In-Space Jurisdiction’: the SU Approach and the Problems It Is Facing Frans G

University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln Space, Cyber, and Telecommunications Law Law, College of Program Faculty Publications 2015 Effective Exercise of ‘In-Space Jurisdiction’: The SU Approach and the Problems It Is Facing Frans G. von der Dunk University of Nebraska-Lincoln, [email protected] Follow this and additional works at: http://digitalcommons.unl.edu/spacelaw Part of the Air and Space Law Commons, Comparative and Foreign Law Commons, International Law Commons, Military, War, and Peace Commons, National Security Law Commons, and the Science and Technology Law Commons von der Dunk, Frans G., "Effective Exercise of ‘In-Space Jurisdiction’: The SU Approach and the Problems It Is Facing" (2015). Space, Cyber, and Telecommunications Law Program Faculty Publications. 90. http://digitalcommons.unl.edu/spacelaw/90 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Space, Cyber, and Telecommunications Law Program Faculty Publications by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Published in Journal of Space Law 40:1–2 (2015–2016), pp. 147–185. Copyright © 2015 Frans G. von der Dunk. Used by permission. EFFECTIVE EXERCISE OF ‘IN-SPACE JURISDICTION’: THE US APPROACH AND THE PROBLEMS IT IS FACING Frans G. von der Dunk* I. INTRODUCTION As mankind moves closer to the fiftieth anniversary of the con- clusion of the Outer Space Treaty1, the framework international treaty laying down the baseline regime for space activities, it may be considered a major achievement that the treaty, as well as some of its off-spring – notably the Rescue Agreement2, the Liability Con- vention3 and the Registration Convention4 – seem to be as relevant as ever. This is a major feat in an international era of many funda- mental changes in the geopolitical, economic and social context. Nevertheless, the increasing involvement of private entities in many fields of space activity, beyond the (by now) more ‘traditional’ ones of satellite communications and to lesser extents launching and satellite remote sensing, has given rise to many new legal issues, even questions about the continuing validity and appropriate- *Frans G. von der Dunk is Harvey & Susan Perlman Alumni/Othmer Professor of Space Law at the University of Nebraska-Lincoln. This paper is an adapted version of a White Paper “Towards the Effective Exercise of ‘In-Space’ Jurisdiction on US registered spacecraft? Possible US Approaches’, prepared for the 7th Annual University of Ne- braska-Lincoln’s Washington Conference on Space Law, 3 1 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies London/Moscow/Wash- ington, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereafter Outer Space Treaty]. 2 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119 [hereinafter Rescue and Return Agreement]. 3 Convention on International Liability for Damage Caused by Space Objects, opened for signature Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 [hereafter Liability Convention]. 4 Convention on Registration of Objects Launched into Outer Space, Opened for signature Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 [hereafter Registration Conven- tion]. 147 148 JOURNAL OF SPACE LAW [VOL. 40:1-2 ness of the broad regime resulting from the abovementioned treaties. Nowhere is this probably more true than in the case of the United States, the world’s leading spacefaring nation in particular also in the context of extended private participation in activities in outer space. In the United States, various serious commercial enterprises are eying the possibilities of exploiting the mineral resources of as- teroids or other celestial bodies. Also in the United States, the various companies that are close to selling tickets to outer space to the rich, famous, and a few others are converging – even if Richard Branson’s Virgin Galactic originally was a British company, and SXC, planning to launch from the Dutch Caribbean island of Cura- cao, was a Dutch company before its merger with XCOR. Except for satellite communications and a few isolated examples in launching and remote sensing operations, all private operators with advanced plans for, or actually ongoing, space operations are US or US-led companies. This also means that the development of legal tools within the United States to properly handle such new private endeavours should be of great interest to the rest of the world as well. Indeed, various non-US countries and other interested parties in this realm are closely following the developments within the United States in this regard. One important aspect thereof concerns the use of national leg- islative and regulatory instruments to address international re- sponsibility and liability of the United States under the treaties for the activities of such private entities in outer space or in an outer- space-context, further to Articles VI and VII of the Outer Space Treaty.5 5 Art. VI, Outer Space Treaty, supra note 1, provides for “international responsibil- ity for national activities in outer space, including” where “such activities are carried on (…) by non-governmental entities.” Art. VII provides: “Each State Party to the Treaty that launches or procures the launching of an object into outer space (…) and each State Party from whose territory or facility an object is launched, is internationally liable for damage” caused by that space object. See generally F.G. von der Dunk, Private Enterprise and Public Interest in the European ‘Spacescape’: Towards Harmonized National Space Legislation for Private Space Activities in Europe 17-26 (1998) (unpublished Ph.D. dis- sertation, International Institute of Air and Space Law, Faculty of Law, Leiden Univer- sity) and J. Nagvanshi & A. Sharma, Jurisdiction in Outer Space: Challenges of Private Individuals in Space in CURRENT DEVELOPMENTS IN AIR AND SPACE LAW 324-39 (eds. R. Singh, S.D. Rao & S. Kaul 2012). 2015-2016] IN-SPACE JURISDICTION 149 At the same time, the United States turns out to present a ra- ther unusual picture from the perspective of domestic implementa- tion of international obligations under the space treaties and do- mestically specifying the agencies exercising jurisdiction for the purpose. It does not have a single national framework space act from which all further detailed regulations follow (which is essen- tially what all other countries with dedicated national space laws have availed themselves of), but a set of separate, to some extent even disparate national acts handling different aspects and ele- ments. While historically understandable, and so far not having raised major legal problems, this is rapidly changing now under the pressure of such new developments as sketched above. For that reason, the present article addresses the US approach to handling its international obligations under the space treaties specifically vis-à-vis private actors, the issues arising from that approach and the discussions currently gearing up to try and handle those issues more profoundly, comprehensively and, in a sense, log- ically. In short: how does and should, the United States arrange for the exercise of domestic jurisdiction over any relevant space or space-related operations by private actors, in line with applicable international law and, more precisely, in line with relevant clauses of the Outer Space Treaty and the Registration Convention. II. THE NEED FOR EFFECTIVE EXERCISE OF US ‘IN-SPACE’ JURISDICTION: THE PRIVATE ‘SPACESCAPE’ The size and importance of the US private commercial space industry not just for the United States but also from a global perspective is beyond question. It requires both appropriate levels of control and regulation by the US government, for purposes of national policy and compliance with relevant international obligations of the United States, and, to the extent compliant with international law, appropriate stimulation equally to be reflected in legislation and regulation. From this perspective, within the broader sector of the private commercial space sector, prima facie roughly seven categories of private commercial space activities warrant special attention, run- ning the gamut from already being operational to being in the gen- eral stage of preliminary mission consideration. All fundamentally 150 JOURNAL OF SPACE LAW [VOL. 40:1-2 raise the issue of the exercise of US jurisdiction over private activities conducted in or with respect to outer space. The first four categories of these roughly fall within the sub- sector of private human spaceflight, whereas the fifth and sixth cat- egory deal with the sub-sector of private robotic on-orbit operations and the seventh with private exploitation of celestial bodies’ resources, which for the time being is envisaged to be undertaken by way of unmanned missions (although this may change at a later stage). It is these three sub-sectors which consequently will be ad- dressed by the present contribution. A. Private Human Spaceflight ‘Private human spaceflight’ should be defined as “flights of hu- mans intended to enter outer space (a) at their own expense or that of another private person or private entity, (b) conducted by

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