A Blank Space in Legal Jurisdiction: Are Profit-Driven Space Companies Liable for Violations of Inte

On January 16th, 2018, Administrator of the Ship-Source Oil Pollution Fund v. Beasse held that the defendant and owner of an American-registered tugboat was responsible for clean-up costs related to an oil spill, despite the incident having occurred in Canadian waters.[1] The sunken tugboat was lifted by the Canadian Coast Guard (CCG), which had been patrolling the area. Although the defendant attempted to stop the CCG from extracting the tugboat, there was neither action taken by the defendant nor the owner of the company to assist in the cleanup. The court ruling in this dispute rejected the defendant’s claim that evidence of third-party tampering, in addition to the incident having occurred in Canadian waters, should relieve the defendant of culpability and responsibility for cleanup —thus mandating a payout to the Canadian Ship-Source Oil Pollution Fund.[2] A lack of international boundaries and regulations in the ocean leaves culpability in cases like this up in the air for after all, in the open ocean, borders cannot be not easily drawn or mandated.

In the modern age of exploration, technological advancements have allowed us to venture beyond the ocean into a new foreign territory without borders: space. With the rise of both scientific knowledge and federal initiatives in space, more profit-seeking corporations are venturing into space in the interests of tourism and energy production. As a result, the field of space law is steadily emerging within academia, utilizing legal precedent from international disputes to carve its future.

One major concern for astronomers is the environmental impact of space exploration. A recent launch by SpaceX, a leading company in this field, was quickly surrounded by controversy. The Tesla Roadster currently soaring in our galaxy may collide with Earth or Venus in the next ten million years, according to a new study,[3] but this is the least problematic concern. There is currently a website which exhibits the tracking technology and models used to predict the Tesla’s location—resembling technology used to study asteroids that fly close to earth. Like an asteroid or other space debris, the Tesla Roadster’s orbit is affected by the gravitational pull of other celestial objects, such as Mars, Earth (and its moon), and the Sun. The following hypothetical ensues: if the Tesla collides with a solid carbon asteroid pulled into its orbit by a gravitational force, the impact would result in the emergence of space dust particles (and perhaps, boulders) left to orbit relatively near the Earth.[4] Similar collisions can occur between Tesla-like launches and the satellites that orbit Earth. The results of such explosions can have disastrous environmental effects on Earth’s atmosphere, depending on their proximity to the Earth’s surface. In the immediate future, increased space debris resulting from satellites and rocket launches such as the Tesla Roadster would exacerbate the crowding of Earth’s orbit. Therefore, these rocket-satellite-debris interactions “are an emerging problem that can be further complicated by the regular precession of Earth’s rotational axis and…the preferred orbital plane into which spacecraft are maneuvered”.[5]

SpaceX's precedent, coupled with the current lack of international oversight, pinpoints a significant problem permeating the newfound increase of private rocket launches. A dangerous question arises: what limits should be placed on a private space company in regards to space exploration and extraction? What are the mechanisms in place for monitoring environmental issues, such as orbital crowding, as well as territorial boundaries? The General Assembly resolution of 1962 accepted a “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space,” which outlined several key components of modern space law. The most relevant of these are as follows:

1. The exploration and use of outer space shall be carried on for the benefit and in the interests of all mankind.

2. Outer space and celestial bodies are free for exploration and use by all States on a basis of equality and in accordance with international law.

3. Outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

4. The activities of States in the exploration and use of outer space shall be carried on in accordance with international law in the interest of maintaining international peace and security and promoting international cooperation and understanding.

5. States bear international responsibility for national activities in outer space, whether carried on by governmental agencies or by non-governmental entities. The activities of non-governmental entities in outer space shall require authorization and continuing supervision by the State concerned.

Following this inaugural Declaration, a “Liability Convention” of 1972 [6] in addition to the “Nuclear Power Source Principles” of 1992 were both adopted to address the issue of legal disputes and liability for interstellar liabilities. These new agreements held that states from which the source of said damage originated would be liable for compensation toward search, recovery, and cleanup operations conducted by the affected party.[7] However, a lasting tension exists between this principle and third and fourth tenets of the 1962 Declaration: If space activity is regulated by international law (principle 4, above), yet space territory is not subject to national sovereignty, how can international territory law govern space disputes?

In the hypothetical case of SpaceX, should space debris resulting from a Tesla collision affect an application experiment within Earth’s orbit conducted by China’s Tiangong 2 Space Laboratory module,[8] how should a court assign liability? The Declaration of Principles stipulates that countries may not exercise sovereignty over celestial bodies, similar to the Earthly principle of international waters. Although the area outside of China’s Space Lab cannot legally belong to China, the state would still have recourse against the American company within a dispute. Assuming Tiangong 2’s abidance of first Legal Principle, the concept of universal jurisdiction may be invoked. Universal jurisdiction refers to the notion that a national court may prosecute individuals (or corporations) for violations of international law, particularly when traditional grounds for criminal jurisdiction fall short [9] —such as space cases lacking national sovereignty. While the context for usage varies, the spirit of the law addresses crimes against the international community; damages to an institution operating within the bounds of international law and serving the greater human interest may be recognized as these crimes.

A curious application of this extra-national universal jurisdiction can be found in the Spanish trial of Argentinian Adolfo Scilingo of 2005. Sentenced to 640 years in prison, Scilingo later faced an increased sentence of 1084 years, due to his “crimes against humanity according to international law, as established by the Supreme Court.[10] Although Scilingo was not a Spanish citizen, this decision marked the first instance of a crime against humanity could be tried in Spain regardless of it having been committed outside of Spanish territory. Numerous cases followed, resulting in the Spanish government restricting its courts’ ability to adjudicate international issues by narrowing their jurisdiction to cases “not already before another competent jurisdiction and that involve Spanish victims, perpetrators located in Spain, or that affect Spanish interests.”[11] In the hypothetical issue between (American) SpaceX and China, the Chinese Judicial System could invoke the Spanish precedent of universal jurisdiction, within the new limitations, to prosecute Elon Musk for his company’s infringement of China’s ability to conduct research in their public interest.

To this day, space remains a vast, unexplored entity, scary yet fascinating to the human eye: a dark unknown realm where, supposedly, there is no clear answer of who creates laws and who must obey them. At least on Earth, international treaties and principles are beginning to answer this question, creating new possibilities for laws in space. Moreover, space consciousness and awareness continue to grow in the public eye, increasing the desire for discovery. While space law remains a narrow field, limited to few enforceable policies and agreements, the growing precedents determined by maritime disputes and other international conflicts may set the stage for future regulation.

[1] "Canada (Ship-source Oil Pollution Fund) v. Beasse, 2018 FC 39 (CanLII)," CanLII - 2018 FC 39 (CanLII), https://www.canlii.org/en/ca/fct/doc/2018/2018fc39/2018fc39.html.

[2] Ibid.

[3] Andrew Griffin. "Tesla car shot into space by Elon Musk's SpaceX could collide with Earth – but not for tens of millions of years." The Independent. February 19, 2018. http://www.independent.co.uk/life-style/gadgets-and-tech/news/spacex-launch-tesla-elon-musk-space-car-orbit-earth-mars-venus-crash-asteroid-a8218081.html.

[4] Brian Dunbar. "NASA's Swift and Hubble Probe Asteroid Collision Debris." NASA. July 06, 2015. https://www.nasa.gov/topics/universe/features/asteroid-collision.html.

[5] "Environmental failures." Space Systems Failures Springer Praxis Books: 265-84. doi:10.1007/978-0-387-27961-9_13.

[6] "United Nations Office for Outer Space Affairs," Liability Convention, http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/liability-convention.html.

[7] Ibid.

[8] "Tiangong 2." China Space Report. April 28, 2017. https://chinaspacereport.com/spacecraft/tiangong2/.

[9] "Universal Jurisdiction." International Justice Resource Center. February 03, 2017. http://www.ijrcenter.org/cases-before-national-courts/domestic-exercise-of-universal-jurisdiction/.

[10] "Adolfo Scilingo." TRIAL. https://trialinternational.org/latest-post/adolfo-scilingo/.

[11] http://www.ijrcenter.org/cases-before-national-courts/domestic-exercise-of-universal-jurisdiction/#Prominent_Cases_Involving_Universal_Jurisdiction.