Nov 13

Nov 13 A Jurisdictional Framework for Dispute Resolution in Outer Space

Jurisdictional Decision-Tree for Resolving Conflicts in Outer Space | Alex S. Li

“If some acts be examinable and others not, there must be some rule of law to guide . . . the exercise of . . . jurisdiction”

— Marbury v. Madison, 5 U.S. 137, 165 (1803)

**** MAJOR UPDATE ON 7/13/2021: I have rewritten and incorporated the below into a law review paper: https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=2216&context=olr. The updated “version” forms Parts III-IV of the paper. Please review the material there as it has the most current information. Thank you! ****

This summer, New York Times reported the first potential crime in Outer Space: a NASA astronaut is accused of illegally accessing her estranged spouse’s bank account onboard the International Space Station (ISS). While the investigation is still ongoing, this incident raises an important question about jurisdictional power—the authority to investigate and resolve a conflict—in Outer Space, a domain that is legally, by the Outer Space Treaty, owned by none. While the jurisdictional issue for this particular case is fairly straightforward (because of the governing ISS Intergovernmental Agreement), for future Outer Space conflicts, the jurisdictional issue could be less clear-cut.

To contribute to this area of unsettled law, in this post, I propose a jurisdictional framework that could procedurally govern the conflict resolution process in Outer Space. I will start by presenting the background and explaining the rationale behind my framework. Then, I will work through a few potential scenarios using this framework to demonstrate how different jurisdictional issues could be resolved.

Existing Legal Foundation

While Outer Space law is still in its infancy, several international treaties have firmly cemented its foundation. Of the five United Nations treaties related to Outer Space, four have been ratified. While not particularly granular in their approach, these treaties broadly establish a legal outline for Outer Space activities. While I have limited my discussion here to the jurisdictional-related sections, please refer to my earlier overview post for a more complete background on these treaties.

Of the four ratified treaties, the Outer Space Treaty of 1967 is considered the sine qua non of legal doctrine related to Outer Space. This treaty establishes the core principle that Outer Space is “free for exploration and use by all States.” While this premise has led to controversies related to ownership rights—especially on Outer Space mining—it has ensured that Outer Space is navigationally open for all nations.

While the Outer Space Treaty dictates that Outer Space “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means,” it still has provisions that provide for jurisdictional authority. In Article VIII, the Outer Space Treaty indicates that a nation “whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof. . . .” The treaty further emphasizes that ownership over an object is “not affected by [its] presence in outer space or on a celestial body or by [its] return to the Earth.” Therefore, like a ship at sea, the nation under which the space-faring object is flagged shall retain jurisdiction over all activities for such object.

A country can register its ownership over a space-faring object via procedures outlined in the Registration Convention of 1975. But, because it is hard to police activities in Outer Space, nations might not be religiously following its obligations under this convention. Yet, the Registration Convention is an important means by which the jurisdictional objectives of the Outer Space Treaty can be realized. For instance, the Registration Convention effectuates the Rescue Agreement of 1968, which elaborates on aid-assistance provisions of the Outer Space Treaty. A party that becomes aware of a space-faring object in distress, which is not properly identified, will not be able to fulfill such party’s notification obligations under Article 5 of the Rescue Agreement. This could in turn cause delays in limiting further damages or providing prompt assistance to such object in distress.

The Registration Convention is also important for the implementation of the Space Liability Convention of 1972. This 1972 treaty details the international liability regime introduced in Article VII of the Outer Space Treaty. Under this agreement, liabilities for damages among space-faring objects are appropriated and resolved among the nations involved in the incident. Therefore, this resolution framework also depends on the proper registration and identification of objects in Outer Space.

While these ratified treaties have laid the groundwork for resolving issues that might come up in Outer Space, this arena is now available to more commercial activities and private individuals than ever before. Hence, a more robust procedural jurisdictional framework will be needed to resolve issues that might come up.

A Jurisdictional Framework for the Final Frontier

In addressing the need for a procedural jurisdictional framework for Outer Space, I have come up with the following decision tree analysis that can help to determine the appropriate jurisdictional authority.

One unique characteristic of my framework is that it does not turn on the citizenship status of the people involved in an Outer Space incident. I did this purposefully to align the framework with the Outer Space Treaty’s core principle that Outer Space should not be “subject to national appropriation . . . by means of use or occupation.” I believe that if the jurisdictional question turns on citizenship status, then the temporary jurisdictional authority needed to resolve a specific conflict can be used as a colorable argument and a foothold justification for establishing permanent sovereign power over an area that, otherwise, could be legally open to all nations for exploration. Therefore, my framework ignores the citizenship question and, instead, focuses on the incident location and the objects involved.

While each step will be explained in depth, at its core, the framework relies on answering the following questions:

Did the dispute arise in Outer Space?
Did the dispute occur within a space-faring object or among multiple space-faring objects?
- If the dispute involves multiple objects, are they all flagged under the same nation?
- If the dispute occurred in a space-faring object, how is such object flagged?
  - If the space-faring object is flagged under a collective of nations, is there a governing agreement that would resolve the jurisdictional issue?
    - If there isn’t a governing agreement, did the dispute take place in segment(s) under one particular nation’s flag?

Step One: Did the incident take place in Outer Space?

Before we reach the substantive jurisdictional question, we must first determine whether the conflict took place in Outer Space. While this seems trivial: you are either in Outer Space or not, there actually is no officially accepted boundary for Outer Space. In fact, the United Nations Committee on the Peaceful Uses of Outer Space has indicated that “there is a lack of political will to negotiate and agree on a boundary at the international level.” While this might appear strange, there is a geopolitical reason behind this ambiguity; as I explained in a previous post, having no bright-line rule enables countries with air superiority to have unfettered access to the air space above any nation as long as their planes are “high enough.” The lack of a clear boundary provides these nations with the legal defense that they did not trespass into another nation’s airspace.

But, many nations have accepted the Kármán Line, currently set at 100 kilometers above sea-level, as the unofficial start of Outer Space. While in that same post, I attempted to resolve the boundary issue by proposing a demarcation zone (see: “Redefining the Kármán Line: Drawing the Boundary for Outer Space”), for the purpose of this post, we can assume that an incident takes place in Outer Space if it occurs sufficiently above 100 kilometers over Earth’s sea level.

Step Two: Did the incident take place inside a space-faring object or among space-faring objects?

Once we establish that the incident took place in Outer Space, we need to examine whether it was a conflict inside a space-faring object or it was an accident involving multiple space-faring objects.

Step 2(a): Incidents involving multiple space-faring objects

If the incident involves multiple objects in Outer Space, then we need to further examine whether all of the space-faring objects involved are flagged under one nation or several nations.

One State-Party: That State’s Jurisdictional Laws Control

Even if the incident involves multiple objects, as long as they are all flagged under the same state, then that nation’s jurisdictional laws would control. Authority over the dispute resolution process would remain with that nation as no other states’ space-faring objects are impacted. It is worth noting that the jurisdictional question does not turn on whether the incident involves citizens from other nations. Similar to visiting another nation on Earth, by boarding the space-faring object that is flagged under another nation, these participants give their tacit consent to submit to such nation’s authority.

Multiple State-Parties: Establishment of an Outer Space Adjudication Commission

The Space Liability Convention establishes a basic jurisdictional framework to resolve conflicts in Outer Space that involve multiple nations. Under the liability treaty, the parties will first attempt to resolve the dispute on their own. However, if the parties cannot resolve the issue after a certain amount of time, the Convention provides for, via Article XIV, the establishment of a “Claims Commission at the request of either party.” This “Claims Commission” will be made up of three members, one appointed by each party, and the chairman jointly agreed to by the parties involved. If the parties cannot come to an agreement on the chairman selection within a certain amount of time, Article XV then calls for the Secretary-General of the United Nations to appoint the commission’s chairman. This commission will have wide latitude in determining “its own procedure . . . , and all other administrative matters….” With “all decisions and awards of the Commission shall be by majority vote,” this adjudication commission will have complete jurisdictional authority over the dispute resolution process.

While the Space Liability Convention’s procedures could work for this scenario, I would make a modification so that we can more adaptably apply the framework to conflicts involving more than two nations. Similar to the convention’s procedures, after providing a certain amount of time for the parties to resolve the issue on their own, an Outer Space adjudication commission shall be established; each state will choose a commission member and all parties will jointly pick the commission’s chairman. However, unlike the procedures laid out in the liability treaty, I propose that if there are an odd number of nations involved such that the final membership of the commission (including the chairman) will be even, then all parties will jointly agree upon both a chairman and a vice chairman. If the parties cannot agree on the chairman and the vice chairman after a certain amount of time, the United Nations Secretary-General will select these two members. By majority rule, the adjudication commission members will then determine its rules, procedures, and governing law for the conflict, ultimately resolving the issue at hand.

Step 2(b): Incidents occurring in a space-faring object

If the conflict took place inside a space-faring object, the jurisdictional analysis then turns on whether this object is flagged under one nation or under a collective of nations.

One State-Party: That State’s Jurisdictional Laws Control

If the conflict took place inside a space-faring object that is registered to only one nation, the jurisdictional question becomes simple to solve. Under Article VIII of the Outer Space Treaty, the nation “on whose registry an object launched into outer 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.” Hence for conflict resolution purposes, the jurisdictional authority will lie with the nation who registered such object.

Multiple State-Parties: Jointly-Executed Agreement or an Outer Space Adjudication Commission

However, if the incident took place on a space-faring object that is flagged under a collective of nations, then as an initial starting point, we should look at the governing agreement for such jointly-operated object. These joint-operation agreements will typically have a conflict-resolution clause stipulating the jurisdictional procedures for these cases.

For example, the International Space Station is governed by ISS Agreements. In Article 5, the main agreement notes that, in accordance with the Outer Space Treaty, “each Partner shall retain jurisdiction and control over the elements it registers . . . and over personnel in or on the [ISS] who are its nationals.” Additionally, under Article 22, the ISS Agreement also contemplates separate procedures for criminal jurisdiction. Therefore, this agreement clearly lays out the jurisdictional procedures needed to resolve an incident on the ISS, including the NASA case mentioned in the introduction; even though it occurred in a jointly-operated space station, since the incident only involves a NASA astronaut, United States would have complete jurisdictional authority over the case. So, even if no treaty is specifically on point, we can still resolve an Outer Space jurisdictional issue by the agreements among the nations.

However, in the unlikely event that there is no agreement in place or none of the provisions would cover the conflict in question, we will need to further examine the exact location where the incident took place. If the accident location can be pinpointed to segment(s) owned by a specific nation, then that nation should have jurisdictional powers in resolving the conflict. Under this scenario, we essentially treat the segment(s) as a separate space-faring object and apply the rules discussed above.

If it is unclear who owns the segment(s) and/or the accident took place over segments owned by multiple nations, then as a fallback, I propose that we establish the adjudication commission, as discussed above, to resolve the conflict.

Case Studies: Application of the Jurisdictional Framework

To further clarify my procedural jurisdictional framework, I came up with the following hypotheticals. All of the below scenarios are presumed to have occurred in Outer Space, thereby bypassing the first step of the analysis.

Hypo #1: A conflict onboard a spaceship

Situation: A conflict arises among passengers and crew of a spacecraft flagged under only one nation. People involved in this incident came from different countries, with some of these states having no diplomatic relationships. Nobody onboard is a citizen of the nation whose flag the spacecraft operates under.

In this scenario, the jurisdictional issue can be resolved simply because the analysis, under my framework, does not turn on the red herring issue of citizenship. Because the conflict took place in a spacecraft flagged under a particular nation, that nation would have complete jurisdictional authority over the conflict and its laws should apply.

Hypo #2: An accident onboard a jointly-operated space station

Situation: An accident involving crew members of different nationalities occurred on a segment of a large space station that is jointly-operated by several nations.

Since the space station is jointly-operated by several nations, we would examine whether there is an underlying governing agreement that addresses the issue at hand. If there is no agreement or the agreement does not address such scenarios, then we would determine which nation registered the segment(s) involved in the accident. If the accident can be reduced to segment(s) owned by one specific nation, then that nation would have jurisdictional powers over the conflict. If not, then an adjudication commission should be established to resolve the issue.

Hypo #3: An incident involving two astronauts on a spacewalk

Situation: While outside on a spacewalk, frustration between two astronauts boils over and leads to punches with resulting physical injuries.

Because of the spacesuit, each astronaut could be considered as operating within a separate space-faring object. If both astronauts have the same nationality, then that country would have complete jurisdictional authority to resolve the conflict. However, if the two astronauts are citizens of two different countries, then an adjudication commission should be formed with three members (one member selected by each nation, and a chairman jointly-agreed to by both nations—or appointed by the Secretary-General of the United Nations if agreement cannot be reached). All jurisdictional authority shall vest in such commission with it having the ultimate right in resolving the conflict.

Hypo #4: Three objects colliding in Outer Space

Situation: Two satellites, each from a different nation, collide in Outer Space, leading to damages to both. One of these damaged satellites veer off course and bump into a third nation’s satellite, leading to additional damages.

Here, an adjudication commission shall be formed with five members; each of the three nations will individually select a single member and jointly agree to the selection of a chairman and vice-chairman (to make the membership odd). This five-member commission will have all jurisdictional authority over the accident including the apportionment of fault. Damages determination will be a case-specific inquiry for the adjudication commission.

A Path Forward: Establishing the Rules of the Road for Outer Space

Through this procedural jurisdictional framework, I want to establish basic rules of road for resolving conflicts in Outer Space. While the framework is reactionary by nature (i.e., it depends on the facts of the incident), these guidelines can be used to proactively think about how the jurisdictional issue might come out if a conflict were to arise. As the framework does not rely on the citizenship status of the people involved in an accident, it is compatible with the Outer Space Treaty’s core principle that Outer Space is the domain of all humankind and “not subject to national appropriation.”

Through this framework, I hope to remove some of the uncertainties involved in Outer Space activities and help parties to better understand the resulting procedures that would accompany any disputes that might arise. With more and more commercial entities and private individuals gearing up to explore this final frontier, these rules of road will hopefully ensure that conflicts in Outer Space are, at least procedurally, resolved through an uniform and consistent approach. Only by moving past conflicts quickly, can we hope to continue our Outer Space development with an efficient tempo, empowering explorers to quicken their quests in unlocking new benefits for humanity.