As Humanity Heads for the “Final Frontier,” the Law Struggles to Keep Up | Levin Papantonio - Personal Injury Lawyers

As Humanity Heads for the “Final Frontier,” the Law Struggles to Keep Up

Impatient with the slow pace of existing, government-sanctioned space exploration and eager to exploit the commercial potential of outer space, private companies are leading a new rush toward what late Star Trek creator Gene Roddenberry dubbed “the Final Frontier.”

A few of them have launched rockets, including Tesla founder Elon Musk's SpaceX, Armadillo Aerospace, and most recently a Silicon Valley start-up known as Swarm Technology. The latter drew accusations from the FCC earlier this year when it launched its own rocket from a site in India, carrying a number of “rogue satellites” – after it had been denied authorization to launch experimental satellites from the US because of safety concerns.

All of this raises the serious questions of how the budding private space industry is being regulated – and who bears liability when things go wrong.

The legal framework that largely governs space exploration today consists of a series of international treaties, most of which were signed almost fifty years ago. The first of these was the Outer Space Treaty of 1967, then signed by the US, Soviet Union, and the UK. It established the principle that exploration and use of outer space would be free and for the benefit of all nations, that no extra-terrestrial body (such as the Moon) could be claimed by any sovereign government – and that the Moon and other planets would be used only for peaceful purposes.

There are also three elements of the treaty that are of particular significance in light of current developments: Nation-states “...shall be responsible for national space activities whether carried out by governmental or non-governmental entities” [emphasis added]...liable for damage caused by their space objects,” and “shall avoid harmful contamination of space and celestial bodies.”

Nobody foresaw a day when private corporations would be launching their own space vehicles for deploying satellites, carrying out asteroid mining operations, and even ferrying passengers to off-world resorts.

Australian law professor Steven Freeland of Western Sydney University has been studying the legal ramifications of private space exploration for twenty years. Last year, he posed an interesting question: what if a murder was committed aboard the International Space Station? Who would have jurisdiction, and how would such a crime be prosecuted? Freeland points out that “Space is a unique thing from a legal characterization.” Indeed it is: questions of who is responsible for “space junk” – particularly if it falls to earth and causes loss of life and/or property damage – and even the legal definition of where the atmosphere ends and outer space begins have yet to be determined.

Current international law holds the government of each nation responsible for the behavior and actions of private companies domiciled within their borders when their outer space activities result in injuries or property damage. This also includes requiring such companies to have licenses. In some cases, a company planning to engage in space exploration and commercialization may be required to sign an agreement indemnifying the government and relieving it of liability in the case of an accident.

The recent launch in India by Swarm Technologies has created a conundrum in this respect. On one hand, the launch was unauthorized under U.S. law, since the company is domiciled in California. This means that the U.S. government could hold Swarm liable should one of its satellites cause harm. On the other hand, the launch took place on foreign soil, and its payload included satellites made by companies in two other countries (Canada and the UK). This means that the US government could be held liable under international law.

Between liability, criminal law, and regulating the militarization of outer space, the entrance of private enterprise into the Space Race promises to open up a legal can of worms, leaving legislators struggling to keep pace. Lawmakers' actions – or lack thereof – in the near future will have profound implications as humanity leaves home and spreads into the cosmos.

The history of western settlement in North America during the 19th Century could serve as a guide. In the US, settlement and commercial exploitation of western regions took place with very little in the way of regulation. Law and order was non-existent when white settlers and mining and railroad operations expanded into those territories. Eventually, the federal government deployed law enforcement officers to keep order in the new settlements, but this was an afterthought.

In contrast, the Canadian government was careful to establish the presence of the Northwest Mounted Police well ahead of the arrival of settlers – meaning that early Canadian settlers enjoyed the protection of law enforcement from the beginning.

Now, consider the stark differences between Canadian and U.S. societies today, particularly in terms of violence and crime. Which path will we take as humans move into outer space and establish colonies in orbit and on other planets?