Governing The Galaxies: Analyzing Tort Applicability in Space
In the twenty-first century, interstellar travel has captured the curiosity of millions around the world. If the intrepid space missions of Jeff Bezos and Elon Musk are any indication, creating a multi-planetary society or traveling to Mars for vacation could soon be our reality. However, the space ventures of SpaceX and Blue Origin pose a multitude of potential threats to safety in outer space and on planet Earth. In turn, this new frontier presents a multitude of new considerations when it comes to the applicability of law in space. While space crimes are few and far between, there is a plethora of unanswered questions regarding tort applicability in space: whether there is a legal basis upon which space law can be applied to private individuals and firms, what conflicts can occur domestically and internationally in the absence of tort law, and whether it is possible to reconstruct the space governance framework in a way that ensures effective enforcement. International agencies and governments must elaborate upon the application of torts, particularly negligence and nuisance, and their applicability to space debris in new governing frameworks. Furthermore, new standards of liability must be defined for torts to private individuals and firms that arise in outer space.
Currently, the United Nations (UN) governs space law through a series of treaties: the Outer Space Treaty (1967), Rescue Agreement (1968), Liability Convention (1972), Registration Convention (1976), and Moon Agreement (1984). [1] These entities are not legally binding, nor is the United States a signatory on some of the major agreements. This suggests that the existing legal infrastructure will be ill-equipped to handle disputes arising in space, particularly those involving American corporations such as SpaceX and Blue Origin.
Given the scarcity of precedent concerning space law, the next best resource is the more well-established legal framework for maritime law—but, in the seas, as in space, national boundaries are tenuous at best. As expected, the United States has not ratified the body meant to guide maritime actions. In 1982, the UN adopted the Convention on the Law of the Sea (UNCLOS), an international treaty that created a legal framework governing any activities occurring in the oceans and seas. [2] There has been a great lack of compliance when it comes to the various agreements established under UNCLOS, which leaves states in the dark when attempting to settle marine disputes. Indeed, states often assert the need for an “equitable solution” without providing steps to find one. [3] Moreover, the United States was not a signatory to UNCLOS, compelling U.S. courts to design conduct standards through maritime case law. UNCLOS’ failures to delineate boundaries at sea suggest that artificially-imposed boundaries for space will likely not be effective. Moreover, given that the United States has yet to ratify the major space law treaties, U.S. courts might be forced to design their own conduct standards to answer key legal questions surrounding space governance, drawing upon U.S. aviation and maritime case law developed independently of UNCLOS.
Another relevant concern would be events such as incidents occurring on the launch pad before the launch occurs. The 1967 UN Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (“Outer Space Treaty”) defines outer space as territory beyond the “sovereign claims of any nation.” [4] Thus, there is no law that can apply to an event occurring in space unless explicitly asserted by an international treaty. However, U.S. courts can still hear cases regarding space-related actions and have historically taken each instance case-by-case until a lack of explicit direction requires Congressional action. [5] The Commercial Space Launch Act of 1984 could potentially act as a foundation on which Congress could regulate private space enterprise, creating the framework for licensing necessary for private launch vehicles. [6] State courts would then apply state law to civil disputes in relation to outer-space incidents such as in aviation when states can enact their own, more individualized laws as long as they are consistent with federal law. [7] Since commercial interests are not directly elaborated upon in the Outer Space Treaty, the Rescue Agreement, or the Liability Convention, these bodies are limited in managing legal issues that arise. [8] UN conventions and resolutions help states coordinate their legal frameworks, but since each nation creates laws consistent with its own legal tradition, their legal boundaries do not always coalesce. Nonetheless, these existing treaties serve as useful guides for a new framework for the regulation of space torts.
Current space treaties focus primarily on incidents related to collisions with space vehicles and debris, neglecting other potential losses. This oversight became particularly relevant in 1986 when the NASA Space Shuttle Challenger exploded seventy-three seconds after launching. [9] The Challenger disaster brought to the surface the importance of defining laws addressing harm to individuals in space. One can find liability precedent in air through U.S. aviation laws to examine what legal liability could look like in space. In Boyle v. United Technologies Corporation (1988), Sikorsky, a helicopter manufacturer, faced a civil action following the death of a marine helicopter pilot operating a Sikorsky aircraft. The Court of Appeals ruled that Sikorsky could not be held liable for design faults under Virginia tort law because the company met the necessary requisites for the military contractor defense. This case illuminated this defense and in a five-to-four decision, the Supreme Court invalidated state tort laws that held independent military contractors liable for injuries resulting from design flaws. The Court affirmed that even though there is no legislation explicitly immunizing government contractors from liability related to design flaws, the acquisition of military equipment by the U.S. government is a “unique federal concern.” [10]
In Boyle, the Court invalidated state tort laws that held independent military contractors liable for injuries resulting from design flaws. The Court asserted that because the equipment met previous requirements set by the federal government, no defect could be considered ample enough to hold the manufacturer liable. [11] Boyle could help define key legal questions regarding space torts such as which entity bears liability when commercial enterprises are involved. The Boyle decision suggests that courts may rule in future cases that private companies will be similarly immune to liability as a result of meeting federal requirements. In the Challenger disaster, the families of the astronauts were able to receive millions of dollars in settlements from the company that manufactured the defective rocket boosters that were responsible for the mission’s failure. After Boyle, lawsuits against private contractors became far more difficult to win because the manufacturers could not be held liable as long as their design plans were approved by the government. [12] For example, in 2003, the Space Shuttle Columbia collapsed as it re-entered Earth’s atmosphere, killing all seven astronauts aboard. [13] The families of these astronauts could have sued the private contractors, but chose not to, because the precedent established in Boyle gave them slim odds of winning. [14] The Columbia tragedy additionally raised questions as to how space tort law would apply to international astronauts such as Colonel Illan Ramon, an Israeli astronaut aboard the Columbia.
Statutory negligence would have a particularly relevant application to space torts when addressing damage caused by space debris. In Martin v. Herzog (1920), the justice held that upon a driver failing to turn on his headlights when driving at night, a statute intended to protect the safety of civilians, the courts will find negligence per se or “negligence in itself,” meaning a defendant in violation of a statute without an excuse will be found to be negligent. [15] This form of liability has specific applicability to potential space law cases. Also known as statutory negligence, negligence per se can result from a lack of adherence to legal regulations, and has been applied to aviation torts such as Wojciechowicz v. United States (2008), in which the U.S. District Court for the District of Puerto Rico ruled that Alexander Wojciechowicz, the owner of an entity that was implicated in an airplane crash, had been statutorily negligent. [16] Statutory negligence could similarly apply to space torts. Article VI of the UN 1975 Convention on Registration of Objects Launched into Outer Space (“Registration Convention”) requires states to register launched space vehicles with the UN and asserts that third parties must track their registered space objects, acknowledging that these could harm both animate and inanimate objects. Article VI of the Registration Convention could be used as a statute to argue statutory negligence, as individuals could claim statutory negligence for collisions involving unregistered debris. [17]
Nuisance could similarly be applied to space torts to address damage caused by space debris and other man-made objects. Since nuisance has previously been applied to harm caused by aircraft due to airport debris and dust, it would likely have similar applicability to space torts. Nuisance, which is defined as a defendant “substantially and unreasonably interfering with the enjoyment or use of a plaintiff’s land or property,” can also be committed through “abnormally dangerous activity.” [18] The Restatement of Torts defines nuisances as those that “are not of common usage” and “create a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors.” [19] For nuisance to apply to damage caused by space debris, the plaintiff would have had to establish their property rights, which could exist for objects in geosynchronous orbit (GEO), a low, prograde orbit about Earth governed by the International Telecommunication Union. Although GEO property rights are not mentioned in UN treaties, these rights could be applicable and subsequently, nuisance claims could be applied. The space debris issue is frequently looked at as a tragedy of the commons problem, in which free riders pollute space rather than preserving its value. Assigning property to particular nations could be an adequate remedy and allow for the enforcement of tort laws in space.
In a reality where societal potential is no longer confined to planet Earth, it is important to consider whether existing legal frameworks of space governance will be sufficient to regulate interplanetary activities. Governing bodies for space pursuits are largely non-binding, unenforceable, and ambiguous. To create an environment hospitable for private space ventures, space-faring nations must create and codify tort laws specific to space, which would then be upheld by the UN Security Council. It is of utmost importance to govern in a way that improves accountability, peace, and security in space overall. It is no longer appropriate to treat space law as science fiction illustrative of the future—space exploration is here to stay. Nations must rise to the challenge of establishing standards for space governance that improve accountability, peace, and security in the cosmos.
Edited by Shreya Shivakumar
Sources:
[1] “Space Law Treaties and Principles,” United Nations, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html.
[2] “United Nations Convention on the Law of the Sea,” opened for signature December 10, 1982, United Nations Treaty Series Online, registration no. I-31363, https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.
[3] Sam Bateman, “UNCLOS and Its Limitations as the Foundation for a Regional Maritime Security Regime,” Korean Journal of Defense Analysis 19, no. 3 (2007): 1.
[4] “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” opened for signature January 27, 1967, Space Law Treaties and Principles, registration no. I-8843, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html.
[5] Kaplan, “Space-Specific Remedies,” 1153.
[6] U.S. Congress, House, Commercial Space Launch Act, HR 3942, 98th Cong. (1984), https://www.congress.gov/bill/98th-congress/house-bill/3942.
[7] Casey Gerry Schenk Francavilla Blatt and Penfield LLP, “Federal, State And International Aviation Laws: What You Need to Know,” CaseyGerry, March 6, 2018, https://caseygerry.com/federal-state-and-international-aviation-laws-what-you-need-to-know/.
[8] “Space Law Treaties and Principles,” United Nations, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html.
[9] The Editors of Encyclopedia Britannica, “Challenger Disaster,” Britannica, August 21, 2022, https://www.britannica.com/event/Challenger-disaster.
[10] Boyle v. United Technologies Corp., 487 U.S. 500 (1988).
[11] Boyle v. United Technologies Corp., 487 U.S. 500 (1988).
[12] Adam Liptak, “LOSS OF THE SHUTTLE: THE COURTS; No Legal Precedent is Seen Should Columbia Families Choose to Sue,” New York Times, February 6, 2003, https://www.nytimes.com/2003/02/06/us/loss-shuttle-courts-no-legal-precedent-seen-should-columbia-families-choose-sue.html.
[13] Daisy Dobrijevic and Elizabeth Howell, “Columbia Disaster: What Happened, What NASA Learned,” Space.com, October 26, 2021, https://www.space.com/19436-columbia-disaster.html.
[14] The Associated Press, “$26.6 million paid to Columbia families,” NBC, April 16, 2007, https://www.nbcnews.com/id/wbna18136153.
[15] Martin v. Herzog, 126 N.E. 814, 815 (N.Y. 1920).; “Negligence per se,” Cornell Legal Information Institute, June 2022, https://www.law.cornell.edu/wex/negligence_per_se.
[16] Luke Punnakanta, “Space Torts: Applying Nuisance and Negligence to Orbital Debris,” Southern California Law Review 86, no. 163 (2012): 180.; Wojciechowicz v. U.S., 582 F.3d 57 (1st Cir. 2009).
[17] Punnakanta, “Space Torts,” 176; “Convention on Registration of Objects Launched Into Outer Space,” opened for signature January 14, 1975, Space Law Treaties and Principles, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/registration-convention.html.
[18] “Abnormally dangerous activity,” Cornell Legal Information Institute, June 2022, https://www.law.cornell.edu/wex/abnormally_dangerous_activity.
[19] “Abnormally dangerous activity.”