Effective Exercise of ‘In-Space Jurisdiction’: The US Approach and the Problems It Is Facing

Authors

Frans G. von der Dunk, University of Nebraska-LincolnFollow

Date of this Version

2015

Citation

Journal of Space Law 40:1–2 (2015–2016), pp. 147–185.

Comments

Copyright © 2015 Frans G. von der Dunk. Used by permission.

Abstract

As mankind moves closer to the fiftieth anniversary of the conclusion of the Outer Space Treaty, the framework international treaty laying down the baseline regime for space activities, it may be considered a major achievement that the treaty, as well as some of its offspring—notably the Rescue Agreement, Liability Convention, and Registration Convention—seem to be as relevant as ever. This is a major feat in an international era of many fundamental changes in the geopolitical, economic, and social context.

Nevertheless, the increasing involvement of private entities in many fields of space activity beyond the (by now) more “traditional” ones of satellite communications and to lesser extents launching and satellite remote sensing, has given rise to many new legal issues, even questions about the continuing validity and appropriateness of the broad regime resulting from the above-mentioned treaties. Nowhere is this probably more true than in the case of the United States, the world’s leading space-faring nation in particular also in the context of extended private participation in activities in outer space.

In the United States, various serious commercial enterprises are eying the possibilities of exploiting the mineral resources of asteroids or other celestial bodies. Also in the United States, the various companies that are close to selling tickets to outer space to the rich, famous, and a few others are converging—even if Richard Branson’s Virgin Galactic originally was a British company, and SXC, planning to launch from the Dutch Caribbean island of Curacao, was a Dutch company before its merger with XCOR. Except for satellite communications and a few isolated examples in launching and remote sensing operations, all private operators with advanced plans for, or actually ongoing, space operations are US or US-led companies.

This also means that the development of legal tools within the United States to properly handle such new private endeavors should be of great interest to the rest of the world as well. Indeed, various non-US countries and other interested parties in this realm are closely following the developments within the United States in this regard.

One important aspect thereof concerns the use of national legislative and regulatory instruments to address international responsibility and liability of the United States under the treaties for the activities of such private entities in outer space or in an outer-space-context, further to Articles VI and VII of the Outer Space Treaty.

At the same time, the United States turns out to present a rather unusual picture from the perspective of domestic implementation of international obligations under the space treaties and domestically specifying the agencies exercising jurisdiction for the purpose. It does not have a single national framework space act from which all further detailed regulations follow (which is essentially what all other countries with dedicated national space laws have availed themselves of), but a set of separate, to some extent even disparate national acts handling different aspects and elements. While historically understandable, and so far not having raised major legal problems, this is rapidly changing now under the pressure of such new developments as sketched above.

For that reason, this article addresses the US approach to handling its international obligations under the space treaties specifically vis-à-vis private actors, the issues arising from that approach and the discussions currently gearing up to try and handle those issues more profoundly, comprehensively and, in a sense, logically. In short: how does and should, the United States arrange for the exercise of domestic jurisdiction over any relevant space or space-related operations by private actors, in line with applicable international law and, more precisely, in line with relevant clauses of the Outer Space Treaty and the Registration Convention.