Lawyers in Space

If an astronaut is murdered in the International Space Station, where does the

killer stand trial?
BY BENJAMIN SOLOWAY
| APRIL 15, 2015, 6:00 PM
The socks of former NASA Astronaut and Apollo 11 pilot Buzz Aldrin feature illustrations
of planets as he testifies on space exploration during the US Senate Commerce,
Science and Transportation's Subcommittee on Space, Science and Competiveness
hearing on Capitol Hill in Washington, DC, February 24, 2015. AFP PHOTO / SAUL
LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)

On Monday, in the U.N.’s Vienna office, an obscure subcommittee convened

with little fanfare, far from the hubbub of Turtle Bay. Don’t be fooled by the
subdued arrangements: Members of this subcommittee will spend the next
two weeks weighing in on questions central to humankind’s future on Earth —
and beyond. The U.N. Office for Outer Space Affairs (UNOOSA) Legal
Subcommittee, meeting currently for the 54th time, is the primary
international forum responsible for developing guidelines and laws for human
activity in space. This group works on the legal problems that arise as
companies, nations, and international bodies expand their presence beyond
the planet. Some of these questions are both thorny and profound: On the
agendafor this session, for instance? “Matters relating to the definition and
delimitation of outer space.”

The committee is going boldly where few lawyers have gone before — but
where more and more are headed, as human space exploration becomes
increasingly democratized and commercialized. Monday’s symposium on
“space traffic management” — this session’s first major conversation,
following opening remarks in a fourth-floor boardroom —
included presentations by experts from the Beijing Institute of Technology, the
Netherlands-based International Association for the Advancement of Space
Safety, the U.N. International Communication Union, and the U.S. Embry-
Riddle Aeronautical University, among others. The subcommittee,
representing 76 UNOOSA member states and chaired by European Space
Agency Policy Department head Kai-Uwe Schrogl of Germany, regularly
invites leaders in related fields to give presentations or participate as
observers.

Space programs around the world have a long history of productive

cooperation. But issues fundamental to uncharted elements of human space
exploration, such as regulations on space mining and space garbage cleanup,
remain on shaky legal footing, as practitioners of the burgeoning field of space
law struggle to sort through an uncharted landscape potholed with knowledge
gaps and new territory. Should missions to asteroids serve science and the
common good, or mining companies, or some combination thereof? Questions
like these, in a matter of decades, have gone from thought exercises to legal
work.
The international community took its first stabs at putting space under legal
jurisdiction during the 1960s and 1970s, beginning with bilateral talks
between the United States and the Soviet Union in 1958, shortly after the
launch of the first Sputnik satellite. Held mostly in letters between then U.S.
President Dwight D. Eisenhower and then Soviet Premier Nikita Khrushchev,
these early conversations ended in impasse: The Soviet Union was confident
of its technological superiority at the time and saw no reason to join with the
United States in regulating space, thereby abdicating a perceived advantage in
that arena. By 1959, the U.N. had created the Committee on the Peaceful Uses
of Outer Space and the international community began to move beyond the
space age’s brief but disquieting unregulated period. The committee’s
attempts at a legal framework led to a cluster of international treaties, which
established a basis for the somewhat amorphous set of international
agreements and domestic regulations that comprise space law today.

The four widely ratified foundational treaties were sweeping in scope: They
established space, including celestial bodies, as part of a shared human
heritage, not to be claimed or weaponized by any state. Other provisions
established freedom of exploration; the obligation to rescue astronauts in
distress, should the need arise; nations agreed to carry full legal responsibility
for any object launched within national borders; and an international registry
was created to monitor all man-made objects in space.

As the treaties slowly came into law, human space exploration continued to
advance. Between 1961 and 1972, NASA’s Apollo program sent six manned
missions to the moon. A fifth treaty in 1979 attempted to lay the groundwork
for international jurisdiction on the moon and other celestial bodies, as it
became increasingly apparent that nations would not have equal access to
potential space resources in a post-Apollo world. The attempt largely failed.
No nation with a major space program ratified — a foreshadowing of legal
challenges that would arise when space exploration first began taking a
commercial turn.

The treaties created an international architecture for humankind’s budding

off-world forays, but decades later, major questions still remain unanswered.
For instance: “There is no agreed upon definition for where space begins,” said
Henry R. Hertzfeld, a space policy expert at George Washington University’s
Elliott School of International Affairs and private sector advisor to the U.S.
delegation in Vienna. Hence the subcommittee, and its unsexy but
increasingly important work.
The era of the International Space Station poses legal challenges the Apollo
astronauts could scarcely have imagined: Whereas space travel began in a
world in which each national space program ran its own missions, manned
space missions today are more likely to involve intricate minute-to-minute
international cooperation predicated on a dizzying mesh of regulatory
arrangements at the intersection of domestic and international legal systems.

The ISS — the largest, most expensive, and most complex project completed in
space — is at the heart of legal uncertainties that characterize all space
ventures. Constructed beginning in 1998 in a cooperative effort by Canada, the
European Space Agency, Japan, Russia, and the United States, astronauts
representing 15 countries have served on it since 2000. This unique
collaboration has posed unusual legal questions, both immediate and
hypothetical.

NASA Astronaut Scott Kelly and Russian cosmonauts Mikhail Kornienko and
Gennady Padalka arrived last month at the ISS after a successful launch from
the Baikonur Cosmodrome in Kazakhstan. Their flight aboard a Russian Soyuz
spacecraft was quicker than a commercial hop from New York to London, but
their mission will last longer than any other in the history of NASA: Kelly and
Kornienko will remain in space for a year — part of an effort to study the
medical, psychological, and biomedical challenges posed by long-duration
spaceflight.

So far, cooperation aboard the ISS — between astronauts and between partner
states — has been smooth. But space crime won’t remain a hypothetical
forever. Nations participating in the ISS project are expected to extend their
national jurisdictions to the space station components they contributed. For
instance: A crime committed in a module built in Japan would be tried in
Japan; a crime committed in module built by the United States would be tried
in the United States.

A crime committed in a module built in

Japan would be tried in Japan; a crime
committed in module built by the United
States would be tried in the United States.
Under this understanding, astronauts routinely cross national borders
projected into space in the course of their work. And the jurisdiction
laws apply beyond criminal matters: liability and intellectual property
also come into play. Under U.S. law, any intellectual property invented
 in a station module built by the United States is subject to U.S. patent
law. Other states have followed this precept, even without specific laws
on the books. But scholars have pointed out that significant problems
remain unaddressed. “Consider the scenario where an experimental
payload, specifically identified as a Japanese experiment… is
permanently moved from the Japanese Experiment Module to the U.S.
Lab,” Theodore Ro, Matthew Kleiman, and Kurt Hammerle wrote in
an article published by the Journal of Science and Technology Law in
2011. “If the payload reads on the claims of a U.S. patent, the patent
owner may be able to sue the Japanese payload owner for
infringement,” arguing that the action constituted the illegal
importation of a patented invention.
TRENDING

1. 1
Trump Is Ending One Gulf Conflict to Start Another 200 SHARES
2. 2
This Land Is Our Land 71 SHARES
3. 3
Don’t Blame Amber Rudd for Britain’s Racist Immigration
System 115 SHARES
4. 4
Europe Has No Clue How to Handle an American
Bully 602 SHARES
5. 5
The Right to Kill 944 SHARES
6. 6
Italy Is Safe From, and for, Jihadis 2 SHARES
7. 7
The Unbearable Complacency of Angela Merkel 331 SHARES
8. 8
China Threatens U.S. Airlines Over Taiwan
References 1792 SHARES
9. 9
Royal Weddings Are a Fairy Tale. They Used to Be High-
Stakes Diplomacy. 242 SHARES
10. 10
How the UAE’s Chinese-Made Drone Is Changing the War in
Yemen 1433 SHARES
Some jurisdictional projections have posed unintended problems. Spacefaring
nations continue to own their decommissioned satellites — a hurdle in the
effort to clean up space debris. Each individual object in space, even a small
satellite fragment, would require identification and permission from its
country of origin prior to any attempt at disposal.

In recent years, the space law community has faced new challenges wrapped
up in the emergent commercialization of space enterprise. While outer space
exploration remains very much a government game, the potential for
commercial space tourism and space resource exploitation looms ever larger;
lawyers may strain to cram these endeavors within the confines of old treaties
written with different sorts of space initiatives in mind.

Several companies have put forward proposals for asteroid or moon mining,
although the legality of laying claim to asteroid resources remains a murky
matter. “The law on this is not settled and not clear,” Hertzfeld told
LiveScience in 2012. “There are lots of opinions on the status here, and
nobody is necessarily right because it’s complicated.” The U.S. legal
position has been that any nation that finds resources in space should be able
to mine them. Some experts have argued the mining on the moon would be
legal, but that mining companies would not own the resources they extracted.

Not every industry trying to make money in space is going after tourism or
mineral resources. Space tourism company Virgin Galactic turned down a $1
million offer to partner with a pornographic film seeking to shoot in zero
gravity — a mere prelude to the uses of space for profit and entertainment that
privatization might eventually allow.

Space law offers more questions than answers — a reasonable state of affairs
for the legal field in an arena that humans have only just begun to explore. As
Kelly and Kornienko continue to settle in for their long stay on the ISS, the
legal subcommittee in Vienna will continue to ask those questions — though
the answers may be slow in coming.