Space Stations and the Law: Selected Legal

Issues

August 1986

NTIS order #PB87-118220
Recommended Citation:

U.S. Congress, Office of Technology Assessment, Space Stations and the Law:

Selected Legal Issues–Background Paper, OTA-BP-ISC-41 (Washington, DC: U.S.

Government Printing Office, August 1986).

Library of Congress Catalog Card Number 86-600569

For sale by the Superintendent of Documents

U.S. Government Printing Office, Washington, DC 20402
PREFACE

Multinational space station activities will raise fundamental legal

issues. The laws we take for granted on Earth--e.g. , those that regulate

commerce, property, criminal activity, and personal interactions--may not be

available in space or may conflict with similar laws held by other nations.

This background paper analyzes some of the legal consequences of developing

and operating an international space station. It describes the different ways

that an international space station might be owned and operated and explains

how each could affect the rights and responsibilities of the U.S. Government

and its citizens. The background paper gives special attention to the

application of jurisdiction, tort law, intellectual property law, and criminal

law to nations and individuals living and working in space. In addition to

these specific legal issues, the paper also examines the role of politics and

technology in legal decisionmaking, the usefulness of air law and maritime law

analogies, and the conflict between State and Federal law and jurisdiction

the United States.

This background paper was requested by the Senate Committee

Commerce, Science, and Transportation as a follow-on to the OTA assessments

Civilian Space Stations and the U.S. Future in Space which was published

in

on

of

in

1984, and International Cooperation and Competition in Civilian Space

Activities which was published in 1985. The original space station assessment

was requested by the Senate Committee on Commerce, Science, and Transportation

and the House Committee on Science and Technology, and was endorsed by the

House Committee on the Budget and the Senate Committee on Appropriations. The

report on cooperation and competition in space technology was requested by the

House Committee on Science and Technology and the Joint Economic Committee.

This report suggests that Congress need not wait for the completion of

the current governmental negotiations in order to begin an examination of the

legal issues resulting from space station development and operation. In the

near term, Congress could: 1) begin to identify those Federal and State laws

which already apply to space station activities and those that Congress

believes should apply; 2) begin to resolve questions of power sharing between

Federal and State laws and Federal and State courts as they relate to space

station activities; and 3) monitor the space station negotiations to ensure

that the final space station agreements protect the fundamental rights and

interests of U.S. citizens and support U.S. policies, including those related

to commercial activities in space.

OTA was assisted in the preparation of this background paper by many

outside advisors and reviewers, including international legal experts from the

U.S. Government, Europe, Canada, and Japan, as well as U.S. legal experts from

academia, industry, private practice, and the government. We express sincere

appreciation to each of these individuals and organizations. As with all OTA

reports, the content of this background paper is the sole responsibility of

the Office of Technology Assessment and does not necessarily represent the

views of outside advisors or reviewers.

,
Related OTA Reports

Civilian Space

●

●

●

●

●

International Cooperation and Competition in Civilian Space Activities.

OTA-ISC-239, June 1985. GPO stock #052-003-00958-7.

Civilian Space Stations and the U.S. Future in Space.

OTA-STI-241, November 1981. GPO stock #052-003-00969-2.

Civilian Space Policy and Applications.

OTA-STI-177, June 1982. NTIS order #PB 82-234444.

Radio frequency Use and Management: Impacts From the World Administration Radio Conference of 1979. OTA-CIT-163, January 1982. NTIS order #PB 82-177536.

Solar Power Satellite Systems and Issues.

OTA-E-144, August 1981. NTIS order #PB 82-108846.

Technical Memoranda

●

●

●

●

●

U.S.-Soviet Cooperation in Space.

OTA-TM-STI-27, July 1985. GPO stock #052-003-01004-6.

Remote Sensing and the Private Sector: Issues for Discussion.

OTA-TM-ISC-20, March 1984.- GPO stock #052-003-00945-5.

Salyut: Soviet Steps Toward Permanent Human Presence in Space.

OTA-TM-STI-14, December 1983. GPO stock #052 -003-00937-4.

UNISPACE ’82: A Context for international Cooperation and Competition.

OTA-TM-ISC-26, March 1983. GPO stock #052-003-00962-5.

Space Science Research in the United States.

OTA-TM-STI-19, September 1982. NTIS order #PB 83-166512.

Military Space

● Anti-Satellite Weapons, Countermeasures, and Arms Control.

OTA-ISC-281, September 1985. GPO stock #052-003-01009-7.

. Ballistic Missile Defense Technologies.

OTA-ISC-254, September 1985. GPO stock #052-003-01008-9.

● Arms Control in Space— Workshop Proceedings.

OTA-BP-ISC-28, Mary 1984. GPO stock #052-003-00952-8.

● Directed Energy Missile Defense in Space—Background Paper.

OTA-BP-ISC-26, April 1984. GPO stock #052-003-00948-0.

NOTE: Reports are available through the U.S. Government Printing Office, Superintendent of Documents, Washington, DC 20401

783-3238; and the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161, (703)487-4650.
OTA PROJECT STAFF ON SPACE STATIONS AND THE LAW

Lionel S. Johns, Assistant Director, OTA

Energy, Materials, and International Security Division

Peter Sharfman, International Security and Commerce Program Manager

Richard DalBello, Project Director

Administrative Staff

Jannie Coles, Cecile Parker, Jackie Robinson

v
ACKNOWLEDGMENTS

This project has benefited from the advice of many international and

domestic legal experts. OTA especially would like to thank the following

advisors and reviewers for their assistance and support. The views expressed

in this report, however, are the sole responsibility of the Office of

Technology Assessment.

Boyd W. Allen

U.S. Department of the Air Force

Ralph Braibanti

U.S. Department of State

Dennis James Burnett

Benner, Burnett, & Coleman

Dr. Anthony R. Cox

British Embassy

Thomas M. Culligan

McDonnell Douglas Astronautics

Professor Hamilton DeSaussure

University of Akron

Admiral James H. Doyle

Arthur M. Dula

Dula, Shields & Egbert

Bruce W. Ferguson

Orbital Sciences Corp.

Eilene Galloway

Int. Institute of Space Law

John Gantt

Hunton & Williams

Isaac T. Gillam

NASA

Dr. P. P. C. Haanappel

McGill University Law School

S. Neil Hosenball

University of Colorado

Kaname Ikeda

Embassy of Japan

vi

Paul Johnston

Canadian Ministry of State

Robert Kost

Office of Technology Assessment

Dr. Wulf von Kries

German Aerospace Research Est.

Ted Kronmiller

Patton, Boggs & Blow

Helen Kupperman

NASA

Gabriel Lafferranderie

European Space Agency

Dr. Louis Laidet

French Embassy

Dr. G. M. Lindberg

National Research Council (Canada)

Merritt Marquardt

3M Co.

Dr. Martin Mentor

Int. Institute of Space Law

Michael Michaud

U.S. Department of State

Gerald Mossinghoff

Pharmaceutical Manufacturers Assoc.

Peter Nesgos

Haight, Gardner, Poor & Havens

Dr. David B. Newman, Jr.

Dr. Irwin M. Pikus

National Science Foundation
Dr. Ian Pryke

European Space Agency

Russell J. Ramsland, Jr.

Microgravity Research Associates

Lt. Col. F. Kenneth Schwetje

U.S. Air Force

John Sedlins

Government Research Corp.

Bill Shea

Lockheed Missiles and Space Co.

Courtney A. Stadd

U.S. Department of Commerce

Professor Ralph Steinhardt

George Washington Law School

E. Jason Steptoe

U.S. Department of Transportation

Jeff Trauberman

Boeing Aerospace Co.

Dr. Ray A. Williamson

Office of Technology Assessment

Joy Yanagida

U.S. Department of State

Daniel Hill Zafren

Congressional Research Service

Michael W. Zehner

U.S. Department of the Air Force

Ton Zuijdwijk

Canadian Department of External Affairs

vii
SPACE STATIONS AND THE LAW WORKSHOP, May 2, 1986

Irwin M. Pikus, Chairman

Senior Staff Scientist, National Science Foundation

Ralph Braibanti

Office of Advanced Technology

U.S. Department of State

Dennis James Burnett

Benner, Burnett, & Coleman

Professor Hamilton DeSaussure

School of Law

University of Akron

Arthur M. Dula

Dula, Shields, Egbert

Bruce W. Ferguson

Senior Vice President

Orbital Sciences Corp.

Eilene Galloway

Honorary Director

International Institute of Space Law

John B. Gantt

Hunton & Williams

P. P. C. Haanappel

Associate Dean, Faculty of Law

McGill University

S. Neil Hosenball

Director

Center for Space Law & Policy

Kaname Ikeda

Science Counselor

Japanese Embassy

Dr. Wulf von Kries

Head, Washington Office

German Aerospace Research Est.

Ted Kronmiller

Patton, Boggs & Blow

Helen Kupperman

Office of the General Counsel

NASA

Gabriel Lafferranderie

Head, Legal Affairs

European Space Agency

Merritt R. Marquardt

Associate General Counsel

3M Co.

Russell J. Ramsland, Jr.

Executive Vice President

Microgravity Research Associates

Professor Ralph Steinhardt

George Washington University

Law School

E. Jason Steptoe

Office of the General Counsel

U.S. Department of Transportation

Ton Zuijdwijk

Canadian Department of External

Affairs

Paul Johnston

Canadian Ministry of State

for Science & Technology

Viii
I.

II.

III.

I.

II.

III.

IV.

v.

VI.

Executive Summary

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........3

PRINCIPAL FINDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ......5

CONCLUSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......11

Part I - Background Paper

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......15

A. Purpose and Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

B. Definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

OVERVIEW OF CURRENT LEGAL REGIME. . . . . . . . . . . . .0....... . . . . . . .......17

A. Treaties and International Agreements. . . . . . . . . . . . . . . . . . . . . . . .17

1) Legal Character of Outer Space. . . . . . . . . . . . . , . . . . . . . . . . , .18

2) Status of Private Sector Space Activities. . . . . . . . . . . . . . .19

3) State Responsibility for Actions in Space. . . . , . . . . . . , . . .20

4) State Liability for Actions in Space. . . . . . . . . . . . . . . . , . . .21

5) State Jurisdiction Over Space Objects. . . . . . . . . . . . . . . . . . .22

B. U.S. Space Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......23

JURISDICTION OVER SPACE STATION ACTIVITIES. . . . . . . . . . . . . . . . . . . . . ..,25

A. The Concept of Jurisdiction. . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . , . .25

B. Extent of National Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

c. Jurisdictional Alternatives for Governments, . . . . . . . . . . . . . . . . .30

1) U.S. Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . , . .30

2) Joint Jurisdiction. . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . , . . . .31

3) Jurisdiction over Independent Modules. . . . . . . . . . . . . . . . . . .32

4) Jurisdiction by International Organization. . . . . . . . . . . . . .32

INTELLECTUAL PROPERTY IN SPACE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......33

A. Patent Law Issues. . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

1) Intellectual Property Rights in

Government/Private Sector Space Activities. . . . . . . . . . . . . .33

2) U.S. Patent Law and Space Activities. . . . . . . . . . . . . . . . . . ..34

CRIMINAL LAW IN SPACE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....40

A. Jurisdiction and Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40

B. Ability To Enforce Criminal Laws. . . . . . . . . . . . . . , . . . . . . , . . . , . . .41

c. U.S. Criminal Law in Space.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . .42

TORT LAW IN SPACE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......44

A. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44

1) International Law, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......44

2) National Tort Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , .47

B. Future Developments. . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . .49

ix
Part II - Workshop Proceedings

I. CHALLENGES AND OPPORTUNITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......53

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53

B. Priorities in Decisionmaking. . . . . . . . . . . . . . . . . . . . . . . . . . .......54

c. Responsive v. Preventive Legislation. . . . . . . . . . . . . . . . . . .. .....55

1) The Arguments for Responsive Legislation. . . . . . . . . .......55

2) The Arguments for Preventive Legislation. . . . . . . . . . . .....56

D. The Utility of Analogies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58

II. ISSUES THAT REQUIRE IMMEDIATE ATTENTION. . . . . . . . . . . . . . . . . . . . . . . ....60

A. Jurisdiction and Choice of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60

1) Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,60

2) Choice of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62

B. Protection of Intellectual Property. . . . . . . . . . . . . . . . . . . . . . . . . .66

c. Consistency in the Legal Regime. , . . . . . . . . . . . . . . . . . . . . . . . . . . . .68

1) U.S. Law. . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . .68

2) International Law and Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . .69

111. FUTURE CONCERNS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......70

A. Product Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70

B. Export Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73

c. Civil Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., . . . . . . .74

IV. CONCLUSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......76
Executive Summary
I - INTRODUCTION

The United States, with the cooperation of the European Space Agency

(ESA), Canada, and Japan, is planning to build a space station by the mid1990s. The habitable portions of the space station will be composed of

separate but interconnected modules. Current plans call for the United States

to build two of these habitable modules while ESA and Japan will each

contribute an additional module. One of the U.S. modules will supply

essential living facilities (i.e., areas for recreation, sleeping, and eating)

while the other modules will be used as multipurpose laboratories for

materials processing, life sciences, fluid physics, and other types of

research. Canada plans to supply a mobile servicing facility that will be

attached to the space station truss structure and will assist with space

station construction

manned base, current

unmanned platforms

facilities. l

Recognizing

and payload and satellite servicing. In addition to the

plans for the space station envisage the development of

in near-polar orbits and extensive ground support

that the development of a multinational space station

would raise legal issues that “could have a significant long-term effect on

the Nation’s civilian space program, ” the Senate Committee on Commerce,

Science and Transportation asked the Office of Technology Assessment to

examine these issues, 2

In response to the Senate Commerce Committee request, OTA prepared a

background paper which discusses the legal consequences of developing and

operating the space station. This background paper examines the different

ways in which a multinational space station might be owned and operated and

explains how each could affect the rights and responsibilities of the U.S.

1 The phase B Memorandum of Understanding (Memorandum of Understanding Between

the National Aeronautics and Space Administration and the European Space

Agency for the Conduct of Parallel Detailed Definition and Preliminary Design

Studies Leading Toward Further Cooperation in the Development, Operation and

Utilization of a Permanently Manned Space Station, June 3, 1985) defines the

space station as “a multi-purpose, permanent facility in low-Earth orbit,

comprised of both manned and unmanned elements, that will significantly

enhance space operations. It will consist of a manned base, associated mantended platforms in low inclination and polar orbits, and a transfer vehicle

for use as necessary between the Space Shuttle, the manned base and the

associated platforms.“

2 Letter from Senators John C. Danforth, Slade Gorton, Ernest Hollings, and

Donald W. Riegle, Jr., Senate Committee on Commerce, Science, and

Transportation, to John H. Gibbons, Director, Office of Technology Assessment,

Apr. 22, 1985.
4 Space Stations and the Law

Government and its citizens. In addition, it gives special attention to the

application of jurisdiction, tort law, intellectual property, and criminal law

to nations and individuals living and working in space. The OTA background

paper is Part I of this document.

Part 11 of this report is a summary of the workshop held by OTA to

critique and expand on the initial drafts of Part I. In particular, Part II

addresses the fundamental issues of timeliness of government intervention, the

role of politics and technology in legal decisionmaking, the usefulness of air

law and maritime analogies, and the conflict between State and Federal law and

jurisdiction in the United States. In addition, new topics such as export law

and product liability law are introduced though not critically discussed.

Although Parts I and II address the same subject matter, they do so

from different perspectives and therefore offer different insights. This

Executive Summary draws freely from the findings of both.
Office of Technology Assessment 5

II - PRINCIPAL FINDINGS

Laws we take for granted on earth--e.g. , those which regulate commerce,

property, and personal interactions- -may not be available in space.

For the last several years, the U.S. Congress has been trying to

determine whether the patent laws of the United States already apply in space

or whether additional legislation is needed. In 1981, Congress faced this

same question with respect to Federal criminal law and decided to amend the

Criminal Code to remove any confusion on this point. These two examples

illustrate the simple fact that terrestrial laws do not necessarily apply to

space activities. This may be because the law in question has no

“extraterritorial application”- -an argument sometimes made with respect to the

patent laws- -or because the law, as written, makes no sense when applied to

space activities. The Uniform Commercial Code (UCC) provides an example of

this latter problem. The UCC is essential to U.S. commerce, but many of its

provisions --such as the definitions of personal property and real estate, or

its definitions of what is movable and immovable- -cannot be applied to the

space station without serious uncertainty.

Many informed observers believe that the success of space station

operation and space commerce will both depend on the extension to space of

many of the laws we currently have on earth. Ideally, whether a law is

applied to space should depend on whether it is practical and useful to do so.

For example, the Fair Labor Standards Act and its restrictions (e.g., the 8

hour work day) might seem inappropriate to space activities. On the other

hand, legislation such as the Death on the High Seas Act might be desirable

since it could be used to remove wrongful death actions from the jurisdiction

of States, thereby solving in advance the problem of conflicting State laws.3

For existing and future laws, it will be important to determine: 1)

whether it is desirable to apply a specific law to space activities; 2)

whether the law, as written, can be applied to space activities; and 3) what

legislative or regulatory modifications will be necessary to ensure that the

protections of the relevant law are available to, or denied, individuals

living and working in space.

Uncertainty with respect to the application of certain laws (e.g.,

intellectual property, product liability, and export law) could inhibit

 3The wrongful death statutes of States differ considerably. Many States use

a strict liability standard for wrongful death, while others use a negligence

standard. Potential conflicts would be avoided if the Federal law was held to

control. The Death on the High Seas Act limits recovery to pecuniary losses.

The wrongful death statutes of many States allow for loss of consortium or

anguish of next of kin.
6 Space Stations and the Law

private, commercial space activities on the space station.

Whether a firm chooses to conduct space research or to market a space

product will depend in part on the potential for damage claims under the

relevant product liability laws, the ability to protect--either through patent

or trade secret laws- -the result of the firm’s investment, and the

administrative complexity and cost of getting the product to market. In order

to assess these variables, a firm must know which nation’s--and in the United

States, which State’s --laws would apply to a potential product and what the

likely outcome of a controversy would be.

There must be some way to determine which of the hundreds of existing

laws that might be applied to the space station will actually be so applied.

For example, the Fair Labor Standards Act- -and its 8 hour work day--does not

now apply to NASA employees; whether it will apply to other people working in

space has yet to be determined. The wisdom of applying to space activities

the Federal Tort Claims Act, Buy-America Act, U.S. export laws, patent laws,

tax laws, and many other pieces of legislation is equally unclear.

To encourage private, commercial space activities, the U.S. Government

may wish to help firms determine which Federal and State laws will govern

their activities. Congress could undertake a general assessment of the

applicability of current Federal and State laws, or, alternatively, it could

direct some independent group of legal experts to begin this task.

Determining jurisdiction is the most important issue to resolve during

the planning stage for the space station.

Many of the issues discussed in this paper involve questions of

“jurisdiction”; that is, questions concerning a State’s right to prescribe and

enforce rules of law. The nature and extent of U.S. jurisdiction over a space

station will strongly influence when U.S. laws could be applied, what

unilateral actions the United States might take, and the rights and

obligations of foreign nationals. For all multinational space station

endeavors, the question of whether the United States has jurisdiction in a

particular instance will depend, in major part, on the terms of the relevant

space station agreement.

The international partners could agree that the space station is to

be: 1) a national space station, under the jurisdiction and control of one

country; 2) a multinational space station, under the joint jurisdiction and

control of several nations; 3) a multinational space station, the individual

modules of which are under the jurisdiction and control of separate nations;

or 4) an international space station, under the jurisdiction and control of an

international governmental organization similar to INTELSAT. The rights and

responsibilities of the U.S. Government and its citizens, the jurisdiction of

U.S. courts, and the lawmaking powers of Congress could differ under each of

these regimes.

U.S. law could be more easily applied and enforced if all space station
Office of Technology Assessment 7

components were under U.S. jurisdiction; however, such a solution may be

politically unacceptable to the other space station partners.

If the United States were to be the sole owner and operator of the

space station, it would be a relatively simple matter to extend U.S. law to

cover space station activities. However, should the United States choose to

retain sole jurisdiction over the space station, it is not clear whether other

countries would wish to continue their participation in this program. Nations

considering investing a substantial portion of their financial, technical, and

human resources in a space station will most likely wish to retain some type

of control over their contributions. With respect to the European partners

this assumption seems to have been confirmed by the Rome Resolution of 1985,

and by the positions they have taken in the ongoing space station

negotiations.

Most experts believe that the United States should not attempt to fashion

a novel ‘space code’ to cover all space station activities; rather, legal

problems should be addressed incrementally by the careful application of

intergovernmental agreements, congressional action in the form of

legislation, and, finally, court decisions,

Most legal experts consulted by OTA agreed that it was time to begin

an examination of the problems presented by multinational space station

operation, but that such an examination should proceed slowly, taking into

consideration the technical demands of building large, permanently manned

space structures, the political demands of multinational management, and the

eventual need to establish a “backdrop” of laws and regulations necessary to

protect those who live and work in space.

Legal experts were almost uniformly skeptical of the need for new

international treaties or national ‘space codes. ‘ However, many thought that

a systematic investigation of space station legal issues would reveal that

creative multinational agreements or selective domestic legislation would be

in order. Areas that were identified as needing prompt attention include:

jurisdiction, conflicts of law, power sharing between the U.S. Congress and

the 50 States, and power sharing between Federal and State courts.

Experts agree that as people begin to live and work in space, Congress

will be called on to resolve many complex legal issues; however, they

disagree on whether such issues must be resolved now or after they result

in a mature case or controversy,

4 The Rome Resolution, for example, declares that a “fundamental objective” of

European participation would be European “responsibility for the design,

development, exploitation and evolution of, . . identifiable elements of the

space station together with the responsibility for their management. . .“

“Resolution on Participation in the Space Station Programmed,” The ESA Council,

meeting at Ministerial level (Jan. 31, 1985; ESA/C-M/LXVII/Res. 2).
8 Space Stations and the Law

Most legal experts agree that, over the next several decades, a body

of law for space will develop that will serve the function that maritime law

now serves for the seas. Experts are divided, however, on the question of

whether domestic and international law should respond to immediate problems,

or attempt to prevent problems from occurring. Proponents of responsive

legislation maintain that laws affecting space should be developed

incrementally, in response to the increased use of space by the private

sector, advances in technology, judicial interpretations , and international

political and legal pressures. They argue that domestic and international

laws developed from “best guesses” about the future may unnecessarily restrict

our technical and commercial options. Proponents of preventive legislation

point out that the current legal uncertainty decreases the private sector’s

interest in investing in space and offers no guidance to courts that may

eventually be asked to resolve space station-related cases. In particular,

they point out the need to resolve questions of product liability, personal

injury, intellectual property, and export law. Inherent in this position is

the belief that current NASA regulations would not adequately protect the

interests of space workers who are not government employees.

Since U.S. laws could conflict with the laws of other nations, special

conflict rules may need to be developed for the space station.

Current international space agreements do not attempt to instruct

courts as to which body (or bodies) of law should be applied to cases and

controversies arising from space activities. Between sovereign nations,

‘choice of law’ and ‘conflict of law’ questions may not be particularly

important since the resolution of an issue is likely to be accomplished by

diplomatic negotiation. These questions will be much more important to

private firms whose business decisions may be predicated on an understanding

of the liability and financial risk of a given space venture.

‘Choice of law’ rules vary from country to country. Many countries

designate the law of the place where the activity or injury occurred as the

substantive law for tort and contract cases. Other countries rely on the law

where the case is brought, and still others (the predominant view in the

United States) look to the country with the most substantial contacts. The

application of any of these rules to a space station under the jurisdiction

and control of several nations would be difficult.

To the extent that ‘conflict of law’ problems could adversely affect

the success of the space station, every effort must be made to achieve some

type of international coordination. In the short run, such coordination will

probably take the form of prelaunch contracts that either establish applicable

rules of law or provide for arbitration.

Some experts believe that international conventions addressing the

question of ‘conflict of law’ in space and, perhaps, additional international

treaties may eventually be necessary. Others maintain that, instead of trying

to solve ‘conflict of law’ problems in advance, nations should handle them on

a case-by-case basis and encourage the development of a customary law of space
Office of Technology Assessment 9

conflicts. They acknowledge that such a course might be chaotic at first, but

believe that it could encourage creative solutions to traditional problems.

Prelaunch agreements similar to NATO’S “Status of Forces Agreements”

might help resolve complex jurisdictional and choice of law issues on the

space station.

The nations of the North Atlantic Treaty Organization (NATO) have

developed a complex set of agreements (Status of Forces Agreements) to resolve

questions of jurisdiction and control with respect to troops stationed in the

various NATO countries. These “Status of Forces Agreements” could provide a

useful model for resolving similar issues on a space station. The NATO

Agreements divide jurisdiction among different countries depending on the type

of offense committed (e.g., civil or criminal), where it was committed (on or

off the military base) , whether it was committed while on “official duty,” and

other criteria. Sometimes these agreements grant the host countries exclusive

jurisdiction over specific issues and, with respect to other issues,

jurisdiction is concurrent. Where concurrent jurisdiction exists, one nation

may be given primary jurisdiction- -which may be waived at its discretion--in

favor of some other nation. Such negotiated agreements would be useful

whether jurisdiction and control of the space station were held by one nation

or shared between several nations.

Nations must exercise caution when applying their domestic laws to the

space station.

‘Conflict of law’ rules will not resolve all the problems that could

result from the application of domestic laws to space station activities. For

example, with respect to inventions made in the United States, the U.S.

Inventions Secrecy Act requires patent applicants either to file first in the

United States or to request an exemption from the Act. At the present time, a

foreign astronaut who reduces an idea to practice on a space station over

which the United States claims jurisdiction must file first for a U.S. patent

or an exemption, or risk having a subsequent U.S. patent declared invalid.

There is no easy way to discover all the inconsistencies in all the

laws of the space station partners prior to the signing of the first round of

space station agreements. However, a modest effort, if started now, could,

when combined with the practical experience gained in the construction and

early operation of the space station, help to identify most significant

conflicts. Once discovered, such conflicts could be resolved on a case-bycase basis through international agreements and domestic legislation.

The United States must determine

adjudicate cases and controversies

Government and the various State

station activities.

how the right to make laws and

will be shared between the Federal

Governments with respect to space
10 Space Stations and the Law

In the United States, most laws affecting the rights of individuals

(e.g., personal injury, contracts, property, wills and estates, employee s

compensation, etc.) are State laws, not Federal laws. In addition, under the

doctrine of Erie v. Tompkins, 5 Federal courts must apply State law ‘n ‘any

cases.

Because the substance of State laws varies considerably, it is

essential that the jurisdiction of State courts and the applicability of State

law to space station activities be determined clearly. This will involve

deciding: 1) whether the grant of jurisdiction over ‘space-related’ cases is

exclusively limited to Federal courts or is shared with the States; 2) whether

the individual States will

activities; and 3) how to

activities.

Analogies drawn from

be allowed to pass laws affecting space station

apply the doctrine of Erie v. Tompkins to space

air law and maritime law can provide useful

examples; however, the radical differences between the air, sea, and

space environments may make it unwise to try to apply the same laws to

these different regimes.

Since the beginning of the space age lawyers have debated whether and

to what extent the legal principles found in air law and maritime law could be

applied to outer space activities. Most legal experts agree that air and sea

law could not be transferred wholesale to the realm of space. However, many

believe that analogies drawn from air and sea law could assist in the

development of a unique body of space law. Although such analogies could not

accurately reflect the unique technological and political circumstances of the

space station, certain legal aspects of interpersonal relationships may be

similar. For example, how nations compensate injuries, keep track of and

transfer personal property, delegate authority, and punish minor wrongs on the

space station need not differ substantially from their practices in the air or

on the high seas.

5 304 U.S. 64 (1938).
Office of Technology Assessment 11

III - CONCLUSIONS

Congress and the judiciary can expect to play a major role in the

implementation of the space station agreement currently being negotiated by

the executive branch. In addition to the oversight function it exercises with

respect to NASA, Congress will be called on to decide which of the existing

laws already apply to space, what new laws are necessary to protect U.S.

nationals living and working in space, and how to best encourage commercial

activities on the space station. The judiciary will be left to unravel what

at first could be daunting jurisdiction and conflict of law problems, and, to

the extent that it is not done by Congress, to develop specific rules for

space-related product liability, contract, intellectual property and other

suits.

Congress need not wait for the completion of the space station

agreement to begin to examine the issues discussed in this paper. In the near

term, three tasks can be identified that would benefit greatly from

congressional attention:

1. Congress could begin to identify those Federal and State laws

which already apply to space and those laws which Congress

believes should apply to space;

2. Congress could begin to resolve the questions of power-sharing

between Federal and State laws and between Federal and State

courts as they relate to space station activities; and

3. Congress could monitor the space station negotiations to

ensure that the final space station agreements protect the

fundamental rights and interests of U.S. citizens and support

U s . policies, including those related to commercial

activities in space.

Should Congress choose to undertake these tasks, it could benefit

greatly by drawing on the experience of a wide range of international and

domestic lawyers. To obtain such a range of experience, Congress may wish t.

encourage professional societies, such as the American Bar Association, the

American Society of International Law, or the International Institute of Space

Law, to form working groups to examine the legal implications of space station

development and operation.
Part I

Background Paper
I - INTRODUCTION

A. Purpose and Scope

Space station activities will be affected by international law,

(customary international law, treaties, and other international agreements);

national space law (laws to encourage scientific or commercial space

activities or to regulate or establish new space industries); and, ordinary

domestic law (e.g., criminal law, contract law, tort law, etc.).

This paper is primarily concerned with international law and regular

domestic law because these will have the greatest effect on space station

operations. National laws designed to encourage commercial space activities

or to regulate new space industries (e.g., The Remote Sensing Act and the

Space Launch Commercialization Act) are discussed only insofar as they offer

interesting insights regarding space station activities. The relationship

between military space activities and international law has been discussed in

other recent OTA reports.

It is, of course, impossible to describe how every U.S. law would

apply to activities aboard a space station. Therefore, this paper examines an

illustrative set of legal issues and outlines an analytical means for

examining other areas of law. It begins with a brief review of the current

international space laws; it then describes the concept of “jurisdiction” and

explains

States.

areas of

property

how U.S. laws may be applied outside the territory of the United

After this general discussion, the paper analyzes three specific

law that will be critical to space station activities: intellectual

law, criminal law, and tort law.

B. Definition

Before beginning a legal analysis, it is first necessary to clarify

just what is meant by space station. Is it something more than a satellite?

Must an object in space be habitable to be considered a space station? Must

it be capable of orbiting for a specific duration before it gains the status

of space station? Can separate, free-flying space objects (e.g., two separate

research modules) be considered as part of one space station? If objects must

be attached to be considered a space station, must that attachment be of a

relatively permanent nature?

1

U.S . Congress, Office of Technology Assessment, Ballistic Missile Defense

Technologies, OTA-ISC-254 (Washington, DC: U.S. Government Printing Office,

September 1985); U.S. Congress, Office of Technology Assessment, AntiSatellite Weapons, Countermeasures, and Arms Control, OTA-ISC-281 (Washington,

DC: U.S. Government Printing Office, September 1985).
16 Space Stations and the Law

As explained in detail below, the answers to these questions will help

to determine the ‘nationality’ of space stations and, consequently, the reach

of national laws. Although international acceptance of such terms may

eventually result from specific agreements

no such consensus exists today. Lacking

forced to adopt an arbitrary definition of

For the purposes of this report,

and the common practice of states,

such a consensus, this report is

“space station. ”

a space station is an object or a

collection of objects (attached or free-flying) which is in an intentional,

long-duration earth orbit and is, at least in part, habitable.2 Under this

definition, orbital duration and habitability would be determined by both the

actions and the stated intentions of the relevant parties. Space objects

would not be considered to be components of a space station unless: 1) the

relevant parties make clear, through their statements or actions, that this is

their intention; or 2) the technological relationship between the objects is

so complete as to make such a determination obvious (e.g., a station’s power

module) .

2 This definition would specifically exclude space transportation systems such

as the Space Shuttle. This paper does not attempt to define the legal status

of interplanetary spacecraft or space stations on or in orbit about celestial

bodies other than the Earth.
Office of Technology Assessment 17

II - OVERVIEW OF CURRENT LEGAL REGIME

A. Treaties and International Agreements

International law is applicable to space stations for three reasons:

first, space has been defined by the Outer Space Treaty as an international

realm beyond the sovereign claim of any nation or group of nations3

; second,

article VI of the U.S. Constitution states that: “Treaties made, . . . under the

Authority of the United States, shall be the supreme Law of the Land”;

therefore, U.S. citizens engaged in space activities are bound as a matter of

domestic law by self-executing provisions of the space treaties4

; and third,

since the space station currently under consideration by NASA will include

some level of international participation, attempts to apply U.S. law to the

entire space station will raise questions with an international dimension.

The5United States has signed and ratified four international space

agreements:

o Treaty on Principles Governing the Activities of States in the

Exploration and Use of Outer Space, Including the Moon and

Other Celestial Bodies (The Outer Space Treaty, 1967)6

;

3Outer Space Treaty, article I, (18 U.S.T. 2410; T.I.A.S. 6347).

4 Not all treaties made by the United States immediately become U.S. domestic

law. Treaties can be classified as self-executing (those which become

domestic law immediately) and nonself-executing (those which require some

action on the part of Congress to implement). For two different applications

of this rule, see: Sei Fuji v. State, 242 P.2d 617, 38 Cal.2d 718 (1952),

where the California Supreme Court held that the general purposes and

objectives of the the U.N. Charter did not impose legal obligations on the

individual member nations or create rights in private persons; and Asakura v.

City of Seattle, 265 U.S. 332, 44 S.Ct. 515 (1924), where the U.S. Supreme

Court held that a local law prohibiting non-citizens from operating as

pawnbrokers violated a treaty between the United States and Japan.

5 The United Nation’s Committee on the Peaceful Uses of Outer Space (COPUOS)

which was responsible for drafting these four treaties also drafted the

“Agreement Governing the Activities of States on the Moon and Other Celestial

Bodies” (the Moon Treaty, 1979). Although the United States participated in

the drafting of this fifth treaty, it neither signed nor ratified this

document.
18 Space Stations and the Law

o Agreement on the Rescue of Astronauts, the Return of

Astronauts and the Return of Objects Launched into Outer Space

(The Astronaut Treaty, 1968)7

;

o Convention on International Liability for Damage Caused by

Space Objects (The Liability Convention, 1973)8

; and

o Convention on Registration of Objects Launched into Outer

Space (The Registration Convention, 1976)9

.

Most of the fundamental principles of international space law can be

found in the 1967 Outer Space Treaty. The 1968 Astronaut Treaty, the 1973

Liability Convention, and the 1976 Registration Convention serve primarily to

elaborate some of these general principles. Taken together, these Treaties

establish a unique international legal regime for space. Although this

subject has been dealt with in greater detail elsewhere10 it is useful to

examine some of the principles that have relevance to the development and

operation of a space station.

1) The Legal Character of Outer Space. Outer space is considered

by most jurists to be res communis; that is, a place that is owned by no one

but is free for use by everyone. Article II of the 1967 Outer Space Treaty

states: “outer space, including the Moon and other celestial bodies, is not

subject to national appropriation by claim of sovereignty, by means of use or

occupation, or by any other means.”

Although space ma not be “appropriated,” it is “free for exploration

and use by all States.”11 In some circumstances this “use” may even be

6 18 U.S.T. 2410; T.l.A.S. 6347.

7 19 U.S.T. 7570; T.I.A.S. 6599,

8 24 U.S.T. 2389; T.I.A.S. 7762.

9 28 U.S.T. 695; T.I.A.S. 8480.

10 See generally: Carl Q. Christol, The Modern

Space, (Pergamon Press, 1982); Manual on Space

International Law of Outer

Law, Jasentuliyana and Lee,

eds. , (Oceana Publishing, 1979); Nicolas M. Matte, Aerospace Law, (Carswell,

Ltd., Canada, 1969); Myres S. McDougal, Harold D. Lasswell, and Ivan A.

Vlasic, Law and Public Order in Space, (Yale University Press, 1963). For a

more detailed examination of how the current space treaties relate to space

station development and activities, see: Eilene Galloway, “The Relevance of

General Multilateral Space Conventions to Space Stations,” paper delivered to

the International Colloquium on Space Stations, Hamburg, Germany, October 3-4

1984; Hamilton DeSaussure, “The Impact of Manned Stations on the Law of Outer

Space,” San Diego Law Review, vol. 21, No. 1, March 1984.

111967 Outer Space Treaty, supra, note 6, article I: “Outer Space, including
Office of Technology Assessment 19

exclusive. For example, a country that places a broadcasting satellite in

geostationary orbit12 prevents other countries from placing broadcasting

satellites in that identical position in that orbit. Such exclusive use is

allowed because it constitutes neither a permanent “appropriation” nor an

attempt to extend state sovereignty. A similar situation exists in maritime 13

law. Nations may not claim sovereignty over portions of the high seas;

however, when conducting activities such as naval maneuvers, satellite launch

or recovery at sea, or missile tests, nations have in the past exercised

temporary control over portions of the high seas. 14 In both maritime law and

space law, temporary exclusive use is allowed as long as it is accomplished

with “due regard” for the corresponding interests of other states.15

2) The Status of Private Sector Space Activities. There was some

initial disagreement as to the legal status of private sector space

activities. The United States has always encouraged the private sector to

16 participate in space exploitation. The Soviet Union initially opposed this

idea. In 1962, the Soviets introduced a draft treaty which stated: “All

activities of any kind pertaining to the exploration of outer space shall be

carried out solely and exclusively by States. . ."17 In order to resolve this

the moon and other celestial bodies, shall be free for exploration and use by

all States without discrimination of any kind, on a basis of equality and in

accordance with international law, and there shall be free access to all areas

of celestial bodies,"

12 A circular, equatorial orbit whose period of rotation is equal to the

period of rotation of the earth; a satellite in such orbit remains

approximately fixed in relation to the Earth.

13Some jurists have argued that the “first come, first served” method of

allocating orbital slots amounts to an “appropriation” in violation of the

Outer Space Treaty. See: Ram S. Jakhu, “Legal Aspects of the WARC,”

Intermedia, May 1985, vol. 13, No. 3, p. 17.

14States have also recognized the right to establish permanent platforms on

the contiguous high seas over the continental shelf. (Rodrigue v. Aetna

Casualty and Surety, 395 U.S. 352.) As long as these platforms are not a

hazard to maritime navigation, they do not contravene international law.

15Article IX of the Outer Space Treaty provides that states shall “conduct

all their activities in outer space . . . with due regard for the corresponding

interests of all other states. . .“ Article 87 of the 1982 United Nations

Convention on the Law of the Sea states: “[Freedom of the high seas] shall be

exercised by all States with due regard for the interests of other States. . ."

16In 1960, President Eisenhower directed NASA to “advance the needed research

and development to encourage private enterprise to apply its resources toward

the earliest practical utilization of space technology for commercial civil

communication requirements." White House Press Release, Dec. 30, 1960.

17U.N. Dec. A/AC, 105/L2; U.N. DOC. A/5/81, Annex 3.
20 Space Stations and the Law

conflict, the United States proposed that each country should bear the

responsibility for the activities of its nationals in space. This

compromise was acceptable to the Soviet Union and was incorporated in article

VI of the 1967 Outer Space Treaty.19

The space treaties declare that, under certain circumstances, a

country is both ‘responsible’ and ‘liable’ for the space activities of its

nationals. It is important to note that this differs from the common practice

in both maritime and air law. The United States exercises a supervisory role

(responsibility) with respect to ships and planes owned by the private sector

but does not accept the financial risk (liability) for the actions of these

assets. In space, under certain circumstances, the U.S. Government has both a

supervisory and a financial responsibility. 20

The principle of state responsibility for the actions of its nationals

is incorporated in articles VI and IX of the 1967 Outer Space Treaty.

Although the 1967 Treaty does not specifically grant private industry the

right to undertake commercial activities in space, the U.N. debates on this

subject make it clear that such rights were contemplated by the drafters and,

in fact, already existed--at least in the United States--as a result of the

1962 Communication Satellite Act.

3) State Responsibility for Actions in Space. Article VI of the

Outer Space Treaty states:

States . . . shall bear international responsibility for national

activities in outer space, . . . whether such activities are carried on by

governmental agencies or by non-governmental entities, and for assuring

that national activities are carried out in conformity with . . . (this)

Treaty. The activities of non-governmental entities in outer space, . . .

shall require authorization and continuing supervision by the appropriate

State party to the Treaty.

Some authors have suggested that a state’s responsibilities under

article VI are extensive:

(W)hile no one would doubt the need for government control over

space activity at its present stage, . . . Article VI would prohibit, as a

18U.N. Dec. A/AC. 105/L5; U.N. DOC. A/5/81, Annex 3.

19Article VI of the outer Space Treaty provides that states shall bear

international responsibility for the conduct of their nationals in outer

space. The United States has not undertaken to bear domestic responsibility,

vis-a-vis its own nationals or their property.

20In recognition of this fact, the standard NASA launch service agreement

requires the customer to obtain third-party liability insurance to reduce or

eliminate the financial exposure of the U.S. Government.
Office of Technology Assessment 21

matter of treaty obligation, strictly private, unregulated activity in

space or on celestial bodies even at a time when such private activity

becomes most commonplace. Although the terms “authorization” and

“continuing supervision” are open to different interpretations , it would

appear that Article VI requires a certain minimum of licensing and

enforced adherence to government-imposed regulations. 21

With respect to government or private activities that could “cause

potentially harmful interference with activities of other States,” a state,

under article IX of the Outer Space Treaty, must “undertake appropriate

international consultation before proceeding with any such activity.“ Article

IX’s language is significant because it can be read as imposing an active duty

to regulate, whereas article VI might be read as imposing only a passive duty

to supervise.

4) State Liability for Actions in Space. Article VII of the

Outer Space Treaty and article 11 of the 1973 Liability Convention extend the

concept of State responsibility to include the concept of liability for

certain space activities. Article II of the Liability Convention provides

that a launching State is absolutely liable22 for “damage caused by its space

object on the surface of the earth or to aircraft in flight." 23 If the damage

does not occur on earth or in the air, then the launching state is “liable

only if the damage is due to its fault or the fault of persons for whom it is

responsible. “24

The Liability Convention applies only to “launching states, ” which are

defined in article I as:

(i) A State which launches or procures the launching of a space

object;

21 Jasentuliyana and Lee, Manual of Space Law, vol. 1, p. 17 supra, note 10.

However, it might reasonably be argued that the “authorization and continuing

supervision” required by registry states relate to treaty compliance and

safety, not to the general activities of private firms, A comparison could be

made to the present state of U.S. commercial aviation, in that market forces

are allowed to dictate fares, rates, and capacity, but the FAA retains sole

responsibility for air safety.

22 There is an important legal distinction between absolute liability and

fault liability. Under an absolute liability standard, the plaintiff need

only prove that the incident occurred and that the injury resulted from the

incident. Where the standard is fault liability, the plaintiff must also

prove that the defendant was at fault, that is, that the defendant acted with

negligence,

23 The Liability Convention does not apply to damage caused by a launching

state to its own nationals. This problem is discussed in section VI.

24 Liability convention, supra, note 8, article III
22 Space Stations and the Law

(ii) A State from whose territory or facility a space object is

launched;

Under this scheme, if state A launches a space object

corporation of state B from the territory of state C, states A

considered launching states and therefore absolutely liable for

Earth. The question of state B’s liability is unclear, even

for a private

and C would be

damage done on

though state B

would be responsible under article VI of the Outer Space Treaty for the

“authorization and continuing supervision” of the private sector party. If

state B is considered to have “procured” a launch, then presumably it would

also be liable.25

The Liability Convention allows an injured party to file a claim

against any launching state. Therefore, in the example given above, states A,

B, and C might all be held liable. To offset a potentially inequitable

outcome, article V of the Liability Convention allows a state that has paid

compensation for damages to present a claim for indemnification to other

participants in the joint launching.

The Liability Convention grants neither rights nor responsibilities to

the private sector. If the nationals of a launching state cause damage to the

nationals of another state, the damaged party must have its government present

a claim for compensation to the government of the launching party. The

Convention does, however, acknowledge the right of individuals to pursue

remedies outside the Convention. 27

5) State Jurisdiction Over Space Objects. The 1967 Outer Space

Treaty establishes the principle that “A State . . . on whose registry an object

launched into space is carried shall retain jurisdiction and control over such

object and over any personnel thereof, while in outer space or on a celestial

body.”28 In other words, the rights and responsiblities of the state of

registry of a space object are similar--though not identical--to those of the

25Article VI of the Outer Space Treaty holds a state responsible for the

actions of its nationals; however, it does not say that the action of a

national is identical to the action of the state. In the example above, if

state B’s nationals procure a launch, it is not immediately clear that state B

has procured a launch. Therefore, although state B would be responsible, it

might not be liable for the actions of its nationals. It is interesting to

note that the 1973 NASA/ESA Spacelab Agreement (24 U.S.T. 2049; TIAS 772) is

also ambiguous with respect to these terms. Article 11 is entitled

“Liability” but the article speaks only of “responsibility.”

26Liability convention, Ibid. , article VIII.

27Article XI (2) states: “Nothing in this Convention shall prevent a State,

or natural or juridical persons it might represent, from pursuing a claim in

the courts or adminstrative tribunals or agencies of a launching State.”

281967 Outer Space Treaty, supra, note 6, article VIII.
Office of Technology Assessment 23

state of registry of a ship.

In addition to the registries of the individual launching states

mentioned in the Outer Space Treaty, the Registration Convention instructs the

Secretary-General of the United Nations to maintain a separate registry.

States on whose registry a space object is recorded are to notify the

Secretary-General “as soon as practicable” of the:

(a) Name of launching State or States;

(b) [A]ppropriate designator of the space object or its registration

number;

(c) Date and territory or location of launch;

(d) Basic orbital parameters. ..;

(e) General function of the space object;29

Where two or more states might be considered “launching states,”

article II of the Registration Convention provides that “they shall jointly

determine which one of them shall register the object. 1130 Although only one

of the parties can register the object, article 11 acknowledges that the

registration decision is “without prejudice to appropriate agreements

concluded or to be concluded among the launching States on jurisdiction and

control over the space object and over any personnel thereof."

B. U.S. Space Law

Until recently, U.S. space law--excluding telecommunication law3l

--

consisted primarily of reulatory interpretations of the 1958 National

Aeronautics and Space Act.32 When U.S. space ‘exploration began, domestic

space laws were not as important as they are now, since the government was the

primary actor in space. NASA, working with private contractors, developed the

technologies that it needed to conduct its research; these technologies form

the basis of what are now the infant space transportation, remote sensing, and

materials processing in space (MPS) industries.

29Registration Convention, supra, note 9, article IV.

30Registration convention, supra, note 9, article II.

31The 1962 Communication Satellite Act (47 U.S.C. 701 et seq.), which

established COMSAT as a private corporation and the U.S. participant in

INTELSAT, is one of the most significant pieces of domestic legislation

affecting space activities. However, this paper does not address problems of

communications law. For a discussion of current political and legal issues in

satellite communications, see, U.S. Congress, Office of Technology Assessment,

International Cooperation and Competition in Civilian Space Activities, OTAISC-239 (Washington, DC: U.S. Government Printing Office, July 1985) Chapter

6.

32 42 U.S.C. Sec. 2451, et seq.

62-622 0- 86- 3 : QL 3
24 Space Stations and the Law

Following the completion of the Apollo program, the emphasis of the

U s . space program began to shift from achieving technological superiority

over the Soviet Union and solar system exploration to the pursuit of programs

with more obvious earth-oriented benefits. In 1978, President Carter

announced that the United States would “encourage domestic commercial

exploitation of space . . . for economic benefit...”3 3

The Reagan

Administration has continued and expanded the Carter policy of encouraging

commercial space activities.

In a relatively short period of time, the U.S. private sector began to

generate proposals for private launch, remote sensing, and materials

34 

processing services. AS each of these technologies raised a different set

of legal issues, pressure began to build to develop legislation specifically

crafted to each technology. In 1984, Congress passed and the President signed

into law the Land Remote-Sensing Commercialization Act35 and the Commercial

Space Launch Act.

36 These bills were designed to encourage the development of

private remote sensing and space transportation industries and to establish

the minimum but essential level of government regulation required by article

VI of the 1967 Outer Space Treaty.

33 White House Press Release, “Description of a Presidential Directive on

National Space Policy,” June 20, 1978.

34 For a detailed look at the history and current structure of each of these

industries, see: International Cooperation and Competition in Civilian Space

Activities, supra, note 31; see also: U.S. Congress, Office of Technology

Assessment, Civilian Space Policy and Applications, OTA-STI-177 (Washington,

DC: U.S. Government Printing Office, June 1982).

35 Public Law 98-365; See also: Richard DalBello, “The Land Remote Sensing

Commercialization Act of 1984,” Space Policy, August 1985.

36 Public Law 98-575; See also: E. Jason Steptoe, “Regulation of private

Commercial Space Transportation by the United States Department of

Transportation,” American Institute of Aeronautics and Astronautics,

Proceedings of the Twenty-Eighth Colloquium on the Law of Outer Space, 1985.
Office of Technology Assessment 25

III -

The nature

determine when U.S.

JURISDICTION

and extent of

laws could be

States may take in space, and the

This section examines the concept

OVER SPACE STATION ACTIVITIES

U.S. jurisdiction over a space station will

applied, what unilateral actions the United

rights and obligations of foreign nationals.

of jurisdiction and explains how it might be

applied to private and government-owned space stations.

A. The Concept of Jurisdiction

Jurisdiction is a legal concept used to describe a state’s right to

take action--e.g., to prescribe and enforce rules of law--with respect to a

particular person, thing, or event. In its inception, the principle of

jurisdiction was primarily territorial, deriving from the belief that the

power of a nation to act within its own borders was “necessarily exclusive and

absolute . . . susceptible of no limitation not imposed by itself.”37 But the

actions of nations have rarely been limited to their territory. As a result

of international trade and travel, and military and political cooperation and

competition, the concept of

3

‘jurisdiction had to expand to comprehend the

myriad interactions of states. 8

37 Cements of Chief Justice Marshall in Schooner Exchange V. McFadden, 7

Cranch 116, 136 (U.S. 1812).

38 Although there are many jurisdictional rationales, all require that there

be some genuine link between the state and the persons, property, or events

over which jurisdiction is claimed.

“States have traditionally sought to assert jurisdiction on certain

bases or principles. As usually identified, these include:

1. The Territorial Principle - A state may exercise jurisdiction

with respect to an act occurring in whole or in part in its territory.

2. The Nationality Principle - A state may exercise jurisdiction

with respect to its own national, wherever he may be.

3. The Protective Principle - A state may exercise jurisdiction

with respect to certain types of acts wherever, and by whomever,

committed where the conduct substantially affects certain vital state

interests, such as its security, its property, or the integrity of its

governmental process.

4. The Universality Principle - A state may exercise jurisdiction

with respect to certain specific universally condemned crimes,

principally piracy, wherever and by whomever committed, without regard to

the connection of the conduct with that state.
26 Space Stations and the Law

Jurisdiction must be exercised somewhere, with respect to something or

person. As discussed above, jurisdiction cannot be applied to the high seas

or to outer space 39 because these areas are considered res communis under

international law and therefore are not ‘places’ that can be appropriated by

claim of sovereignty. However, the 1967 Outer Space Treaty declares that a

nation may exercise jurisdiction and control over objects in space, much as a

nation may exercise jurisdiction over a ship at sea. Objects in space and

ships at sea are treated (with some important limitations) as if they were

part of the territory of the country on whose registry they are entered and

whose flag they fly.40

B. Extent of National Jurisdiction

International law recognizes a nation’s jurisdiction over its

citizens, its territory, territorial waters and airspace, and those ships and

aircraft which it has registered. Whether nations have, through the exercise

of their domestic laws, actually extended their jurisdictions to the full

extent allowed by international law is a more complicated question.

With reference to U.S. jurisdiction over space activities, it will be

important to distinguish between what the United States is capable of doing

and what, through congressionally enacted legislation, it has already done.

Absent a specific statement of congressional intent, U.S. courts have been

reluctant to give extraterritorial reach to certain domestic laws. For

5. The Passive Personality Principle - A state may exercise

jurisdiction with respect to any act committed outside its territory by a

foreigner which substantially affects the person or property of a

citizen.”

(S. Houston Lay, Howard J. Taubenfeld, The Law Relating to Activities of

Man in Space, The University of Chicago Press, 1970).

“These principles of jurisdiction are not all accepted as equally valid.

The nationality and territorial principles . . . are universally accepted. The

protective principle is now almost universally accepted. Universality is

generally accepted only for recognized international crimes. The passive

personality principle remains controversial as a basis of jurisdiction.”

(Major General Thomas Bruton, “The Status of Criminal Jurisdiction in Outer

Space,” 24th Conference of the Interamerican Bar Association (Panama City,

Panama, February 1984).

39 Except insofar as a nation may exercise jurisdiction and control over a

ship on the high seas or a space object in outer space.

40 The legal fiction that ships on the high sea and space objects in orbit are

like “floating islands” has not been universally accepted. The U.S. Supreme

Court, in Cunard S.S. v. Mellon (262 U.S. 100), referred to the floating

island theory as “a figure of speech, a metaphor. ”
Office of Technology Assessment 27

example, in McCulloch v. Sociedad Nacional de Marineros de Honduras, 41 the

Court was asked to decide whether U.S. labor laws would apply to ships

registered in Honduras and owned and operated by the Honduran subsidiary of a

U.S. corporation. The Court noted that Congress had the “constitutional power

to apply the National Labor Relations Act to the crews working foreign-flag

ships, at least while they are in American waters, ” but decided that the

resolution of the case depended on “whether Congress exercised that power.”

The court held: “to sanction the exercise of local sovereignty in this

‘delicate field of international relations there must be present the

affirmative intention of the Congress clearly expressed’ . . . Since neither we

nor the parties are able to find any such clear expression, we hold the

[National Labor Relations] Board was without jurisdiction ...”

Similarly, in United States v. Cordova,42 the Court was asked to

decide whether an assault committed in a U.S. flag airplane flying over the

high seas was within the admiralty and maritime jurisdiction as described in

the then current U.S. Criminal Code (18 U.S.C.A. Sec. 451).43 Although the

Court noted that “Congress could, under its police power, have extended

federal criminal jurisdiction to acts committed on board an airplane owned by

an American national. . . ," the applicable legislation (18 U.S.C.A. Sec. 451)

spoke only of “vessels” on the “high seas.” The Court then concluded that

“’vessel’ . . . evokes in the common mind a picture of a ship, not of a plane,”

and that no case or legal principle would “justify the extension of the words

‘high seas’ to the air space over them.” 44

The U.S. statute defining the “special maritime and territorial

jurisdiction of the United States” for criminal jurisdiction has since been

modified to resolve the problem presented in United States v, Cordova and to

try to anticipate those problems which might arise in future space

45 Currently, activities. this special jurisdiction includes:

1. any vessel belonging in whole or in part to the United

41 372 U.S. 10; 83 S. Ct. 671.

42 89 F.Supp. 298.

43 At the time , 18 U.S.C.A. Sec. 451 stated that the admiralty and maritime

jurisdiction of the United States extended to “American vessels on [the] high

seas."

44 Cordova involved the interpretation of a criminal statute; therefore, under

U.S. law, the statute was strictly construed. Not all statutes are strictly

construed. For example, the Death on the High Seas Act (46 U.S.C. 761), which

provides a remedy for wrongful death occurring “on” the high seas, has been

interpreted by several Federal courts to apply to tortious conduct “over” as

well as “on” the high seas. See: D’Aleman V. Pan American Airways, 259 F.2d

493.

45 18 U.S.C.A. Sec. 7.
28 Space Stations and the Law

5.

6.

7)

States, or any citizen thereof, or to any corporation created

by or under the laws of the United States . . .

* * *

Any aircraft belonging in whole or in part to the United

States, or any citizen thereof, or to any corporation created

by or under the laws of the United States, . . . while such

aircraft is in flight over the high seas, or over any other

waters within the admiralty and maritime jurisdiction of the

United States . . .

Any vehicle used or designed for flight or navigation in space

and on the registry of the United States pursuant to the [1967

Outer Space Treaty] . . . and the [Registration Convention] . . .

while that vehicle is in flight . . . [emphasis added]

Any place outside the jurisdiction of any nation with respect

to an offense by or against a national of the United States.

Given the restrictive interpretation of the U.S. jurisdiction

presented in the McColluch and Cordova cases, it is possible to imagine

further problems even under the revised Criminal Code. For example, is a

large, manned space station designed to travel in a stable, set orbit

considered to be a vehicle “used or designed for flight or navigation in

space?” If S O ,then paragraph 6 of the Criminal Code (above) would include a

space station within the “special maritime and territorial jurisdiction” of

the United States. However, since space stations will have attributes which

differ from those of space transportation vehicles--e.g. , their size,

complexity, multinational nature, duration in orbit, etc. --they might be

considered to fall outside the general provisions of paragraph 6 which seem

more applicable to shuttle-type vehicles.46 If space stations did not meet

the requirements of paragraph 6, they still might be included under the

general provisions of paragraph 7. However, paragraph 7 raises a number of

issues concerning the extraterritorial application of U.S. jurisdiction that

are beyond the scope of this report.

In the future, it is entirely possible that some space stations will

be privately owned. It is also possible that space stations owned in whole or

in part by U.S. nationals or corporations will be registered in other

countries. A state is generally considered to have jurisdiction to prescribe

(though not necessarily enforce) rules of law regarding the conduct of its

nationals wherever that conduct occurs.47 The extension of U.S. law to

privately owned space stations that were registered in other countries would

be complicated by the fact that the law of the state of registry might

conflict with that of the United States. This could cause problems since the

United States, under article VI of the Outer Space Treaty, would remain

responsible for the acts of its nationals in space,

46 The ‘nature’ of space stations is discussed in: Hamilton DeSaussure, “The

Impact of Manned Space Stations on the Law of Outer Space,” supra, note 10.

47 Restatement (Second) of Foreign Relations Law of the United States, Sec.

30, American Law institute, 1965.
Office of Technology Assessment 29

Finally, should the United States have the right to exercise its

jurisdiction in a particular instance, it would still be necessary to decide

how to share power between the Federal government and the individual States.

This generally means deciding: 1) whether the grant of jurisdiction in a

particular case is exclusively limited to Federal courts or is shared with the

state courts, and 2) whether the individual States would be allowed to pass

laws in this area.48 The Judiciary Act of 1789 granted Federal courts

exclusive jurisdiction over in rein (action against the vessel) admiralty

questions. However, in personam (action against the owner of the vessel)

maritime cases can be brought in State courts .49 Similar grants or

restrictions of the jurisdiction of Federal and State courts may be necessary

for cases involving space activities. In addition, Congress may choose to

limit the ability of States to pass laws in certain areas while allowing State

courts to apply Federal law. For example, the Federal Aviation Act50 limits

the right of States to legislate with respect to commercial air travel;

however, State courts share with Federal courts the ability to interpret the

Federal Aviation Act. The “Commercial Space Launch Act,”51 establishes a

Federal licensing mechanism but notes that the “authority of States to

regulate space launch activities within their jurisdictions, or that affect

their jurisdictions, is unaffected by this Act. . .“

To summarize, the issue of jurisdiction is fundamental to the

application of U.S. laws to space activities. The fact that international law

would allow an extension of U.S. jurisdiction in a particular instance does

not mean that such an extension has occurred. Laws meant to regulate U.S.

domestic activities may not apply to U.S. space activities (just as the U.S.

criminal laws did not apply to the Cordova case) unless Congress has clearly

established its intention to so extend these laws. Should international law

allow an extension of U.S. jurisdiction and should Congress establish its

intention to take advantage of such an extension, it would still be necessary

to decide whether Federal laws would preempt State laws with respect to space

48Some laws may have to be exclusive (e. g. , registration laws and laws

pertaining to the spaceworthiness of spacecraft); other laws might be amenable

to concurrent State/Federal jurisdiction (e.g., criminal and tort law

pertaining to individuals on board).

49 Maritime causes of action brought in personam in State courts must rely

maritime law and not the common law of the State of the forum. (See: Garret v.

Moore McCormack, 317 U.S. 239 (1942). ) Justice Black, writing in United Fruit

(365 U.S. 731) noted that “Article VI of the Constitution carries with it the

implication that wherever a maritime interest is involved, no matter how

slight or marginal, it must displace a local interest, no matter how pressing

and significant.“ The supremacy and uniformity doctrines that prevail in

maritime law could be applied to law in outer space.

50 49 U.S.C. 130, et seq.

51 49 U.s.c. 2601-2623.
30 Space Stations and the Law

activities, and whether jurisdiction was shared by both Federal and State

courts.

c. Jurisdictional Alternatives for Governments

A space station could have at least four different types of legal

status, making it either:

1. a national space station under the jurisdiction and control of a

single nation; 52

2. a multinational space station under the joint jurisdiction and

control of several nations;

3. a multinational space station the individual modules of which are

under the independent jurisdiction and control of separate

nations; or

4. an international space station under the jurisdiction and control

of an international governmental organization similar to

INTELSAT.

Under each of these options, the rights and liabilities of the U.S.

Government and its citizens could be substantially different:

1) U.S. Jurisdiction and Control. To avoid the controversy and

complexity of cooperative international ownership and operation, the United

States may wish to retain complete control over the space station. Assuming

the space station is owned and registered solely by the United States under

the terms of the 1976 Registration Convention, its legal status would be

similar to that of a ship or airplane flying the U.S. -. flag. As discussed

above, ships 53 and aircraft54 have the nationality of

are registered. The United States would have the

enforce rules of law regarding the operation of such

as such rules did not violate international law.

States would coordinate many of these rules with the

the space station.

As discussed above, Congress could apply U.S.

the state in which they

sole power to make and

a space station as long

Presumably, the United

foreign participants in

laws to the activities

aboard a U.S. space station, but in the absence of clear congressional intent

52 Space stations owned by private sector entities and registered under the

laws of a single state would also fall in this category. A space station that

was owned by a U.S. national but registered in another country would fall in

this category but would raise a more complicated set of legal issues. Some of

these issues are discussed below.

53 Restatement (Second) of Foreign Relations Law of the United States, Sec.

28(l), American Law Institute, 1965.

54 1944 Convention on International Civil Aviation, 61 Stat. 1180; T.I.A.S.

1591.
Office of Technology Assessment 31

such laws might not be independently applied by the courts.

2) Joint Jurisdiction and Control. Nations considering investing

a substantial portion of their financial, technical, and human resources in

the space station may wish to jointly own and register it through some type of

international joint venture. Under current international law, joint

registration (as distinguished from ownership) of space objects is not

provided for. Article VIII of the 1967 Outer Space Treaty establishes the

principle that “A State . . . on whose registry an object launched into space is

carried shall retain jurisdiction and control over such object. 1155 The 1976

Registration Convention maintains that where two or more states may be

considered “launching states, 1156 “they shall jointly determine which one of

them shall register the object . . . bearing in mind the provisions of article

VIII.”57 Under the Registration Convention then, participants in a joint

space endeavor must choose which one shall be the registering state.

Nonetheless, the Registration Convention also states that such a joint

determination is to be without prejudice “to appropriate agreements concluded

. . . among the launching States on jurisdiction and control over the space

object and over any personnel thereof."58 

Therefore, nations wishing to jointly own and

jurisdiction and control over a space station can follow

Convention’s suggestion to engage in an agreement separate

registration.

It is not clear now-- and may not be clear until

jointly exercise

the Registration

from the actual

a body of case

authority is available--just how “appropriate agreements” would modify the

“jurisdiction and control” granted by article VIII of the Outer Space Treaty.

The Registration Convention is patterned after maritime law. The 1958

Convention on the High Seas states that a ship may only sail under one flag

and, save in exceptional circumstances provided for by treaty, the flag state

has exclusive jurisdiction on the high seas.59 Both maritime law and space

55 1967 Outer Space Treaty, supra, note 6, article VIII.

56 Defined in article I of the Registration Convention as:

(i) A State which launches or procures the launching of a space object;

(ii) A State from whose territory or facility a space object is

launched.

57 The Registration Convention, supra, note 9, article II.

58 Ibid.

59 2 U.S.T. 2312; T.I.A.S. 5200. Article VI of the 1958 Convention states:

1. Ships shall sail under the flag of one State only and, save in

exceptional cases expressly provided for in international treaties, or in

these articles, shall be subject to its exclusive jurisdiction on the

high seas. . .

2. A ship which sails under the flag of two or more States, using them

according to convenience, may not claim any of the nationalities in

62-622 0- 86 - : ~L 3
32 Space Stations and the Law

law hold that registration implies jurisdiction. Similarly, both bodies of

law allow this presumption of jurisdiction to be rebutted by specific

agreements between the concerned parties. Although this practice has not been

extensively used in maritime law it could be used for the space station.

3) Jurisdiction and Control Over Independent Modules. It is

possible that nations may wish to join together to form a space station, yet

retain control over their individual contributions. A space station could

conceivably be composed of different modules, each owned, registered, and

under the jurisdiction and control of separate countries. Common elements of

the station such as power modules might be owned separately and shared through

specific agreement (option one, above) or jointly owned (option two, above).

In such an environment, each module would be under the jurisdiction

and control of the country that owned, operated, and registered it. The

problems with registering the common elements of such a station would be

similar to those encountered in option two.

4) Jurisdiction and Control by an International Organization.

Assuming nations would wish to avoid some of the problems caused by concurrent

national jurisdictions, it is possible that an international organization

similar to INTELSAT could be formed to own, operate, and register the space

station. Since such an organization would not be able to develop a completely

independent body of law to regulate space activities, it would still be

necessary to decide which national laws or combinations of national laws would

apply to the organization.

Such an organization could have quasi-legislative powers (subject, of

course, to the concurrence of the member states) similar to those held by

INTELSAT. Such powers would allow the organization to make normal

operational, management, and safety decisions without the need to renegotiate

separate agreements among the member states.

question with respect to any other State, and may be assimilated to a

ship without nationality.

Article 92 of the 1982 United Nations Convention on the Law of the

Sea contains language almost identical to the language of the 1958

Convention. The United States is not a party to the 1982 Convention.
Office of Technology Assessment 33

IV - INTELLECTUAL PROPERTY IN SPACE

A. Patent Law Issues

Congress is currently considering two patent law issues that could

have an important impact on space station activities: 1) how to protect the

intellectual property rights of private sector firms and individuals working

with the government in space; and 2) how to ensure that U.S. patent law

protections apply to space activities.

1) Intellectual Property Rights in Government/Private Sector

Space Activities

Section 305 of the 1958 National Aeronautics and Space Act (NAS Act)

states that “whenever any invention is made in the performance of any work

under any contract of [NASA] , such invention becomes the exclusive property of

the United States unless [NASA] waives rights thereto. ..”60 Over the last two

and-a-half decades NASA has interpreted section 305 to apply only to

activities which have as their main purpose the development of some new

product or process for NASA. With respect to NASA/private sector joint

ventures, it has been NASA’s position that neither party assumes any

obligation to perform inventive work for the other, and accordingly, each

party retains the rights to any invention

the venture .61

that may be made in the course of

One of the most significant ways in which the U.S. Government has

sought to encourage private sector materials processing activities in space

has been NASA’s Joint Endeavor Agreements (JEAs). The intellectual property

rights of the private participant of a JEA have, to date, been protected by

the contract provisions of the individual JEAs. For example, in the first

JEA, NASA and the McDonnell Douglas Corp. (MDAC) agreed that NASA would not

acquire rights in inventions made by MDAC or its associates in the course of

the joint endeavor unless MDAC failed to exploit the inventions or terminated

60 42 U.S.C. 2451, et seq.

61 Space Industrialization Act of 1979,” statement of Robert A. Frosch;

Hearings on H.R. 2337 before the Subcommittee on Space Science and

Applications of the House Committee on Science and Technology (96th Cong., 1st

sess., 1979).
34 Space Stations and the Law

the agreement, or unless the NASA Administrator determined that a national

emergency existed involving a serious threat to public health.

Although individually negotiated contracts may solve the problems

associated with NASA’s JEA program, some Members of Congress felt that U.S.

laws could be used to encourage commercial space activities. In 1985,

Congressman Manuel Lujan introduced a bi1162 that would use the patent system

to promote space commercialization by guaranteeing that inventions made in

space with Federal assistance or under Federal contract would be the exclusive

property of the inventor. The bill would allow Federal agencies to reserve a

nonexclusive, nontransferable, royalty-free license to use the invention on

behalf of the United States.63

As a proposal for domestic law designed to promote space

commercialization, H.R. 3112 is somewhat beyond the scope of this paper. It

is important to note, however, that there has been a great deal of recent

interest in government patent policy that may well affect space station

operations. One recently enacted law (Public Law 96-517) provides uniform

Federal patent procedures for small businesses and nonprofit organizations,

including universities. These entities, among other things, may elect to

retain title to inventions resulting from Federally funded research and

development. On February 18, 1983, President Reagan signed a memorandum that

directed executive agencies to revise Federal policy for all R&D contractors

to be consistent with Public Law 96-517. NASA and the Department of Energy,

which operate under statutes that are inconsistent with the memorandum, are

expected to make maximum use of the flexibility available to them to comply

with the spirit of the memorandum.

In the 99th Congress, S. 64 was introduced by Senator Robert Dole--a

principal sponsor of Public Law 96-517--to extend Public Law 96-517 to all

Federal contractors and to create uniform policy and procedures concerning

patent rights in inventions developed with Federal assistance. Should S. 64

be successful, it might resolve some of the concerns expressed in the Lujan

bill.

2) U.S. Patent Law and Space Activities

This section discusses how new legislation designed to extend U.S.

patent law to space has caused a reexamination of some old and fundamental

patent law issues. Resolving some of these issues--such as limitations on the

62 H. R., 3112 (99th Congress).

63 section 222 of H.R. 3112 states:

“(a) In any case where an invention is made by a person in the course of

activities of any kind in outer space, whether made with assistance from

one or more Federal agencies or in the course of work performed under

contract with one or more Federal agencies or otherwise, such invention

shall be the exclusive property of that person. . ."
Office of Technology Assessment 35

extraterritorial application of Us. patent law, the status of inventions

reduced to practice in foreign countries, and the status of foreign patents

and patent applications--may require changes in existing laws. This section

also examines how these issues are influenced by the different ways space

stations could be owned and operated.

Before examining the specific details of these issues, it is useful to

review a few basic principles of U.S. patent law.

In the United States, a patent may be obtained for a useful product or

process only if it meets the standards of “novelty” and “nonobviousness” when

“

65 

compared with the “prior art. When two or more persons independently claim

a U.S. patent on the same subject matter, U.S. law awards the patent to the

first person to invent. Most other countries maintain that the first person

to apply for the patent--not the first person to invent--is entitled to

receive the patent. Priority of invention under U.S. law is determined by

reference to certain key events such as when the invention was conceived and

when it was first reduced to practice. U.S. patent law does not allow these

events to be established by reference to activities in foreign countries.

Obviously then, how one characterizes space objects and how jurisdiction is

defined in space are critical patent law questions. An invention reduced to

practice on a foreign space station module--that might be regarded as a

foreign country--would be insufficient under U.S. law.

In an attempt to ensure that U.S. patent protection was available for

inventions in space, Representative Robert W. Kastenmeier introduced H.R. 2725

in the 99th Congress. 66 This bill would amend the current U.S. patent law and

the NAS Act to state: “any invention made or used in outer space on an

aeronautical and space vehicle [as defined in the NAS Act67] under the

jurisdiction or control of the United States

within the United States for the purposes of

The Kastenmeier bill is designed to

shall be considered made or used

this title.”

prevent the type of problem that

64 See generally: Barbara Luxenberg, “Protecting Intellectual Property in

Space: Policy Options and Implications for the United States, ” Georgia

Institute of Technology Conference; Atlanta, GA, May 16, 1985; Donald S.

Chisum, “Statement on H.R. 2725,” Hearing Before the Subcommittee on Courts,

Civil Liberties, and the Administration of Justice, House Committee on the

Judiciary, June 13, 1985.

65 35 U.S.C. 102, 103.

66 The current bill number is H.R. 4316.

67 Section 103 (2) of the National Aeronautics and Space Act of 1958 (42

U.S.C. 2451), states:

. . the term “aeronautical and space vehicles” means aircraft, missiles,

satellites, and other space vehicles, manned and unmanned, together with

related equipment, devices, components, and parts.
36 Space Stations and the Law

arose in the Cordova case. 68 Given the uncomplicated form and intentions of

H.R. 2724, the drafters and other concerned individuals anticipated that the

bill would engender little opposition or controversy. Asked to comment on the

effect of H.R. 2725 on current patent law, Gerald Mossinghoff, President of

the Pharmaceutical Manufacturers Association and former Commissioner of

Patents, stated: “the proposed amendment does not alter current patent law but

rather clarifies what would be a logical interpretation or extrapolation of

the current law.”69 With respect to the question of

law already covers space activities, Mr. Mossinghoff

logically reach a conclusion that activities aboard

tantamount to activities in the United States. ”70

Responding to the same questions, Herbert

whether current patent

responded: “one could

a U.S. spacecraft are

c. Wamsley, Executive

Director of Intellectual Property Owners, Inc., stated: “It is our impression

that many or most people believe U.S. patent law already extends to “outer

space. . under the jurisdiction and control of the United States. . . 1171

The U.S. Department of Justice took a different position from that of

either Mr. Mossinghoff or Mr. Wamsley. In a letter to Neil Hosenball, NASA’s

then General Counsel, Robert A. McConnell, Assistant General Counsel of the

Justice Department, argued that it was not at all clear whether activities on

a U.S. spacecraft could be viewed as activities in the territorial United

States, and therefore, U.S. patent laws might not apply to such spacecraft.

McConnell noted that the legislation would “effect a substantial amendment to

[the U.S. Patent Code] Title 35. ”

72 M r . McConnell stated the Justice

Department’s position that: “The patent laws do not currently have any effect

outside the territorial limits of the United States,” and that “the United

States is not liable for patent infringement arising in a foreign country. ”73

Although admitting that older cases (involving ships on the high seas and U.S.

68 AS mentioned above (note 44) such comparisons can be difficult since

criminal statutes are strictly construed.

69 Letter t. The Honorable Robert W. Kastenmeier, Chairman, Subcommittee on

Courts, Civil Liberties and the Administration of Justice, House Committee on

the Judiciary, from Gerald J. Mossinghoff, President, Pharmaceutical

Manufacturers Association, May 8, 1985.

70 Ibid.

71 Letter t. The Honorable Robert W, Kastenmeier, Chairman, Subcommittee on

Courts, Civil Liberties and the Administration of Justice, House Committee on

the Judiciary, from Herbert C. Wamsley, Executive Director of Intellectual

Property Owners, Inc., June 11, 1985.

72 Letter t. the Honorable S. Neil Hosenball, General Counsel, NASA, from

Robert A. McConnell, Assistant Attorney General, U.S. Department of Justice,

Oct. 11, 1984.

73 Ibid.
Office of Technology Assessment 37

embassie s in foreign lands) could be found on both sides of the

extraterritoriality issue, the Justice Department took the position that

recent court decisions express a clear intention to restrict the application

of the Patent Code to U.S. territory.

Mr. McConnell warned that in addition to amending the Patent Code, the

new legislation would also “expand the Government’s liability” because “both

the Navy and the Air Force have space programs which may be affected if NASA’s

proposal is adopted. ” More specifically, Mr. McConnell pointed out that the

United States is currently being sued by the Hughes Aircraft Co. for

infringing on one of its satellite patents. 74 In this case, the United States

plans “to argue with respect to about a dozen satellites that the patented

invention was never used in the United States” (emphasis added). If the U.S.

Government did not use the patent in the territorial United States, and if the

Justice Department interpretation of the Patent Code is correct, then the U.S.

Government could not be held liable on the infringement charge.

“If the Administration decides to support this proposal, ” Mr.

McConnell urged that it “be limited to that prospective application only.”

The current legislation, H.R. 2725, responds to the Justice Department’s

concern and limits the effect of the legislation.

Asked by the House Judiciary Committee to respond to the Justice

Department’s comments, the American Law Division of the Congressional Research

Service (CRS) took a slightly different position: “our review of the ‘state of

the law’ reveals that such an assertion. . . [that U.S. patent law would not

protect an invention made or used in outer space because those laws do not

have any effect outside the territorial limits of the United States] . . .is not

as clearly defined or applicable as. ..[the Justice Department’ s]. ..comment

would lead one to believe. The CRS memorandum goes on to say that, with

respect to the principal case cited by the Justice Department: “It would

appear that all the Court was saying was that it is not at all clear whether

74 Hughes Aircraft Company v. United States (Ct. Cl. No. 426-73).

75 Mr. McConnell was responding to an early draft of the legislation. The

Kastenmeier bill was amended to read:

(b) AMENDMENTS NOT TO AFFECT PRIOR DECISIONS. - The amendments made by

section 1 shall not affect any final decision made by a court or the Patent

and Trademark Office before the date of the enactment of this Act with respect

to a patent or an application for a patent, if no appeal from such a decision

is pending and the time for filing an appeal has expired.

(c) AMENDMENTS NOT TO AFFECT CERTAIN PENDING CASES. - The amendments made

by section 1 shall not affect the right of any party in any case pending in a

court on the date of the enactment of this Act to have the party’s rights

determined on the basis of the substantive law in effect before such date of

enactment.

76 Letter to David Beier, House Judiciary Committee, from Daniel Hill Zafren,

American Law Division, Congressional Research Service, Apr. 9, 1985.
38 Space Stations and the Law

Congress intended the patent laws to apply to a United States flag vessel or

plane, [and] that the patent bar might want to invite Congress to consider

such a possible ‘loophole’ ...”

The CRS memorandum concluded: “If a case can be made that the patent

laws could apply to an invention made or used on a United States’ flag vessel

on the high seas.. the contention would seem to be even more convincing

regarding a United States’ space vehicle in outer space." This view was

bolstered, in CRS’s view, by the U.S. participation in the 1976 Registration

Convention which was “designed to facilitate the exercise of jurisdiction and

control by a launching state over its space objects.”

In light of the case authority and the opinions of the majority of

legal scholars, the Department of Justice’s position on H.R., 2725 may not be

supportable.

Even disregarding the objections of the Department of Justice, there

are several important lessons to be learned from the debate over H.R. 2725.

The first is to recognize that when applying a body of terrestrial law in toto

to space activities, all the ambiguities and contradictions currently existing

in that body of law are also transferred. With respect to the

extraterritorial application of U s. patent law, unresolved questions

concerning the nature of U.S. jurisdiction over its flag ships and the status

of ships as “U.S. territory” must now be faced with respect to space objects.

Although the intent of H.R. 2725 is clear-- to apply U.S. patent protections to

inventions made or used in outer space on space vehicles under the

jurisdiction and control of the United States--the fact that this issue has

never been clearly resolved with respect to maritime law causes unforeseen

problems.

A second important lesson is to strive for functional consistency in

new legislation relating to space activities. As written, H.R. 2725 applies

to “space vehicle[s] under the jurisdiction or control of the United States."

This differs slightly from the scope of the “special maritime and territorial

jurisdiction” 77 which applies U.S. criminal law to “Any vehicle used or

designed for flight or navigation in space and on the registry of the United

States pursuant to the [1967 Outer Space Treaty] . . . and the [1976 Registration

Convention]. . . “78 H.R. 2725’s “jurisdiction= control” also differs slightly

from the Outer Space Treaty’s article VIII which speaks of nations retaining

“jurisdiction and control” over their space objects.

It is not clear that the space objects described here--those under the

“jurisdiction and control” of the United States (1967 Outer Space Treaty),

those under the “jurisdiction or control of the United States (H.R. 2725), and

those registered under the 1976 Registration Convention--are identical sets.

This is particularly true when one considers that article II of the

77 Discussed supra, p. 27.

78 18 U.S.C.A. Sec. 7.
Office of Technology Assessment 39

Registration Convention allows countries to enter into separate agreements

regarding jurisdiction and control, thereby creating a situation where someone

could have jurisdiction and control over a space object without having

registered it. Minor discrepancies in this and other space legislation could

result in unforeseen problems.

In addition to general jurisdictional questions, a number of specific

patent law issues must be addressed. For example, under current U.S. law ,

when there are conflicting claims to an invention, the person who invented

first has the valid claim. An applicant may not establish the date of

invention by reference to activity in a foreign country. H.R. 2725, if passed

into law, would allow an applicant to use activity aboard a U.S. spacecraft--

considered under the terms of the legislation to be “in the United States"--in

an interference proceeding to prove priority of invention. Activities on

foreign spacecraft would, presumably, be regarded as activities in a foreign

country. This might be the case even where the “foreign spacecraft” was

attached to an otherwise completely U.S. space station.

This report examined the four different ways in which a space station

could be owned, registered, and operated. With the exception of the U.S.

registry and, perhaps, those U.S. modules of a separate registry, H.R. 2725

might not apply to other jurisdictional regimes.

Another problem arises from the uncertain effect of H.R. 2725 on the

Inventions Secrecy Act .

8 0 The Inventions Secrecy Act states that, with

respect to inventions made in the United States, a person may not file an

application for a patent in a foreign country unless that person has already:

1) filed in the United States and waited 6 months; or 2) obtained a license to

file abroad from the Commissioner of Patents and Trademarks. Any patent

obtained in violation of the Inventions Secrecy Act is considered by the

United States to be invalid, although the Commissioner may grant a retroactive

license upon a showing of “inadvertence.”

The Inventions Secrecy Act presents some difficult problems for

foreign nationals working on a U.S. or jointly owned space station. For

example, a French astronaut who reduces an idea to practice on a U.S. space

station would be forced to file for a U.S. patent or an exemption from the

Act, or risk having the patent being declared invalid in the United States.81

To the extent that such problems could limit the success of the space station,

every effort must be made to achieve some type of international coordination.

79 35 U.S.C. 104.

80 35 U.S.C. 181-188.

81 Letter t. The Honorable Robert W, Kastenmeier, Chairman, Subcommittee on

Courts, Civil Liberties and the Administration of Justice, House Committee on

the Judiciary, from Donald S. Chisum, Professor of Law, University of

Washington, June 18, 1985.
40 Space Stations and the Law

- CRIMINAL LAW IN SPACE

Any investigation into the application of criminal law to activities

in space must address two interrelated questions: “What body of criminal law

is to be applied?”; and “How are the relevant laws to be enforced?”

A. Jurisdiction and Control

The simple answer to the first question is: “Whatever nation has

jurisdiction and control over the space object. ” As discussed in detail

above, questions of jurisdiction are not easily resolved without first knowing

how the space station is to be owned and registered. If some type of shared

jurisdiction and control scheme is used, and if more than one nationality is

represented in the crew, it is possible that there would be more than one body

of criminal law that could be applied. In that case, the nations involved

might wish to agree in advance to adopt one nation’s laws, a special criminal

code composed of the laws of several nations, or a special set of “conflict of

law” rules for applying different national laws in different situations.

It is also important to remember that jurisdiction can be based on

more than ownership and registration. In principle, all a nation need do is

establish a genuine link between itself and the persons, property, or events

over which jurisdiction is claimed. As a result, should a French astronaut

assault a German astronaut on a U.S. space station, both the French and German

courts, relying on the nationality principle, and the U.S. courts, relying on

the territorial principle, might claim that they had the right to exercise

criminal jurisdiction over the French astronaut who committed the crime.

In light of these difficulties, it might be desirable to simply

negotiate an agreement in advance of occupying the space station. Negotiated

agreements have been used effectively to govern the activities of diplomats

and soldiers stationed in foreign lands. Since article II of the Registration

Convention allows nations to enter into separate agreements with respect to

jurisdiction and control over space objects and personnel, this might be an

effective way to manage criminal actions in space, at least with respect to

the first space stations. In the past, three basic options have been used:

o Complete Immunity From Prosecution - Assuming that one

nation’s laws are chosen to govern the space station, other nations might wish

to protect their space station astronauts with immunities similar to those

enjoyed by diplomats. Under such a scenario, the individual governments would

be responsible82 for the good conduct of their citizens but individual
Office of Technology Assessment 41

citizens could not be charged for civil or criminal offenses committed while

on the space station. Astronauts on board the spacecraft of another nation

would, then, have the status of diplomats in a foreign land.

o Limited Immunity - If complete immunity were judge d

undesirable, nations might wish to negotiate more limited agreements. For

example, individuals might be liable for actions not accomplished as part of

their “official duty.” Alternatively, individuals might be liable for civil

wrongs but immune to criminal prosecution.

o Negotiated General Agreement - The nations of the North

Atlantic Treaty Organization (NATO) have developed a complex set of agreements

(Status of Forces Agreements) to govern questions of jurisdiction and control

with respect to NATO troops stationed in the respective countries. These

agreements grant the host countries exclusive jurisdiction over some offenses

and grant concurrent jurisdiction over others. Where concurrent jurisdiction

exists, one nation may be given primary jurisdiction which may be waived, at

its discretion, in favor of some other nation. Such negotiated agreements

would be useful whether jurisdiction and control of the space station were

held by one nation, several nations, or whether nations retained control over

individual modules.

B. Ability to Enforce Criminal Laws

It is important to remember that a state having the jurisdiction t.

prescribe a rule of law may not, in all cases, have jurisdiction t. enforce

that rule. In the Case of the S. S. Lotus,83 a French merchant vessel struck

a Turkish vessel on the high seas killing a number of Turkish nationals. When

the French vessel landed in a Turkish port, a French officer was tried and

convicted for manslaughter under a Turkish law attaching criminal penalties to

collision on the high seas. 84 The Permanent Court of International Justice

held that the Turkish vessel was like Turkish soil; therefore, Turkey had the

jurisdiction to prescribe the criminal laws which had been applied to the

French officer. Because the French officer later landed on Turkish soil,

Turkey had the jurisdiction to enforce the laws in question. Had the French

ship not landed in a Turkish port, this would not have affected the right of

the Turkish Government to prescribe the rule in question but it would have

82 Such "responsibility might or might not include financial “liability” for

actions committed aboard a space station.

83 P.C.I.J., ser. A, No. 10 (1927); [1927-1928] Ann. Dig. 153 (No. 98),

84 While the offense of manslaughter occured on the high seas, the Turkish law

was much broader, encompassing any offense ‘abroad’ against Turkey or a

Turkish national. The Turkish law reflected an acceptance of the passive

personality principle (discussed above, note 38). This principle is not

recognized by the United States except in extraordinary cases such as

terrorism.
42 Space Stations and the Law

altered its ability to enforce that rule.

Although the decision in the Lotus case is no longer a valid precedent

in maritime law, 85 it does serve to highlight several important space station

issues. For example, suppose the United States and Great Britain jointly own

a space station but maintain jurisdiction and control over their separate

space modules. Now, further suppose that a British astronaut assaults a U.S.

astronaut while the U.S. astronaut is in the British module. There is no

doubt that the United States would have the jurisdiction to pass laws

prohibiting such conduct; whether the United States would have the

jurisdiction to enforce such rules would depend on whether it had some prior

agreement with the British Government. Lacking an agreement with the British

Government, the United States would not have jurisdiction to enforce these

laws in the parts of the space station under British jurisdiction and control.

c. U.S. Criminal Law in Space

Initially, NASA regulations were the primary means by which U.S. law

was extended into space. The authority to develop these regulations was

granted to the Administrator in the 1958 NAS Act. As currently written,

these regulations grant the shuttle commander broad authority over U.S. and

foreign crew members to enforce order and discipline during space shuttle

flights. 87 In 1976, NASA’s administrative regulations were strengthened by

85 Article XI of the “Convention on the High Seas,” Apr. 29, 1958 (13 U.S.T.

2312; T.I.A.S. 5200) states:

1. In the event of a collision or of any other incident of navigation

concerning a ship on the high seas, involving the penal or disciplinary

responsibility of the master or of any other person in the service of the

ship, no penal or disciplinary proceedings may be instituted against such

person except before the judicial or administrative authorities either of

the flag state or of the state of which such person is a national.

See also: 1982 United Nations Convention on the Law of the Sea, article

97.

86 Section 203 (c) states: “... the Administrator is authorized. . .to make,

promulgate, issue, rescind, and amend rules and regulations governing the

manner of [NASA’S] operations and the exercise of the powers vested in it by

law”; (42 U.S.C. 2473).

87 14 C.F .R . 1214 702 (1972) states:

2. (a) During all phases of an STS flight, the STS commander shall have

the absolute authority to take whatever action is in his/her discretion

necessary to (1) enforce order and discipline, (2) provide for the safety

and well being of all personnel on board, and (3) provide for the

protection of the STS elements and. . payload. . .The commander shall have

authority throughout the flight to use any reasonable and necessary means

including the use of physical force, to achieve this end.

(b) The authority of the commander extends to any and all personnel

on board the Orbiter including Federal officers and employees and all
Office of Technology Assessment 43

the introduction of criminal sanctions, which stated:

Whoever willfully shall violate, attempt to violate, or conspire to

violate any regulation or order promulgated by the [NAS A]

Administrator. . . shall be fined not more than $5,000, or imprisoned not

more than one year, or both.88

NASA regulations and their related criminal sanctions were sufficient

to maintain order when the only people in space were highly trained and

disciplined NASA astronauts carrying out closely supervised tasks. Congress,

looking forward to a time when large numbers of men and women would work in

space for long periods of time in a relatively unstructured environment,

amended the United States code in 1981 to include U.S. space vehicles within

the “special maritime and territorial jurisdiction "89 of the United States.

The inclusion of U.S. space vehicles within this special jurisdiction meant

that, in addition to NASA regulations, a range of more common criminal

offenses would be applicable to people living and working in space. 90 91

other persons whether or not they are U.S. nationals.

For another look at the role of the space station commander, see: Scott

F. March, “Authority of the Space Station Commander: The Need for Delegation, ”

Glendale Law Review, vol. 6, No. 1, 1984.

88 18 U.S.C. 799.

89 The “special maritime and territorial jurisdiction” is discussed above, p.

27.

90 U.S. military personnel will also be subject to the jurisdiction of the

Uniform Code of Military Justice (10 U.S.C. 805 (1976)) which applies “in all

places.”

91 AS a result of the 1981 amendment, the following activities, if conducted

in space, would be regarded as Federal crimes: arson (18 U.S.C. 81), assault

(18 U.S.C. 113), maiming (18 U.S.C. 114), embezzlement and theft (18 U.S.C.

661), receiving stolen property (18 U.S.C. 662), false pretenses (18 U.S.C.

1025), murder (18 U.S.C. 1111), manslaughter (18 U.S.C. 1112), attempted

murder or manslaughter (18 U.S.C. 1113), malicious mischief (18 U.S.C. 1363),

rape (18 U.S.C. 2031), and robbery (18 U.S.C. 2111).
44 Space Stations and the Law

VI - TORT LAW IN SPACE

A. Applicable Law

As people begin to live and work in space, incidents of damage caused

by intentional actions or negligence are certain to occur. Individuals

seeking compensation for damage to property or personal injury may look either

to international space law or to the tort laws of their own or other nations.

Unfortunately, none of these courses of action is without difficulty. Current

international space laws are little more than agreed fundamental principles,

and no efficient mechanisms exist for applying these principles to specific

cases. National tort laws, on the other hand, are well developed but vary

drastically from country to country. In the United States, certain elements

of tort law are not even consistently applied among the different States.

Furthermore, some States have recently enacted legislation that limits the

recovery of certain types of damages in tort suits.

1) International Law

As discussed above, article VI of the Outer Space Treaty provides that

states party to the treaty bear “international responsibility for national

activities in outer space,” and that the activities of “nongovernmental

entities” (i.e., individuals, corporations, etc.) “shall require authorization

and continuing supervision by the appropriate State Party to the Treaty. ”

Article VII of the Outer Space Treaty declares that a launching state is

“internationally liable for damage to another State Party to the Treaty or to

its natural or juridical persons. .." The 1973 Liability Convention restates

and expands on the principles established in article VII of the Outer Space

Treaty and provides specific procedures for making and settling claims.

Although the Outer Space Treaty and the Liability Convention establish

several key principles--e.g. , absolute liability for damage on Earth or in the

air, and liability of the launching state for either government or private

sector activities--both treaties leave a great many questions unanswered.

Three important problems raised by the current international space liability

regime are:

o Uncertain applicability to activities aboard space stations. There is

considerable doubt as to whether the Liability Convention could ever

be applied to injury or damage caused by persons participating in

space station activities. Article VII states that the Convention does
Office of Technology Assessment 45

not apply to either the “nationals of [the] launching state” or

“foreign nationals. . participating in the operation of that space

object. . . “ This paper previously examined four different ways to own,

operate, and register a space station. No matter which of these was

chosen, it is likely that the participants would either be “nationals

of [the] launching state” or “foreign nations. ..participating in the

operation of that space object. . . “ Therefore, the Liability

Convention would not apply. For example, under article VII of the

Liability Convention, if a U.S. astronaut were killed by the

negligence of either another U.S. astronaut or a foreign astronaut,

the family of the U.S. astronaut could not file a claim for damages

under the Liability Convention because the United States was the

“launching state.”

o Lack of attention to damage caused by, and the liability of,

individuals. 92 Both the Outer Space Treaty and the Liability

Convention focus on damage caused by space objects rather than on

damage caused by individuals in space. This is understandable because

the primary concern of the drafters was probably to offer some degree

of protection from falling or colliding space objects. The crash of

the radioactive Soviet satellite, Cosmos 954, in Canada was an example

of the kind of injury best suited to the protections of the

international treaties.

On a space station, however, individual personal injury actions

resulting from intentional actions or negligence are likely to

predominate. A good example of the Liability Convention’s lack of

attention to the role of individuals in space can be seen in its

application of the doctrines of “strict” and “fault” liability.

According to the terms of the treaty, a launching state whose space

objects cause damage on the surface of the Earth or to aircraft in

flight is strictly liable for the damage caused. States whose space

objects cause damage to other objects in space are liable only after

fault has been established. However, no such division between strict

liability and fault liability is made with respect to individual

conduct.

It is generally held, at least in common law countries, that strict

liability a plies to certain abnormally dangerous conditions and

activities . 94 Since , at present, most space activities might be

92 See also: Hamilton DeSaussure, P.P.C. Haanappel, “A Unified Multinational

Approach to the Application of Tort and Contract Principles to Outer Space,”

Syracuse Journal of International Law and Commerce, vol. 6, No. 1, summer

1978.

93 “Strict” and “fault” liability explained, supra, note 22.

94 DeSaussure and Haanappel, supra, note 92.
46 Space Stations and the Law

regarded as “abnormally dangerous .95 one might argue that “fault”

should play a diminished role in space.96 On the other hand, one

could also argue that all persons on the space station are to some

degree engaged in an “abnormally dangerous” activity and that this is

quite different from the situation on Earth where the injured party

might not be a participant in the activity in question.

o No efficient mechanism for resolving disputes between individuals.

Serious questions exist as to whether current international laws could

be applied to assist individuals. The 1967 Outer Space Treaty and the

Liability Convention establish no cause of action, no courts, no rules

of procedure, and no method of enforcing even agreed resolutions.

Lacking such mechanisms, claimants are forced to rely on the

diplomatic procedures commonly used between nations.

Article VIII of the Liability Convention requires that the state--not

95 It is useful t. remember that when the aviation industry began, some courts

regarded air travel as abnormally dangerous and imposed a strict liability

standard; with experience and technical improvements, the negligence standard

gradually gained prominence.

96 It might be argued that eliminating the necessity to prove fault and

thereby forcing all actors in space to cope with a strict liability scheme

would be socially desirable for many of the same reasons that strict liability

is used on Earth; that is, to make those engaged in dangerous activities

liable for the consequences of such activities. However, such a requirement

could diminish the pursuit of commercial space opportunities by placing a

heavier liability burden on these activities.

97 Maritime law offers some interesting insights into the question of

liability for injury to individuals on board a space station. Under maritime

law, the shipowner must furnish a vessel that is seaworthy in all respects.

(see: Mitchell v. Trawler Racer, Inc., 362 U.S. 539.) The shipowner’s duty is

nondelegable and the fact that the shipowner used ‘due diligence’ to make the

vessel seaworthy is no defense if a member of the ship’s crew is injured by

some defect. What constitutes a defect has been broadly construed, and so has

the question of who is a seaman for the purpose of bringing an unseaworthiness

action.

The concept of ‘seaworthiness’ --or in this case, ‘spaceworthiness’ --may

eventually be a useful addition to space law, as it could serve to protect

space workers and transfer the risk of liability to the spacecraft owner, who

presumably, is in a better position to assess the risks of a particular

activity.

With respect to liability as between spacefareres, the concept of fault may

be more useful. How fault would be determined and what defenses would be

permitted (e.g. , contributory negligence, fellow servant rule, assumption of

risk) are some of the most challenging questions that are likely to accompany

the development of a tort law for space.
Office of Technology Assessment 47

the injured person--present the claim to the “launching state"--not

the person 98 who caused the injury. Because nations and not

individuals are involved, under article IX, claims for compensation

must be presented “through diplomatic channels." If the two states in

question do not have diplomatic relations then the claimant may

present its claim through another state or through the SecretaryGeneral of the United Nations. Assuming that a claim has been filed

and diplomatic negotiations have failed for a year, then article XIV

authorizes the parties to set up a “Claims Commission” composed of

three members (the two parties and an agreed chairman).

2) National Tort Laws

Perhaps in anticipation of the problems mentioned above, the drafters

of the Liability Convention stated in article XI that: “Nothing in this

Convention shall prevent a State, or the natural or juridical persons it might

represent, from pursuing a claim in the courts. ..of a launching state.”

Indeed, given the vague nature of the Liability Convention as compared with

the well-defined state of domestic law, it would be unlikely that any

individual would ever use it to obtain compensation for injury.

Having acknowledged this, it is then necessary to inquire which

domestic laws would be applicable to a given case. Whenever individual

relationships transcend the boundaries of one jurisdiction, conflicts arise

concerning the applicable substantive law, the jurisdiction of national

courts, and enforcement of foreign judgments. 100 For example, every nation

has its own methods for choosing the law applicable in a specific case. The

most common of these are:

o The lex loci delecti, that is, the law of the place where the

offense occurred. Outer space, being res communis and, therefore, not

subject to national law, has no clear ‘law of the place. ‘ Whether or not

the lex loci delecti rule can be applied to the space station will depend

on how nations agree to exercise jurisdiction and control over the space

station.

o The lex fori, that is, the law of the forum where the case is

brought. This approach could be used on the space station, but again,

would depend on how questions of jurisdiction and control are resolved.

98 The treaty does not actually speak of “persons” who cause damage, only

“space objects” which cause damage.

99 see, for example: Scott F. March, “Dispute Resolution in Space,” Hastings

International and Comparative Law Review. vol. 7, p, 211, 1983,

100 See generally: P.P.C. Haanappel, “Possible Models for Specific Space

Agreements,“ Hamburg Space Station Symposium, 1984.
48 Space Stations and the Law

o The law of the state having the greatest interest. This

rule-- probably the prevailing U.S. standard--looks to which state’s

contacts with the incident are the most substantial and applies the

relevant laws of that state, Because of its flexibility, this rule could

have the greatest applicability to space station activities.

An important alternative (at least in contract, if not in tort cases)

would be for the parties to stipulate both the applicable national law, and

the applicable forum. This practice is frequently followed in multinational

business contracts. This approach has two major defects. First, such

stipulations would constrain only those who signed them. As space stations

become larger, employing greater numbers of people, it may be impossible to

anticipate and draw up contracts to cover all the interpersonal relationships

that could develop. Second, some courts look with disfavor on contracts that

attempt to divest them of jurisdiction. For example, a French citizen has a

statutory right to resort to the French judicial system even if the damage was

caused on foreign soil or by a foreigner. 101 It is possible that a French

court would choose to ignore a contract clause that attempted to divest its

citizens of this right.

Given the current level of space activity, another solution to the

problem of liability might be to negotiate interparty waivers of liability.

The limitation of such agreements is that they only cover signatories.

Interparty waivers of liability were used in the 1973 Spacelab Agreement,102

the 1985 Memorandum of Understanding (MOU) regarding Phase B of the space

station negotiations, and are regularly used in shuttle launch agreements.

Article 11 (A) of the Spacelab Agreement, for example, provides that

the United States “shall have full responsibility for damage to its

nationals. . . [resulting from] ...this agreement. ” The ESA nations accept a

similar “responsibility” under this article. In other words, the United

States would not sue ESA for damage to U.S. nationals or property and vice

101 Fr. C. CIV. art. 14, reprinted in H. De Vries, N. Galston, R Loening,

Materials for the French Legal System 2, 2d cd., 1977. Article 14 provides:

An alien, even one not residing in France, may be summoned before the

French courts for the fulfillment of obligations contacted by him in

France; he may be brought before the French courts for obligations

contracted by him in a foreign country toward French persons.

Under French law “obligations” refers to tortious (delictual) as well as

contractual obligations. See also: DeSaussure and Haanappel, supra, note 92.

102 Space Laboratory: Cooperative program, 24 U.S.T. 2049; TIAS 7722.

103 See: “Memorandum of Understanding Between the National Aeronautics and

Space Administration and the European Space Agency for the Conduct of Parallel

Detailed Definition and Preliminary Design Studies (Phase B) Leading Toward

Further Cooperation in The Development, Operation and Utilization of a

Permanently Manned Space Station, ” June 3, 1985.
Office of Technology Assessment 49

versa . However, article 11 (C) acknowledges that in the event injury is

caused to persons not party to the agreement, “.. .such damage shall be the

responsibility of. ..[the United States or ESA]. ..depending on where the

responsibility falls under applicable law.” The 1985 space station MOU

between NASA and ESA extends the interparty waiver of liability to the Phase B

contractors and subcontractors; however, third parties are still not covered

under the agreement.

B. Future Developments

Current international space law will continue to be an effective means

for allocating responsibility and liability for incidents which occur between

nations. For example, should a space object of one nation fall on the

territory of another nation or should one nation’s space object collide with a

space object of another nation, the principles found in the 1967 Outer Space

Treaty, the Registration Convention, and the Liability Convention will, when

combined with serious diplomatic efforts, be sufficient to resolve these

problems. As space activities increase and technologies grow more complex,

some refinement of these principles will probably be necessary; nonetheless,

the existing framework is workable when applied to national activities.

Unfortunately, the legal regime for redressing individual grievances

resulting from space activities is not nearly so well established. As

discussed above, international space law, with its heavy reliance on

diplomacy, is too unwieldy for most tort actions between individuals, and

negotiated interparty waivers of liability do not address the problem of

third-party plaintiffs.

National tort laws, although well defined, differ considerably and no

consensus exists on when to apply the laws of one or another nation. The

actions necessary to resolve this problem vary with time:

o Short-term solutions (shuttle activities). Because the

shuttle carries multiple and often multinational payloads, NASA has had to

develop policies regarding both liability between mission participants

(interparty liability) and liability with respect to parties unrelated to the

mission (third-party liability) . 104 With respect to interparty liability, the

standard shuttle launch agreement contains a mutual covenant not to sue

similar to the one found in the Spacelab Agreement.

To cover the possibility of third-party suits, NASA also requires

shuttle payload owners to purchase insurance to protect against damage to

property and injury to persons unrelated to the space activities. This thirdparty insurance would, for example, be used to compensate individuals on Earth

for damage they sustained as a result of de-orbiting space debris.

104 See: Maj . Bruce A. Brown, “Commercial Law and Liability Issues of the

Space Transport System, ” The Air Force Law Review, vol. 23, Nos. 3 & 4, 1982-

83, p. 424.
50 Space Stations and the Law

The liability procedures currently used by NASA are sufficient while

the U.S. Government operates the shuttle, the shuttle crews are small and

well-disciplined, and commercial insurance is available.

105 As space

activities become more complex and numerous, existing procedures will have to

be reexamined.

o Medium-term solutions (government space stations). Liability

issues on the first generation of government-owned space stations could be

handled by using the methods similar to those NASA now employs on the shuttle.

The space station owner and operator, whether it be one nation or a consortium

of nations, could require all other nations to waive their right to sue each

other and require all participants to self-insure or purchase commercial

insurance for third-party claims.

As space stations grow in size and complexity and become staffed by

civilian employees, it will probably be necessary to develop more flexible

rules for compensating individuals injured in space. A logical next step

might be to negotiate international agreements similar to the NATO Status of

Forces Agreements that would designate which nation’s laws would apply in

which situations. As mentioned above, it is not clear whether all national

courts would feel constrained to respect these contracts.

o Long-term solutions (private space stations and beyond).

Eventually, space travel will be quite common and individuals may visit

neighboring space stations much as we now visit neighboring countries. A rule

could develop which places on the space traveler the burden to know the law of

the place visited; that law would govern all civil and criminal actions

resulting from the traveler’s visit. Alternatively, nations may strive to

achieve international uniformity in the application of ‘conflicts rules. ‘ The

1955 “Hague Convention on the Law Applicable to the Sale of Corporeal Moveable

Objects” and the 1973 “Hague Convention on the Law Applicable to Products

Liability” are examples of such attempts. In the 1973 Products Liability

Convention, nations agreed to apply the law of the habitual residence of the

victim, or subsidiarily, the law of the place where the damage has occurred.

Similar international agreements for applying Earth law to space activities

may be necessary. Finally, nations may attempt to create a uniform

substantive tort law system for activities in outer space. 107

105 There is considerable concern about the long-term health of the s

insurance industry. See: “Insurance and the Commercialization of Space,“

Senate Committee on Commerce, Science, and Transportation; 99th Cong., 1st

Sess. , S. Print 99-16, March 1985.

106 P.P.C. Haanappel, “Product Liability in Space Law,” Houston Journal of

International Law, vol. 2, No. 1, autumn 1979, p. 61.
Part II

Workshop Proceedings
I - CHALLENGES AND OPPORTUNITIES

A. Introduction

In April 1985, the Subcommittee on Science, Technology, and Space of

the Senate Committee on Commerce, Science, and Transportation requested the

Office of Technology Assessment to prepare a background paper that would

examine the legal issues resulting from space station activities. Having

completed a draft of this report, OTA held a workshop on May 2, 1986 to review

the findings of the draft and to investigate other related issues. The

workshop participants included lawyers from NASA and the European Space

Agency, as well as legal experts from Canada, the Federal Republic of Germany,

and Japan. In addition, a wide range of U.S. legal experts from academia,

industry, private practice, and the government also attended.

Throughout the day-long workshop many legal issues were discussed and

aggressively debated. No attempt was made to reach a consensus on particular

issues, although in some cases agreements on fundamental principles evolved

spontaneously. Most significantly, the panel agreed that:

1) Multinational space station activities will raise fundamental

legal issues. The laws we take for granted on Earth--e.g. , those that

regulate commerce, property, criminal activity, and personal interactions--may

not be available in space or may conflict with similar laws held by other

nations.

2) The United States should not attempt to fashion a novel ‘space

code’ to cover all space station activities; rather, legal problems should be

solved incrementally by the careful application of intergovernmental

agreements, congressional action in the form of legislation, and, finally, the

decisions of the highest courts of the land.

3) Determining jurisdiction (i.e., deciding which nation has the

right to make and enforce rules of law) is the single most important legal

question to resolve in the planning stage for the first space station.

Although a legal concept, jurisdiction with respect to an international space

station will involve important--and sometimes overriding--technical and

foreign policy considerations.

4) Under the Constitution of the United States, most laws affecting

1 Letter from Senators John C. Danforth, Slade Gorton, Ernest Hollings, and

Donald W. Riegle, Jr. , Senate Committee on Commerce, Science, and

Transportation, to John H. Gibbons, Director, Office of Technology Assessment,

Apr. 22, 1985.
54 Space Stations and the Law

the rights of individuals (e.g., personal injury, contracts, property, wills

and estates, employee’s compensation, etc.) are State laws, not Federal laws.

Since the substance of State laws varies considerably, it is essential that

the jurisdiction of State courts and the applicability of State law to space

station activities be determined clearly.

Although there was agreement on these general points, there was strong

disagreement over which specific issues needed to be examined first and

whether those issues needed to be resolved now or when they resulted in a

mature case or controversy,

This report documents the issues that were discussed, the agreements

and disagreements that surfaced, and the advice and words of caution offered

by the participants during the workshop. It is- -and on this point all the

participants would agree--merely an early step in a long process that will

require the close attention and hard work of talented individuals in the

executive, legislative, and judicial branches.

B. Priorities in Decisionmaking

The panelists generally agreed that there was a wide range of legal

issues to be addressed and that the resolution of these issues should be

thought of as a process in which some things needed to be done now while other

things could be done later. Nonetheless, there was substantial disagreement

over the severity of specific problems and over the list of problems which

required immediate attention. The wide range of viewpoints on this subject

resulted, in part, from the fact that the panelists took three different

approaches to the problem:

o Technological approach - Some panelists took the position that the

legal issues could not be adequately addressed without first understanding the

technology involved in a manned space station. They stressed that once one

understood the physical structure, the unique demands, and the purpose of the

space station, certain issues would tend to resolve themselves. For example,

some theoretical problems of jurisdiction might turn out to be irrelevant if

safety issues were to dictate a specific type of centralized control.

Likewise, advanced communication and control technologies that would permit

nations or private firms to transfer information to their own ground stations

might go a long way toward resolving some troublesome intellectual property

problems. These panelists maintained that once one understood space station

technology, then one could establish an appropriate institutional arrangement.

Once the institutional arrangement was in place, additional legal issues could

be resolved through a variety of means including agreements between the

concerned parties and appropriate domestic legislation.

o Political approach - Other panelists argued that the political issues

surrounding the space station were the most important. They suggested that

one had to first determine whether the space station was going to be a U.S.
Office of Technology Assessment 55

space station with international participation or a truly international space

station. Once one reached common ground on the institutional arrangement,

then one could discuss the technical and the legal implications. They

suggested that since jurisdiction was the most significant single legal issue,

it must be resolved first, and that resolution of the jurisdiction question

would clear up many other issues.

o Incremental or ‘practical’ approach - The majority of the participants

took an incremental or practical approach to resolving legal issues. They

pointed out that certain problems would result from the technologies chosen

for the space station, others would result from the institutional arrangement

chosen by the parties, and still others would be generic to all space

activities. They noted that it is difficult for lawyers to work without

facts, and suggested that only with operational experience could the true

nature of certain legal problems be understood.

They thought that many of these problems would be resolved through a

series of unrelated international agreements, domestic legislation, and

private contracts. As time passed, other unique problems would arise but

these could be resolved on an ad hoc basis using the legal tools that were

developed incrementally.

c. Responsive v. Preventive Legislation

Advocates of the ‘incremental’ approach were almost evenly divided on

the question of whether domestic and international law should respond to

immediate problems or attempt to prevent problems from occurring. Some argued

simply that: “If it isn’t broken, let’s not fix it;” others responded that we

already had a pretty good idea of where the system was going to break down;

therefore, we ought to work to prevent this from happening.

1) The arguments for responsive legislation

Those who supported responsive legislation often did so because they

thought that law should not race too far ahead of experience. One panelist

pointed out that,"a space station is at least. . .8 years away. Even as slowly

as Congress sometimes works. ..many of these [issues] are going to be

[resolved]. ” The panelist noted that although we already know that certain

issues, such as criminal law and jurisdiction, will need to be resolved, “We

can better address [these issues] ...once we really know what. ..the space

station is going to be.”

Other panelists expressed concern that attempts to develop domestic

laws and international agreements in advance of real problems might

unnecessarily restrict our future options. Citing the specific example of

patent law, one panelist noted, “that’s fine for the shuttle because the

shuttle is flying and, in fact, some inventions have already been discovered

as a result of the shuttle. . . [But] maybe you will not want the same kind of

legislation [for the space station]. ”
56 Space Stations and the Law

Another panelist concurred, noting that one might not want the same

rules and regulations for a space station used solely for government research

and development as one would want for a purely private sector space station

engaged in commercial operation. The panelist argued that we may not want

arrangements for this space station to govern our activities on other future

space stations: “... the arrangements we work out for this particular space

station--which will. . . [reflect].. how a particular set of governments decides

it wants to handle these matters --need not govern. . . another space station that

the U.S. puts up. . with a completely different set of governments.”

Supporters of responsive legislation believed that the majority of

potential legal problems could be resolved by the interested parties through

the use of intergovernmental negotiations or private contracts. Although

acknowledging that one needed a “backdrop of tort law, criminal law, [etc.]

that you. . . take for granted here on the ground. ..,” one representative from

the business community maintained that, to control liability, “I would look

first at the contractual area. ..negotiating a relationship with the

government, with other contractors, that laid out in very great detail who

would suffer what loss in what eventuality.” The panelist noted, “the interparty waiver of liability that NASA has in its launch service agreement. . does

a very good job of. . . creating a lawyer’s anti-employment act. It really does

force parties to face up to the fact that they might lose what they are

investing, and that they have to accept that.” One of the disadvantages of

this approach is the high cost and limited availability of insurance, “But on

the other hand, it really sets out things pretty clearly, and that’s a big

advantage for a business. ”

The panelist urged a practical approach: “look at exactly what’s

involved in the space station, the fact that you have fewer people on the

station than you have in this room. . . [that all are healthy, pre-screened, and

constantly monitored] . . .Put all that together and I think you have the kind of

situation where the contractual issues really take on a great predominance.

..YOU don’t expect to have crimes,” he argued, “YOU don’t expect to have

torts.”

The panelist ended by recommending that the laws for the space station

be based on contract and negotiation supplemented by national laws (for

criminal law, tort law, etc.) and international arbitration as the need

arises.

2) The arguments for preventive legislation

Many panelists rejected the notion that legislation should merely

respond to, rather than try to prevent, problems. They contended that such a

policy would: 1) increase uncertainty thereby decreasing the private sector’s

interest. in investing in space; and 2) offer no guidance on which, if any, of

the laws currently on the books in the United States (the so-called ‘legal

backdrop’ acknowledged as necessary by the proponents of reS p On S i V e

legislation) would apply to space station activities.
Office of Technology Assessment 57

Panelists representing the U.S. firms interested in doing research in

space stressed that: “In regard to some of these issues, [e.g., intellectual

property, product liability, and antitrust], American business would take the

position that you [must act] now.” Although the space station is 8 years

away, “business decisions are being made today that will impact the space

station, how it operates, under what laws it operates and those decisions

can’t go a’begging or the station will get up there and it won’t have any

customers or inhabitants other than the lawyers maybe, still arguing [these]

point[s] .“

According to one panelist, legal advice is an integral part of the

decisionmaking process in his company: “There isn’t a division operating

committee meeting. . . that goes by that I don’t give some advice at a very early

and formative stage in respect to some new product ...Whether the first step

should be taken, oftentimes, will depend on what legal opinion I give them. . .“

He stressed that U.S. business: “Can’t wait for the scientists to figure it

out or until the marketing people decide how best to sell it.” Other

panelists representing the private sector declared that they wanted to have

certain ground rules made clear, such as how intellectual property would be

protected or what would be a company’s recourse in the face of industrial

espionage by nationals of another country.

Although these panelists said they understood the importance of

allowing certain legal rules to evolve over time, they emphasized that a

balance must be struck that recognized business’ need for certainty. One

panelist said that his firm could operate without “certainty,” but that they

would like some “reasonable expectation of what would result if a legal

dispute arises. ” At a very minimum, they would like to know which countries’

laws were going to apply.

Some panelists stressed that we need to acknowledge that we are making

decisions and developing principles that will have a strong influence over our

future activities. These panelists rejected the notion that the ad hoc

agreements entered into and the legal principles developed for this space

station will not bind us in the future. “We should proceed as though what we

do now will be at least considered in future negotiations, ” the panelist

explained, “there will be the usual disclaimers [saying that these decisions

apply only to this first space station], but... as a practical matter we need

to proceed as though we are [establishing important precedents].“

Panelists generally agreed that the two most important domestic issues

for the United States would be: 1) which State’s laws would apply in a

particular situation; and 2) which current laws would apply to space without

special legislation. Although neither of these concerns necessarily involves

the development of new legislation, they both present serious problems. For

example, product liability law varies substantially from State to State. If a

person from Nevada is injured on the space station by equipment manufactured

aboard the space station by a Delaware corporation, which State has

jurisdiction over the injury and which State law does the judge apply?

In addition, there has to be a way to determine which of the hundreds

of existing laws that might be applied to the space station should be so
58 Space Stations and the Law

applied. For example, we know that the Fair Labor Standards Act does not

apply to NASA employees, but does it apply to other space workers? If it does

apply, are these people limited to an 8 hour work day on the space station?

Furthermore, what about the Federal Tort Claims Act, Buy-America Act, U.S.

export laws, patent laws, tax laws, and literally hundreds of other pieces of

legislation? How do we go about determining which of these many Federal as

well as State laws apply?

In order to answer these and many more similar questions, advocates of

preventive legislation argue that Congress should undertake a thorough

assessment of current Federal and State law. This assessment would determine

which laws should be extended to the space station and which were limited to

the territory of the United States, and would clarify the role of State law

with respect to space activities.

D. The Utility of Analogies

Since the beginning of the space age, lawyers have debated whether and

to what extent the principles of international and commercial law already

found in air and maritime law could be applied to outer space activities. 2

Workshop participants agreed that the legal principles embodied in air and sea

law could not be transferred wholesale into the realm of space, but disagreed

over value of air and sea law principles as analogies to assist in the

development of a unique body of space law.

Some panelists objected in principle to the use of analogies, stating

that all analogies were misleading. Others objected on the more specific

grounds that analogies did not take into consideration the technological and

political circumstances unique to the space station. For example, they

pointed out that the multinational nature of the space station has no

corollary in the air or sea, and that fundamental concepts such as state

sovereignty in national air space, the partially demilitarized nature of outer

space, and state responsibility for national space activities were not

interchangeable.

One panelist differed, saying, “Space is very much like the high seas.

Space objects are already very much like vessels on the high seas. . .Oceans and

space are both media for transportation, communication and they are both

repositories for resources. ” Although the panelist admitted that, “.. .there

is a good deal of need for caution in trying to go too far with the analogy

between maritime law and space law,” he suggested that the way current

maritime law applies to vessels might offer some useful insights with respect

to questions of jurisdiction over space stations.

Another panelist suggested that analogies, although defective in

certain respects, were useful for regulating interpersonal relationships. How

2 McDougal, et a~.t Law and Public Order in Space, (Yale University Press,

1963) p. 227.
Office of Technology Assessment 59

nations compensate injuries, keep track of and transfer personal

delegate authority, and punish minor wrongs on the space station

differ substantially from how these issues are resolved in the air

high seas.

property,

need not

or on the
60 Space Stations and the Law

II - ISSUES THAT REQUIRE IMMEDIATE ATTENTION

The panelists generally agreed that some issues should be examined

now, although they disagreed as to what the nature or goal of such an

examination should be. The issues discussed below were identified by a

majority of panelists as requiring immediate attention.

A. Jurisdiction and Choice of Law

Almost all legal disputes require that the parties answer three

questions: What nation has jurisdiction (the right to make and enforce rules

of law) over a particular person, place, object, or issue? What court within

that nation is the appropriate court to resolve the specific dispute in

question? And, what is the appropriate law for this court to apply? Given the

multinational nature of space station crews and the modular nature of space

station technology, jurisdiction and choice of law questions will need to be

examined even before space station operations commence.

1) Jurisdiction

As discussed in the OTA background report (supra, p. 25), the concept

of jurisdiction raises many complicated issues and may imply a number of

different legal relationships. For example, nation A might have jurisdiction

over a space station because the relevant multilateral agreement declares this

to be the case. At the same time, the courts of nation B may have

jurisdiction to adjudicate a specific case or controversy (e.g., where the

citizens of nation B are involved or where activities have an effect on the

territory of nation B, etc.) arising from activities conducted on nation A’s

space station.

a) Jurisdiction Over the Space Station

Several panelists were quick to point out that the question of which

nation (or nations) has jurisdiction over the space station (or some part

thereof) raises issues that are predominantly political and technical, as

opposed to legal. For this reason, these panelists thought that it was

unreasonable to assume that jurisdiction need be vested only in one nation.

Others differed, saying that, particularly in the early years of station

operations, multiple, perhaps competing, jurisdictions could make the space

station unmanageable.

o The politics of jurisdiction - Some non-U.S. panelists noted

that their countries did not wish to participate in a U.S. space station, only

in an “international” space station. One panelist suggested that the goal of

the current negotiations should be to reach “an agreement between equal
Office of Technology Assessment 61

partners,” and that: “[We] want to remain fully responsible for. .. [our]...

contribution to the international space station. That is to say, we’ll retain

jurisdiction and control over... [our] . . . contribution, but. . . [we are]...

prepared to discuss...limitation[s]... [on this] . . . jurisdiction in order t.

permit the good functioning of the space station. . .“

In order to encourage the success of this shared jurisdiction

approach, some panelists favored an ad hoc resolution of problems by contract

rather than establishing more general rules of law which would be enforced by

a recognized “authority.” It was believed that this ad hoc, contractual

resolution would discourage the idea that one nation had the power to enforce

law and would encourage the belief that space station operation was a process

of negotiated power-sharing.

The concern over jurisdiction stemmed in part from considerations of

national pride and prestige, and in part from concern over protecting valuable

information derived from research. Several panelists cautioned that their

countries did not intend to provide space station modules dedicated to

research only to find that the United States patent laws could be used to

limit their exploitation of certain discoveries.

o Jurisdiction and technology - Other panelists noted that,

politics aside, technology mitigated against one nation maintaining

jurisdiction over an entire “space station. ” One panelist suggested that we

should pay homage to the old Roman law axiom “ex facto sacro lex,” which

roughly translated means, those laws are best which respond to the facts. He

warned: “Future space stations will not be single objects...they will be

evolutionary objects...[or] ... ’object assemblies’. “ He pointed out that in

addition to the core space station, NASA’s current plans already assume

companion elements such as free-flying platforms and other loose elements such

as polar platforms. In the future, at least four classes of objects may exist

on or near space stations: shuttle-type vehicles that service or supply

stations, modules that are permanently attached, modules that may be attached

and detached, and free-flying platforms in similar or intersecting orbits.

The panelist concluded that “the pluralistic and dispersed nature of

space station assemblies. . might lead. . .to the establishment of different

. . . jurisdictional precincts. ” This would require nations to acknowledge that

. . . the space station has outgrown the single object concept which is the

basis of the Registration Convention, ” and that neither the Registration

Convention nor the 1967 Outer Space Treaty contains an adequate working

definition of the term “space object. ”

Another panelist countered that although the Registration Convention

declared that only one state could register a space object, it allowed

separate agreements on jurisdiction and control. “[S]uch an approach

... [has]... considerable practical advantages, ” the panelist argued, “Mainly it

would prevent the unnecessary fragmentation of a space station assembly into

numerous national territories. ”

b) Jurisdiction Over Cases and Controversies

Putting aside for the moment the question of which country (or
62 Space Stations and the Law

countries) would be designated by the space station agreement to exercise

sovereign jurisdiction, questions of how to determine a court’s jurisdiction

over specific cases and controversies must also be addressed. One panelist

pointed out that the U.S. experience with the First Restatement of Conflicts

showed that attempts to devise jurisdiction-selecting rules in advance were

“inherently futile. ” Such rules “though they fly the banner of certainty, in

fact. . . [create]. . great uncertainty as courts and businesses try to...escape

from the inflexible dictates of those...rule.” This led the panelist to

conclude that we: “not only cannot but should not identify with any precision

which jurisdiction’s rules should govern in advance. ”

The workshop participants did not attempt to resolve the question of

whether jurisdiction selecting rules were desirable; they did, however, point

out that treaties and other international agreements, private and quasiprivate contracts, and arbitration might all be used to designate jurisdiction

in advance. One panelist cautioned that because jurisdiction involved the

power of the state, private contracts which seek to limit a state’s power have

often been held in disfavor.

An alternative to the case-by-case negotiation of jurisdiction might

be to entrust some international body of experts such as the International Law

Commission, the Hague Conference on Private International Law, or the United

Nations Committee on the Peaceful Uses of Outer Space to develop general

principles in this area. Several panelists disagreed with this approach,

stating that attempts to develop such rules in advance of actual cases and

controversies would be ill advised. They suggested that the simplest and most

practical approach was to encourage the slow development of customary law.

2) Choice of Law

a) International Issues

International law does not attempt to instruct courts as

(or bodies) of law should be applied to cases and controversies

space activities. Both the Outer Space Treaty and the Registrati

to which body

arising from

on Convention

declare that a nation has jurisdiction over space objects that it registers

but neither treaty attempts to address the choice of law question.

During the workshop, representatives from the business community

stressed that it was important to their firms to know, in advance, which

nation’s- -and in the United States, which State’s--laws would apply. One

panelist noted that, in its business contracts, it always specified which

State’s law would apply, so that in case of a dispute the firm had a clearer

understanding of the laws with which it would be dealing. Such specificity,

it was noted, would be desirable in space activities as well.

Another panelist argued that business’ desire for certainty might be

at odds with the concept of fairness; that is, “the idea that choice of law

should somehow vindicate fundamental state interests even if you can’t tell in

advance which state will be the most interested or which interests will be the

most worthy.”
Office of Technology Assessment 63

Panelists identified many possible solutions to the “conflict of laws”

question. One could apply: 1) the law of the state of registry; 2) the law of

the forum where the plaintiff brings the case; 3) the law of plaintiff’s

nationality; 4) the law of the defendant’s nationality; or 5) principles of

law common to both jurisdictions (an extremely difficult administrative task).

Alternatively, one could follow the U.S. corporate model and allow one

jurisdiction, such as Delaware, to emerge as proper or convenient referent for

choice of law. As with the question of jurisdiction, the workshop

participants examined a set of alternatives without attempting to determine

which would be most advantageous.

In addition to identifying particular “conflict of law” rules, the

panelists also examined the following range of methods for securing their

acceptance by the appropriate parties:

o Private or quasi-private contracts - Many participants

thought that private or quasi-private (such as the NASA launch agreement)

contracts were the most practical solution since they would allow the relevant

parties to design rules to govern specific activities and technologies.

o Arbitration - Whether specified in private contracts or

expressed more generally in international rules such as the International

Chamber of Commerce Rules3 or the rules of the United Nations Committee on

International Trade Law (UNCITRAL),4 panelists generally believed that

arbitration provided a flexible alternative to preestablished “conflict of

law” rules.

o Treaties or other international agreements - Several

panelists noted that nations could attempt to determine in advance whose laws

would apply to specific situations by negotiating formal multinational

agreements. Although most panelists did not seem to have high confidence in

this approach, one panelist pointed out that, since a treaty would be the

“supreme law of the land” in the United States, the United States might use a

treaty to ensure conformity not only among the signatories but also across the

50 States.

o U.S. statutes - Since most other nations would object to U.S.

attempts to limit the jurisdiction of its courts, U.S. statutes would be of

limited utility for designating jurisdiction. U.S. laws might be more useful

for designating the applicable law in cases involving U.S. nationals. The

United States might use its laws to declare that all U.S. activities on the

space station would be governed by the law of one State (e.g. , Delaware or the

3 “In absence of any indication by the parties as to the applicable law, the

arbitrator shall apply the law designated as the proper law by the rules of

conflict he deems appropriate." 

4 “Failing designation of the applicable law by the parties, the Arbitral

Tribunal shall apply the law determined by the conflict of law rules which it

considers applicable. ”
64 Space Stations and the Law

District of Columbia).

o Customary law - Instead of trying to solve “conflict of law”

problems in advance, nations might make the decision to handle problems on a

case-by-case basis and encourage the development of a customary law of space

conflicts. Such a course might be chaotic at first, but could stimulate

creative solutions to traditional problems. One might allow different choices

of law for different issues--e.g., one for criminal law, one for patent law,

etc. Alternatively, one might encourage the practice of “depecage,” the

dividing of a single action into different parts, each controlled by a

separate law.

o “No Law” solution - One panelist pointed out that in the

early years of space station operations one attractive alternative might be a

“no law” solution where each party accepts its own losses. Such a regime

would be similar to the current NASA policy of requiring shuttle customers to

waive the right to sue each other for damage to payloads. Another panelist

noted that “no law” might work if the only thing at risk was the property of

two space station participants; however, as soon as the law of interpersonal

relations was considered (torts, wills and estates, workmen’s compensation,

etc.) one needs a much more sophisticated legal regime. A representative from

industry objected to the “no law” approach because it would be impossible to

predict the result of a legal action and therefore lacked the certainty (or at

least predictability) so valued by firms.

b) Issues for the United States

The panelists were in general agreement that the two most important

issues for the United States were: 1) how to decide which of the Federal and

State laws currently on the books would apply to space activities; and 2) how

to resolve conflicts that arise between Federal and State laws or between the

laws of the various States.

i) Which Laws Apply?

As noted in the OTA background report (supra, p. 33), Congress has

recently been trying to determine whether the patent laws of the United States

currently apply in space. In 1981, Congress faced this same question with

respect to Federal criminal law and decided to amend the U.S Criminal Code to

remove any confusion on this point. These two examples illustrate the dilemma

which must be resolved for dozens of other pieces of legislation. In each

case the following questions must be asked: Is it desirable for the law in

question to be applied to space activities? Can the law, as currently

written, be interpreted to apply to space activities? And, what legislative

or regulatory modifications will be necessary to ensure that the protections

of the relevant law are available to, or denied, U.S. nationals operating in

space?

Several panelists stressed that successful space commerce would depend

on the extension to space of many of the laws we currently have on Earth. For

example, one panelist noted that the Uniform Commercial Code is essential to

commerce in the United States, yet many of its provisions when applied to the

space station would raise questions (How do we define personal property in

space? Real estate? What is moveable, immovable?) that might require
Office of Technology Assessment 65

legislation to resolve.

Some legislation, such as the Fair Labor Standards Act, would come

with restrictions--such as the 8 hour work day- -which might seem inappropriate

to space. On the other hand, legislation such as the Death on the High Seas

Act might be desirable since it could be used to remove wrongful death actions

from the jurisdiction of States, thereby solving in advance the problem of

conflicting State laws. 5

One panelist stressed the need to resolve these questions before space

station operations get underway. “It’s well enough to say that we have to have

a scientific understanding of these objects [before we address the legal

problems]” he noted, “but when somebody dies up there and their next of kin

brings a lawsuit in one of the district courts of the United States, the issue

is going to [be] ‘what law applies?’ because the law is different in 50

jurisdictions plus the Federal Death on the High Seas Act. ..The law isn’t

going to wait until we get everything in a very nice, beautiful pattern so

that we can flesh it out with beautiful laws that nobody objects to. People

are going to be sued.”

The panelist maintained that such problems must be resolved if we are

going to protect the space worker. “A lot of those people working up there

are going to be workers just like [Earth] -based workers. They’re going to

want to know whether they’re entitled to Federal compensation under workman’s

compensation laws which are very liberal or whether they’re confined to state

workman’s compensation laws which are much less beneficial.“

Another panelist agreed, pointing out that arbitration, a preferred

means for resolving conflicts between private firms or governments, does not

work in personal injury cases. In many instances, the injured party will not

even be party to the arbitration agreement.

ii) Choosing Between Federal and State Laws and Between the

Laws of the Various States

In the United States, Federal courts have primary and sometimes

exclusive jurisdiction over a limited number of issues. However, U.S. laws

covering topics such as personal injury (tort), contract, property, secured

transactions, wrongful death, wills and estates, etc. , are predominantly State

law. Under the doctrine of Erie v. Tompkins, when a Federal court hears a

case on one of these issues it applies State law and dot Federal law. In

space it will be necessary to determine not only the power of States to pass

laws affecting space activities, but also, since State laws vary

substantially, to establish rules to help the Federal courts determine which

5 The wrongful death statutes of StaseS differ considerably. Many States use

a strict liability standard for wrongful death, while others use a negligence

standard. Potential conflicts would be avoided if the Federal law were held

to control. The Death on the High Seas Act limits recovery to pecuniary

losses. The wrongful death statutes of many States allow for loss of

consortium or anguish of next of kin.
66 Space Stations and the Law

of several State laws would apply in a particular instance.

In order to avoid confusion, some panelists suggested that it might be

easiest to declare that one law applies (e.g., the law of the State of

Delaware) and, in essence, create a surrogate Federal law.

One panelist pointed out that two recent pieces of legislation--The

Outer Continental Shelf Lands Act,6 and The Deep Water Port Act7

--offered a

possible precedent for the space station. In these acts, the question was how

to apply U.S. jurisdiction, including municipal law, to artificial islands or

floating rigs that were beyond the territorial jurisdiction of the United

States. This was a problem because many Federal statutes (e.g., the Federal

Tort Claims Act, NASA Act, etc.) explicitly incorporate State law or do not

preempt State law. To resolve this problem and supply the necessary municipal

law, Congress declared State law to be surrogate Federal law by maintaining

that the law of the adjacent State was the relevant State law. Although no

State could be determined to be physically adjacent to the space station, it

would be possible to pick some State arbitrarily and declare that its laws

apply.

B. Protection of Intellectual Property

The need to protect intellectual property was identified as one of the

most significant and yet unresolved space station issues. Panelists generally

agreed that, at least in the near term: “The real money...is going to come

from knowledge we get from space, and that knowledge is going to be something

that [the] partners will wish to keep to themselves. ” This subject was seen

as having a significant effect on many aspects of the space station agreement,

the technical design of the space station, and the international and domestic

laws of the partners.

One panelist suggested that: “a foreign government might not wish to

bring all of its technical data and its skilled people back through an

American receiving point if, in fact, there is a dispute about who owns trade

secrets, or patent rights. . . [because] . . bringing it back to U.S. jurisdiction

might give the U.S. Government, or a private citizen acting through a lawsuit,

the right to seize those goods.” This, it was suggested, might lead to the

desire to develop technological solutions, such as the ability to broadcast

encrypted data from the space station to the relevant country.

One U.S. representative noted that the issue was not simply space

station operation; he was “very concerned that.. the United States. . not lose

its superior position in. . technological advancement,” because it is research

that drives technology development and economic competitiveness. The panelist

noted that it was the management philosophy of his firm to assume risk and to

6 43 U.S.C. 1331, et seq.

7 33 u.s.c. 1501, et seq.
Office of Technology Assessment 67

support innovative ideas, but this meant that intellectual property was a

prime asset of the company. He noted that his firm had spent $500 million in

research and development in 1985, and that over the years, 25 percent of his

company’s sales had been generated by products which did not exist 5 years

ago. This commitment to research, he implied, could not be maintained if

there were no way to protect that investment.

Several other panelists from the United States identified three

independent aspects of the intellectual property problem:

o Current NASA practices -

When NASA enters into a Joint Endeavor Agreement with U.S. firms, it

expects to get access to that firm’s equipment for a certain number of

flights. One panelist noted that: “inevitably in letting NASA use your

hardware and make it work, there may be the need to transfer some background

technology which is really a result of all the years of work that have gone

into the development of the experiment that you paid for out of your own

private stockholders funds.” This raised, in the minds of several panelists,

questions regarding the government’s right to demand access to background

technology and how this right would be exercised on the space station.

NASA also retains the right to use discoveries made by the private

firm if the firm does not take advantage of such discoveries in a reasonable

time. Some panelists objected to the use of such “march in rights” clauses.

Others thought that such clauses were not a problem since they were meant to

protect the public’s investment in space and that sufficient controls existed

to protect the firms.

o The international nature of the space station -

Panelists from all the countries represented at the workshop expressed

concern over the problems inherent in protecting intellectual property in the

crowded and much used laboratories of the space station. Some panelists

thought that the problem of international crews might be managed by limiting

the astronauts’ training so that they could do the experiments without

comprehending the proprietary technology. One panelist observed that: “There

is more to an invention than just knowing how the knobs work,” Therefore, he

felt that these problems would not inhibit corporations from doing some R&D in

space.

Other panelists strongly disagreed. They pointed out that this was

not like doing research on the shuttle. The ideal situation would be to have

researchers on the station for extended periods of time so that they could try

a variety of different experiments, not just turn a few knobs and then come

back to Earth to examine the data. This could not be done by partially

educated astronauts. Some suggested that this problem might be resolved if

firms could send their own researchers to the space station much as McDonnel

Douglas did when it conducted its electrophoresis experiments on the shuttle.

o The nature of the U.S. intellectual property laws -

Some panelists thought that U.S. laws might have to be modified to

protect intellectual property in the unique space station environment. One

panelist noted that on a crowded space station it would be so difficult to
68 Space Stations and the Law

maintain secrecy that one might run into a definitional problem. “If I sit

here with you looking over my shoulder and start writing out my formula,” he

suggested, “I can’t really claim that it’s a trade secret [because under

current U.S. law] I haven’t really protected it.”

Other panelists worried about the lack of recourse for thefts of

intellectual property by nationals of other countries and suggested that such

considerations should be addressed in the space station agreement.

c. Consistency in the Legal Regime

The operation of multinational space stations and the development of

space commerce will increase the likelihood that new domestic laws and

international agreements will need to be developed. Many panelists warned

that care should be taken to ensure that such new rules and regulations were

consistent not only with existing laws but also with broader national economic

and foreign policy goals.

1) Us. L a w

As the OTA background paper points out (supra, p . 38), small

inconsistencies have already appeared in U.S. laws dealing with space. For

example, Federal criminal laws apply to vehicles recorded “on the registry of

the United States, ” but the recent patent legislation (H.R. 4316) would apply

to vehicles under the “jurisdiction or control” of the United States.

Panelists cautioned that such discrepancies could result in unforeseen

problems, particularly since the Registration Convention states that the

person who registers a space object is considered to have jurisdiction and

control except where other international agreements have been negotiated.

Therefore, one might register a space object without retaining jurisdiction

and control over it.

One panelist noted that since the Outer Space Treaty and other

international space treaties use the language “jurisdiction and control, ” it

was troubling to see the United States drafting legislation (such as the

recent patent legislation and the 1984 Remote Sensing Act) using the language

“jurisdiction or control.” The use of the conjunctive “and” presumably

implies- -as it does in maritime law- -that a nation must take some active steps

to exercise jurisdiction. Put simply, “jurisdiction” is a set of rights and

responsibilities and “control” is the acknowledgment and acceptance of those

rights and responsibilities through a series of affirmative actions.

Therefore, one could imply that a failure to exercise control might, in some

manner, affect jurisdiction.

The panelist noted that the use of the disjunctive “or” was confusing.

Was it meant to imply that either “jurisdiction” or “control” would be

sufficient to allow the exercise of U.S. laws? More practically, if nations

declare security zones around their space stations- -a likely safety measure--

would another nation’s free-flyers come under the jurisdiction of the first

nation while in that nation’s controlled space? Other panelists thought that

these questions could be resolved through careful drafting.
Office of Technology Assessment 69

2) International Law and Policy

According to one panelist, contradictions have been avoided in

international space law--including the INTELSAT and INMARSAT agreements--by

incorporating in each instrument the fundamental provisions of the 1967 Outer

Space Treaty. The panelist urged that this process be continued and suggested

that domestic laws might be made consistent by repeating the fundamental

principles found in the 1958 NAS Act. Alternatively, the panelist urged the

development of: “some institution, some central focal point in the government,

that is seeing to it that we do not pass space laws nationally that are in

conflict with each other [or] ...U.S. Foreign Policy and its connection with

national security.“ Such a body might be similar to the old National

Aeronautics and Space Council, in that it could have a highly trained,

permanent staff that would overlook all these issues and call attention to the

possibility of conflicts in national space laws.

Another U.S. panelist disagreed with this approach, arguing that the

Us. Constitution and the U.S. corporate laws supply all the direction we

need. “[Rather than].. having a central clearing house that somehow puts a

stamp of approval every time you make a law,” cautioned the panelist, “you

should develop laws for specific instances as they come about on a concrete

case-by-case basis, only extending general principles. . .to the degree required

to achieve the certainty to allow capitalistic institutions to finance these

activities.“

Although panelists disagreed on the value of international space

laws-- including the 1967 Outer Space Treaty--they agreed that, when necessary,

such laws should be kept brief and used to establish general principles.

Several panelists noted that the long and complex Law of the Sea Treaty

offered an example of what nations should try to avoid.
70 Space Stations and the Law

III - FUTURE CONCERNS

Some issues discussed during the workshop were identified by the

panelists as being important, though- -due to technical or commercial

considerations- -not requiring immediate attention. Time did not allow a

thorough examination of all of these issues; however, panelists identified

product liability, export law, and civil procedure as deserving particular

attention in the future.

A. PRODUCT LIABILITY

Most workshop participants felt that as long as there were no “made in

space” products being marketed, and as long as space station crews were small

and composed predominantly of government employees, most product liability

questions could be handled by a creative use of contracts. Nevertheless, some

panelists felt that as space research and commerce grow, so would the

likelihood that people would eventually be injured or killed: 1) on the space

station by products manufactured on Earth; 2) on Earth by products

manufactured on the space station; and 3) on the space station by products

manufactured on the space station. They believed that with the passage of

time, product liability was destined to become a more important issue.

Current international space laws (1967 Outer Space Treaty and the Liability

Convention) discuss damage caused by space objects in a way that applies to

states and intergovernmental organizations but has little relevance for

private citizens. National product liability laws, on the other hand, apply

to individuals but are, as one panelist pointed out, “a real zoo," varying not

only from country to country but within the regions of individual countries.

For this reason, several panelists felt there would be no clear legal recourse

for individuals injured or killed on the space station.

Several panelists pointed out that national laws were consistent in

neither the cause of action created by product liability nor the standard of

proof required for the plaintiff to move his case forward. Currently, most

jurisdictions rely on actions in tort for product liability; however, a

minority have abandoned or relaxed privity8 rules enough to allow actions to

be based on contract even though there is no direct contractual link between

the parties. With respect to the standard of proof, some States adhere to

8 ‘Privity’ refers to the relationship between contracting parties. Actions

in contract can, for the most part, only be brought by the parties to that

contract.
Office of Technology Assessment 71

strict liability while others rely

this might make it difficult to

station.

In addition to conflicting

on negligence. Some panelists

develop consistent rules for

national laws, the uncertain

felt that

the space

nature of

space station jurisdiction and the possibility of multiple jurisdictions make

the choice of law question extremely difficult for space station product

liability cases. There are three multilateral instruments currently in force

on product liability cases on Earth: the Hague Convention9 to determine

applicable “conflict of law” rules, the Council of Europe ConventionlO, and

the European Economic Community (EEC) Directive.ll Some panelists thought

these instruments could offer guidance on how to resolve similar problems that

might arise on the space station. For example, nations could, following the

EEC Directive, enter into an agreement to modify their national laws to adopt

a strict liability standard of proof for all product liability cases arising

from the space station. In addition, such an agreement could also allow

nations to establish a

Some panelists

way of guidance: “To

adoption of worldwide

product liability law.

ceiling on financial settlements.

disagreed that existing conventions offered much in the

date, very little progress has been achieved in the

international conventions dealing with substantive

It seems. . quite unrealistic to hope for the early

adoption of an international convention on product liability as it pertains to

space stations. ”

Panelists identified the choice between “fault” (where the plaintiff

must prove the defendant acted with “negligence”) and “strict liability”

(where the plaintiff need only prove that an injury occurred and that injury

was caused by the defendant’s product) as being a key consideration for space

station-related product liability actions. One panelist pointed out that the

Liability Convention applies strict liability for damage on Earth or in the

atmosphere but uses the more relaxed fault liability concept for accidents or

injuries in space. Several panelists stated that this division existed

because a collision between two space objects would almost necessarily involve

two space powers, and the drafters of the Liability Convention believed that

the space powers would be in a position to determine fault. People injured in

the air or on the ground, on the other hand, would be “innocent bystanders”

who would lack the technical and financial resources to make such a

determination.

Some panelists thought that a similar division would be appropriate

for the space station: “for products manufactured in space and sold on the

Earth. . you might apply strict liability. But, . . on the space station, one

might make the argument that all the people up there accept a higher degree of

9 The United States is not a party to this treaty.

10 Ratified by only three members.

11 In force beginning in 1988.
72 Space Stations and the Law

risk, and therefore, if there is an equipment malfunction. . strict liability

would not apply [and the plaintiff should have to prove that the defendant was

negligent] .“

Another panelist disagreed, arguing that with regard to products made

in space, “there should always be a finding of fault associated with it, as

both the users and the producers are liable to be very technically

sophisticated and capable of making these types of proof.”

Still other panelists felt that the standard of proof which applies to

the space station must be a political, not a legal choice. One panelist

suggested that given the current legal environment in most countries: “It is

totally unrealistic to go for an international instrument based on negligence.

What is more realistic. . . is an instrument based on strict liability, but with

a ceiling on financial settlements. . .“

With respect to product liability, certain panelists were of the

opinion that: “space was just not the issue.” They argued that space

legislation could contribute little: “considering the situation of product

liability legislation in this country today, any recommendation you make [with

respect to the space station] to Congress on product liability will probably

fall all apart, and so I’m not sure that there is anything specifically that

could be done for space today until the whole issue of product liability in

this country is resolved. ” Other panelists suggested that, in some areas,

space offered no unique difficulties. One panelist noted: “A German

manufacturer makes the decision whether he wants to market his product in the

State of Texas, or in the State of California, or in the United States at all,

and he makes that decision after he looks at the market, and he looks at his

return, and he looks at the exposure he gets under the product liability law.

And the same kind of analysis would go on [for space products] .“

Others thought that problems such as product liability were too big to

be solved with space legislation. “Businesses [are failing] because they

can’t get insurance because of their product liability, and it’s a serious

thing that’s being addressed by Congress. ..space is just a little piece of

that business; right now, a very, very small piece. [It does not make sense]

to recommend. . . that there be special treatment for space. . ."

Still others strongly disagreed, arguing that, in the case of product

liability, if these issues were not resolved in a more satisfactory manner

than they have been on Earth, this will be a disincentive to industry.

Although acknowledging that this was more of a problem for manufacturing

rather than research, the panelists suggested that legislating some upper

limits on liability for space products would be a constructive step. It was

suggested that the Price-Anderson Act- -used to address the liability question

in the nuclear power industry--was an interesting model. Under PriceAnderson, private firms would buy as much insurance as was available and the

government would agree to cover their liability over the available insurance,

up to a statutory limit.

Although acknowledging that space was only a small part of some very

large legal problems, several panalists expressed the hope that space commerce
Office of Technology Assessment 73

could be a “clean broom” for sweeping away many problems faced by the business

community here on Earth. “I think we’re at a unique point in history” offered

one panelist, “We’re able to not only fashion some rules under which we will

live in space, but I think in doing so we also have the opportunity to fashion

some changes in the rules under which we live here on Earth. Let [our legal

activities] be a clean broom [that does more than] sweep some cobwebs out of

space, . . “

B, EXPORT LAW

Panelists were virtually unanimous in their identification of export

law as an important concern and they regretted its omission from the OTA

paper. Most felt that the subject was too complicated to be discussed in the

short time available at the workshop. Many expressed the opinion that a full

day could be profitably spent on this subject. Some of the aspects of this

problem that were identified as requiring further discussion included:

o Transfer of technical data between space station modules.

Depending on how jurisdiction was allocated on the space station, transfers

between national modules could be regarded as imports or exports. One

panelist suggested that should technical information pass from, say, a

Japanese module into a U.S. module: “it would be an import and once it’s

imported, if it’s technical data, you have to have an export license for

export to take it back out of the country. ” Others disagreed, arguing that

most types of information passed between modules would not be technical data

under International Trade in Arms Regulations (ITAR) or Commerce regulations.

o Equipment shipped through the United States to the space

station. One panelist pointed out that bringing goods into the United States

to be launched on the shuttle does not require an import license because of a

special exemption granted to NASA. This exemption would not extend to other,

perhaps commercial, launch organizations.

o Status of products made in space and delivered to foreign

countries. Panelists identified a number of questions that could result from

the shipment of “made in space” products to Earth. What would be the effect

of the jurisdiction of the modules? The nationality of the producer? The

fact that the product might first land in the United States on the shuttle and

then be shipped to the ultimate destination?

o Transfer of subcomponents between nations for eventual

incorporation in the space station. Under current plans, components

ultimately destined for the space station will be manufactured in many

countries. Several panelists felt that it was important to develop rules

which allowed the easy transfer of space station components between nations.

o Multinational research and product development. The

multinational nature of the space station could, as one panelist pointed out,

lead to a situation where a German company and American company want to

cooperate to investigate some technology, but, under U.S. law, the German

company would not know if it could buy the product until after it was
74 Space Stations and the Law

developed. Since the product does not exist now, there would be no regulation

in the Commerce Department, the Department of Defense, or in the State

Department that could be consulted, and these agencies would refuse to give an

opinion letter in advance.

c. CIVIL PROCEDURE

In arguing against attempts to solve legal problems in advance, one

panelist observed that the only penalty for not developing appropriate laws

was conflict. Since the function of courts is to resolve conflict, the

panelist felt that all that were required were appropriate procedures to grant

courts the power they would need to conduct the case.

Other panelists noted that some State procedural laws would already

apply to space station conflicts. For example, using the “Long Arm” statute

of Texas, one could obtain jurisdiction over a person by service of process on

the Secretary of State of Texas if that person has made a phone call or sent a

letter or a telex into Texas. 12 Arguably, under Texas law, merely controlling

the space station from the Johnson Space Center exposes all participants to

Texas jurisdiction. This led some panelists to express the opinion that

unless such State laws were restrained, they would have a disruptive effect on

space station operations.

Pondering the inherent difficulties of conducting pretrial

investigations (discovery, depositions, interrogatories, etc.) concerning

space station activities, one panelist queried “How do I get discovery? How

can I take testimony?” The panelist suggested that lawyers will need to

examine records (“conduct discovery”) that exist only on the space station, or

to obtain testimony from individuals on the space station without bringing

them down to Earth. If SO, then new rules of civil procedure may be necessary

which will supply the legal means to force parties residing in space to comply

with specific court orders. If private lawyers are to bring lawsuits, then

certain procedural mechanisms must be put in place. Several panelists

suggested that this could be best accomplished by amendments to the Federal

Rules of Civil Procedure and the Rules of Evidence.

However, one panelist warned that amending U.S. Federal Rules of Civil

Procedure could run afoul of the Hague Conventions on the service of process

and the taking of evidence abroad. These conventions declare that certain

evidentiary procedures are the prerogative of the state. Therefore, foreign

countries can forbid the sending of interrogatories or attempts to take

depositions by the nationals of other states. The Hague Conventions could be

seen as barring the taking of discovery on certain aspects of space station

activities if part of the station was under the jurisdiction and control of

another country. Arguably, if Congress passed new amendments to the rules of

12 The U.S. Constitution requires that a person receive proper notice

(’service of process’) of judicial proceedings that affect his or her person

or property.
Office of Technology Assessment 75

civil procedure, under the “Later in Time Rule,” these would override the

treaties in the United States. However, in the absence of multinational

agreements, such laws would not be respected in other countries.

Some panelists felt that procedural questions were not really a

problem since everyone would have to come back through the United States on

the shuttle. Once in the United States, they would be subject to discovery

and service of process. Others suggested that such thinking was exactly what

most troubled our space station partners. The idea that foreign space station

participants might have to run a gauntlet of U.S. laws every time they landed

on the shuttle was viewed as diminishing the possibility of successful

international cooperation.
76 Space Stations and the Law

IV - CONCLUSIONS

Throughout the workshop, many panelists stressed that: 1) it was time

to begin to examine the problems presented by the operation of multinational

space stations; and 2) such an examination should proceed slowly, taking into

consideration the technical demands of building large, permanently manned

space structures, the political demands of multinational management, and the

eventual need to establish a “backdrop” of laws and regulations necessary to

protect the space worker.

Some panelists felt that INTELSAT offered a good example of how to

approach the timing --though not necessarily the substance--of a multinational

space station agreement. INTELSAT started slowly with interim arrangements

that were essentially contractual joint ventures between the international

partners and the initial manager, COMSAT. After 7 years of experience, a more

definitive arrangement was negotiated and INTELSAT was given its own separate

legal personality, privileges and immunities, an arbitral mechanism and so

forth. Many panelists felt that it was important to ensure that early legal

and administrative space station agreements contain the flexibility required

to take advantage of the tremendous amount of experience the organization will

gain in its first few years of operation.

Most panelists were skeptical of the need for new international

treaties, but many thought that a systematic investigation of space station

legal issues would reveal that creative multinational agreements or selective

domestic legislation would be in order.

Finally, several panelists noted that when the first space-related

cases begin to occur, the courts will look first to congressional declarations

to resolve complex issues. In the absence of such congressional declarations,

courts will be left to their own devices, creating law and applying--or

misapplying --analogies from air law and maritime law. As one panelist noted:

“if Congress has anything to say [on this subject], it had better make itself

clear now.“

o