing (or previous) satellite made its closest approach to the earth, also known as its perigee.¹⁸

      3. How do you allocate how much space you get?

         1. Since the United Nations Office for Outer Space Affairs maintains the registry of orbiting objects, that database could be used to establish “space” provided based on orbit.

   2. Criminal law in space¹⁹:

      1. Likely to be similar to international waters or Antarctica where jurisdiction may be extended (there is a split in authority)

      2. A court facing this issue will consider whether the legislative intent of the statute implicated is consistent with the five essential principles of international law

         1. Territorial principle: event took place within national territory or had intended effects within the territory

         2. Nationality principle: nationality of offender

         3. Protective principle: nation’s need to protect its security and integrity of governmental function

         4. Passive personality principle: nationality of victim

         5. Universality principle: crime so heinous that the prosecuting country is doing so on behalf of the world community

   3. Tort law for injuries resulting from:

      1. Activities in space:

         1. If the conduct was willful and took place in the context of the International Space station the Intergovernmental Agreement would be implicated.

      2. Debris falling from space [T.I.A.S. No. 6347, Art. VII, 18 U.S.T. 2410, 1967 WL 90200.]

         1. Such debris is considered pollution. If a state pollutes by engaging in an abnormally dangerous activity, such as launching space objects, they are absolutely liable to pay compensation for damage to aircraft in flight and damage incurred on the surface of the earth²⁰