People have always been curious what worlds exist in the vast “cosmic ocean” surrounding Earth.[1] In 1969, humanity took their first major trek across this ocean and visited the Moon. More explorers followed in the subsequent Apollo missions, and they uncovered much information about the lunar surface. Presently, NASA plans on visiting our natural satellite once more by 2024.[2] The space agency is also hoping to sail their ships even further and land astronauts on Mars.[3] Much of our ability to dip our toes into this cosmic ocean has come from Sir Isaac Newton, the father of Newtonian physics and the first to make the then-outrageous claim that the laws of physics on our planet were, quite literally, universal.[4] Stars millions of light years away were just as affected by gravity as an apple on Earth. However, we have yet to fully answer whether the laws that govern society – our criminal and civil laws – will have equal application beyond our atmosphere.
This question becomes increasingly more important as the idea of space tourism takes flight. Companies, such as Virgin Galactic, are offering pre-bookings of seats aboard their anticipated spacecraft that will take tourists into orbit to experience zero gravity.[5] A Japanese artist, Yusaku Maezawa, has teamed up with SpaceX to fly a group of private citizens around the Moon.[6] Elon Musk plans on sending humans to Mars aboard his SpaceX Starships with the goal of colonizing the planet and building fully functioning cities.[7] Legal issues are bound to arise on these futuristic voyages. And when they do, who will the injured parties turn to for a remedy? Will a regular United States court have jurisdiction over a spacecraft flying millions of miles away? Can the court use United States common law to resolve these disputes?
The first piece of legislation to address space law was the Outer Space Treaty ratified by Congress in 1967. At present, 110 countries have signed the treaty including China and Russia.[8] The treaty mandated signatories to only explore space for the benefit of all humanity and barred any state from claiming sovereignty over celestial bodies, among other provisions.[9] Interestingly, the text of the treaty appears to only bind States, not individuals. This quirk of the treaty’s language has led to some innovative people to literally claim the property rights of celestial bodies and sell off parcels of land in lucrative real estate deals. For example, Dennis Hope laid claim to the Moon in 1980 and proceeded to sell off plots of lunar land to people across the globe.[10]
Because of the Outer Space Treaty, it would be difficult for the United States to assert territorial jurisdiction over any human colony in space. However, Article VIII of the treaty allows for states to retain jurisdiction over spacecrafts the state launches from Earth and “over any personnel thereof, while in outer space or on a celestial body”. This gives room for states to prosecute crimes that are committed on state-owned rockets and satellites. The United States has taken advantage of this provision and asserted special maritime jurisdiction over spacecrafts launched by the government.[11] Law enforcement can now prosecute certain crimes, like murder, committed aboard these vessels.[12]
However, the arm of the law may be limited depending on who owns the spacecraft. Article VIII of the Outer Space Treaty can be read to only apply to state-owned crafts. Thus, some scholars have argued that the United States may not be able to assert jurisdiction over privately owned vessels, such as SpaceX Starships.[13] Moreover, it is unclear whether the United States can assert jurisdiction over a Moon base built by an American astronaut using lunar materials, since the materials were not launched from Earth.[14] This discussion gets murkier once we enter the realm of private actions. There does not appear to be any provision in the Outer Space Treaty allowing for jurisdiction over civil matters. However, United States courts have heard cases that involve international incidents simply because they have personal jurisdiction over the defendants.[15] Likewise, a plaintiff who is injured in space may be able to bring his action in a United States court if the defendant is subject to the personal jurisdiction of that court.
If a plaintiff can successfully argue territorial or personal jurisdiction exists, they then must overcome the next hurdle. What choice of law should the judge apply? This is especially important when the plaintiff pleads a violation of statutes. In a terrestrial international lawsuit, American courts are hesitant to apply United States statutes when the entire story occurs abroad.[16] This policy is intended to foster comity between the Unties States and its neighbors, since our laws may differ from the country where the incident occurred.[17] However, if Congress worded the statute at issue to clearly show they intended for it to ban unlawful behavior abroad, courts will allow the claim to go forward.[18]
This choice of law issue has some practical relevance when it comes to antitrust. Two corporations providing Moon rover tours could collude together to edge out competition. The Supreme Court has been hesitant to apply antitrust statutes when the conduct occurs abroad even if both parties are American corporations.[19] What remedy would be available to the plaintiff in such a scenario?
Obviously, the rationale of comity does not currently apply to space. No country can assert jurisdiction over celestial bodies as per the Outer Space Treaty. Thus, courts will not hurt international relations by applying United States statutes to incidents occurring in outer space. In our above hypothetical, the injured corporation could probably successfully petition a judge to apply the antitrust laws. It would be interesting to see how courts approach this issue.
With intrepid explorers preparing to sail into the cosmic ocean, courts will be faced with new frontiers of law. Jurisdictional issues are bound to appear on the horizon as injured parties look for a proper venue to bring their claim. Although the United States has exercised some form of jurisdiction over criminal acts in space, it is unclear whether civil suits can also be brought in United States courts or what choice of law will applied.
Footnotes
[1] See Carl Sagan, Cosmos 2 (2013).
[2] https://www.nasa.gov/specials/artemis/
[3] Id.
[4] See Neil deGrasse Tyson, Astrophysics for People in a Hurry 34 (2017).
[5] https://www.virgingalactic.com/smallstep
[6] https://en.wikipedia.org/wiki/DearMoon_project
[7] https://www.businessinsider.com/elon-musk-plans-1-million-people-to-mars-by-2050-2020-1
[8] https://en.wikipedia.org/wiki/Outer_Space_Treaty
[9] https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html
[10] https://lunarembassy.com/about-lunar-embassy-buying-property-on-the-mo0n/
[11] 18 U.S.C. § 7(6).
[12] 18 U.S.C. § 1111(b).
[13] https://www.space.com/who-investigates-space-crime.html
[14] Id.
[15] See EEOC v Arabian Am. Oil Co., 499 U.S. 244 (1991) (exercising jurisdiction over an American corporation for conduct occurring in Saudi Arabia).
[16] Id. at 248.
[17] Id.
[18] Id.
[19] See American Banana Co. v United Fruit Co., 213 U.S. 347 (1909) (holding that antitrust laws do not apply when the entire incident occurs abroad even if both the plaintiff and the defendant are U.S. citizens).