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Thursday, April 29, 2004

Column: Beam Me Up, Counselor

On January 15, 2004, President Bush unveiled his “New Space Exploration Vision.” Under the President’s plan, American astronauts could be planting the flag on the Moon by 2015, and on Mars after that.

All I can say is: they’d better bring lawyers with them.

For starters, the astronauts could be slapped with a trespassing suit by a Nevada businessman who claims to have valid title to both the Moon and Mars. Welcome to the world of Space Law.

Space Law: The Final Frontier

Space law deals with human activities in outer space. Most issues in space law come under the jurisdiction of the United Nations. The rest, of course, is controlled by the Klingon Empire. Actually, the rest of space law is a hodgepodge of bilateral agreements, national law, and certain “norms” of questionable weight.

Space law presents a great opportunity to the legal linguist because, as a relatively new field, the meanings of some of its key terms are still being worked out. Take space, for example. Clearly, at some point up there, the earth ends and space begins. But where? Experts disagree. Is it where the earth’s atmosphere peters out, somewhere around 80 km up? Or is it the lowest point where a craft can achieve orbit, about 100 km up, or is it – well, you get the picture.

So far, this lack of a definition has not caused any practical problems. But that may just be dumb luck, because defining the boundary of “space” has real implications for tort law. There is a completely different liability regime for accidents caused by aircraft versus those caused by spacecraft (which go by the dreary name of space objects in space law). For the latter, there is – I’m not making this up – the International Convention on Liability for Damage Caused by Space Objects.

Under the Liability Convention, if a space object collides with an aircraft, the country that launched the space object faces absolute liability, but if a space object collides with another space object, it’s fault liability. Thus, in the event of a mid-space collision, astronauts are advised to exchange insurance information and just continue on their way.

Sovereignty is a big problem in space. A country remains sovereign over its adjacent airspace – but how far up does that airspace go? In the 1976 Bogotá Declaration, a number of developing countries asserted that their national territory extends all the way up to geostationary orbit, or about 40,000 km straight up. This is the orbit where a satellite always stays over the same spot on earth. It is a particularly valuable bit of real estate because that’s where communications satellites need to be.

Imagine – if countries owned their orbital space, then they could very well charge you enormous fees for the privilege of having your communication satellite hovering over their territory. Those cell phone calls would suddenly become a lot more expensive.

Property Rights in Space

But the Bogotá Declaration never went anywhere, because it was universally decried as a violation of the Outer Space Treaty of 1967.

The Outer Space Treaty, which has been ratified by 98 countries, including the US, is often called the Magna Carta of space law. The treaty prohibits any state from claiming sovereignty over any part of Outer Space, including the Moon and “other celestial bodies.”

Lest you be confused, celestial bodies is not a bit of cheesy copy from the latest Sports Illustrated swimsuit issue, but rather a recognized legal term. Alas, this is another phrase that has confounded space lawyers because it is not defined in any treaty or convention. Under the Outer Space Treaty, most lawyers interpret celestial bodies to mean all planets, natural satellites of planets, and to asteroids anywhere in the universe.

Some scholars, however, urge that the definition of celestial bodies ought to exclude any planet that is inhabited by intelligent beings. Assuming that there are intelligent aliens, the argument goes, it would be rude to foist the 1967 treaty on them.

More recently, overworked UN lawyers have limited the meaning of celestial bodies to those bodies found within our solar system – other systems would be covered later (one thing at a time, please!). The big losers in all this lawmaking, by the way, are comets and meteoroids, which don’t count as celestial bodies under anybody’s definition.

Martian Mortgages

Although the Outer Space Treaty prohibits nations from owning any celestial body, it doesn’t say anything about individuals or corporations.

That omission has created, well, a vacuum, into which a number of individuals have leapt. The most enterprising of these is Dennis Hope who in 1980 filed papers with the U.S. government and the United Nations laying claim to the Moon and all the planets of the solar system except Earth. His Nevada-based company, Lunar Embassy, has been selling off bits of the solar system to, er, optimistic, investors ever since.

Hope has a number of rivals in the celestial property game, including Martin Juergens, a German pensioner who claims that the moon has belonged to his family ever since Frederick the Great of Prussia granted it to one of his ancestors in 1756.

In an effort to forestall such entrepreneurial activities, the UN Committee on the Peaceful Uses of Outer Space came up with the so-called Moon Treaty of 1979, which prohibits governments and private parties from gaining property rights in the surface or subsurface resources of the Moon and the other celestial bodies.

The rationale of the Moon Treaty, borrowed from the Law of Sea Treaty, is that the Moon and planets are the “common heritage of mankind,” and thus cannot be claimed as private property.

Most of the developed countries felt that the Moon Treaty went a tad too far. After all, if you take the trouble of actually going to Mars, shouldn’t you at least be able to buy a souvenir rock? More seriously, perhaps, a number of space scientists see the potential for lucrative mining operations on various planets and asteroids, and that’s a hard thing for any politician to sign away. Only ten countries have ratified the Moon Treaty, and not one of those has a serious space program.

Resolving disputes

Next to cosmic radiation, litigation is one of great hazards of space travel. Consider the International Space Station in which astronauts spend up to six months in submarine-like conditions. That place is a tort, or even a crime, just waiting to happen (“Hey that’s my bottle of Tang!”)

In the event of a dispute, lawyers would probably apply the law of the flag from maritime law; that is, the flag of the vessel governs torts and crimes committed on the high seas. But the Space Station does not have one flag; rather, it is composed of “modules” from different countries.

So, if an American astronaut and a Russian cosmonaut get into a fight while in a European Union module, then EU law would govern. Since the EU doesn’t have criminal or tort law, one would have to decide which of the EU’s 25 member states (as of 2004) should supply the governing law. Nothing simpler, really.

And then there are those rovers – Spirit and Opportunity – scurrying about the surface of Mars. What if they had a fender bender? There is no Liability Convention to govern accidents on another planet. Those rovers would have to be subject to local law.

The only problem, of course, is that there is no Martian law. As far as we know.

(This column originally appeared in the April 2004 issue of New York Law Journal Magazine).