Lawyers in Space

From the start of the space age, it was clear that aspects of the space environment raised legal and international governance issues which existing admiralty and aviation law did not address. An Earth satellite, for example, depending upon its orbital inclination, will overfly multiple countries (the entire surface of the planet for a satellite in polar orbit), transcending concepts such as national borders and control of airspace, and allowing photo-reconnaissance and monitoring of internal communications which would be considered serious violations of sovereignty if conducted at lower altitude. If a spacecraft crashes to Earth on the territory of a country other than that which launched it, who owns the debris? If it causes damage, who is liable, and how are claims made and adjudicated? Who owns the scarce “slots” in geostationary orbit where communication satellites are placed, and what’s to prevent space pirates from seizing them for their own use? Who owns the Moon, and resources extracted from it and other celestial bodies? What are the responsibilities of operators of satellite constellations to avoid collisions with other users of similar orbits?

Over the decades since Sputnik, these blanks have been slowly filled in by the development of space law, through treaties, bilaterial agreements, rule-making by bodies such as the International Telecommunications Union, and case law. As development of space resources progresses, space law has the potential to either facilitate or severely damage the human prospect for expansion from the home planet (for example, rainbow-and-unicorn communist treaties declaring everything off-planet to be the “common heritage of mankind” and that “private property ends at the Kármán line” as in the bubble-headed Moon Treaty which has, so far, been ignored by all serious space-faring countries.)



But where the court? Where the Judge?


The Outer Space Treaty and its subsequent extensions such as the 1968 Rescue Agreement and 1972 Space Liability Convention all assume that activities in space are all ultimately the responsibility of nation states which are signatories to the treaties. If the launch is conducted by a private party, that party is assumed to have been licensed by the government from whose territory the launch was conducted. In the U.S., the Federal Aviation Administration has the responsibility for licensing launches from the U.S.

Claims, for example, for damages caused by launch accidents or objects falling from space, must be filed on a state-to-state basis. If the claim is paid and the launch was by a private party, it would be up to that state to recover damages from the launching company or its insurer.

To date, the only claim filed under the Liability Convention is that made by Canada against the Soviet Union after the Kosmos 954 nuclear powered radar reconnaissance satellite made an uncontrolled re-entry and scattered debris across the Canadian arctic. Canada billed the Soviet Union for CAD 6,041,174.70 (those Canadians count every penny!) for the cost of the clean-up and after protracted negotiations the Soviet Union and Canada settled in April 1981 for CAD 3 million.

If, for example, the piece of debris from a SpaceX capsule that came down on an Australian farm on 2022-07-09 had, say, killed a sheep, the farmer would have had to persuade the Australian government to file a claim with the U.S. government whose responsibility it would be to pay and then, presumably, go after SpaceX to recover the payment.

There are doubtless precedents in maritime law over the centuries which might apply to situations that arise in space.