By Ram S. Jakhu Associate Professor Institute of Air and Space Law McGill University 16 March Some Legal Aspects of Private Space Stations

Introduction In 1971, the Soviet Union launched Salyut-1, world’s first space station. Since then a number of space stations have been launched & operated. Space-faring nations, particularly the Soviet Union/Russia and the United States, have gained extensive expertise in such space activities. The latest and the most significant space station is the ISS. This is technologically the safest civilian facility and operationally highly successful venture for long-duration human presence in space. These space stations have been financed and operated by States primarily for space research purposes. 2

Introduction However, recently several private companies, led by Bigelow Aerospace of the U.S., have initiated the planning of various commercial PSS. This development raises some legal questions for the operation of PSS. The term ‘space station’ is used here to mean only those facilities that are launched and operated to provide regular long-duration habitat for humans in space for various purposes. My paper addresses some legal issues related to PSS; specifically, it covers international and national issues related to legal status, licensing, registration and jurisdiction, and liability. Since Bigelow is ahead of others companies in the world, I will use this enterprise as an example for discussion here. 3

Legal status International legal status of a PSS will be the same as that of any other public or private space object; i.e. the launch and operation of a PSS will be a national space activity under Article VI of the Outer Space Treaty. States “bear international responsibility for” their PSS-related activities. Launch and operation of a PSS “require authorization and continuing supervision by the appropriate State.” (i.e. requirement of a license under the national laws & regulations of such State) The “appropriate State” for a PSS will be the State of incorporation of a PSS entity and the State which has the genuine link to the concerned PSS. (Barcelona Traction & Nottebohm) 4

Licensing At this stage, I am not aware of any particular U.S. space law or regulation that is specifically applicable to the launch or operation of PPS. However, recently the U.S. FAA has started interpreting broadly its regulatory authority under the Commercial Space Launch Act (CSLA) E.g., in 2013, the FAA found Paragon’s World View helium balloon to fall under its jurisdiction though capsule would carry tourists only to about 30 kilometers. Last month, exercising its “payload review” authority under the CSLA, the FAA allowed Bigelow for setting up an inflatable station on the moon 5

Licensing Before issuing a license the FAA conducts several reviews, which include Policy Review, Safety Review, Payload Review, & Environmental Review. The FAA is authorized to impose numerous terms and conditions, which must be complied with by the licensee. This way the FAA, would impose safety standards and operational procedures to be complied with by Bigelow. The U.S. has gained extensive knowledge and experience in building and operating space stations, particularly the ISS. Therefore, it should not be difficult for FAA to design and adopt safety standards and operational procedures for PSS. 6

Licensing If the Bigelow’s PSS is used for launching payloads in space, it would be required to get an additional license for operation of a “launch site” However, the current definition of ‘launch site’ covers only “the location on Earth.” This ought to be changed to allow Bigelow to provide launch services from its PSS. In addition, Bigelow will be required to obtain a license under the 1934 Communications Act, from the Federal Communications Commission for the use of radio frequencies by its PSS. 7

Registration and Jurisdiction From the international space law perspective, the U.S. will be the launching State or one of the launching States for Bigelow’s PSS. Thus the U.S. is required to register the PSS in its national registry and to register it with the United Nations. It is entitled to “retain jurisdiction and control over” the PSS, “and over any personnel thereof.” The U.S. national law under which it exercises its jurisdiction and control over its space objects is codified under 18 USC, Part 1, Chapter 1, § 7 (Special Maritime and Territorial Jurisdiction of the U.S.) While international space law entitles jurisdiction and control over “any personnel” of a space craft, the U.S. national law appears to extend its jurisdiction and control over all persons aboard a space craft. 8

Registration and Jurisdiction The U.S. can exert its civil and criminal jurisdiction and control over all persons, American nationals and foreigners, who will be visiting to a PSS. Consequently, all relevant laws and regulations and policies of the U.S. will be considered (mutatis mutandis) applicable to all American PSS. In order to maintain law and order on board a PSS, specific legal rules, regulations, policies and general code of conduct would need to be promulgated and applied by a regulatory body, like the U.S. FAA. In the U.S., the Code of Conduct for the International Space Station Crew, could serve as a good model for the purpose of providing standards of behavior, duties and powers for the crewmembers of PSS. However, it needs to be adapted for the specific purposes of PSS. 9

Registration and Jurisdiction To a good extent, PSS will be similar to cruise ships on the high seas. Therefore, rules and codes of conduct governing such ships could also be used as models to design codes of conduct for PSS. 10

Liability Two international space law treaties govern international liability for damage caused by space crafts, including PSS; i.e. the OST & the 1972 Liability Convention. The Convention establishes two tier system of liability of the launching State(s) for third party liability; i.e. absolute liability for damage caused on the surface of the earth or to aircraft in flight. If the damage is caused elsewhere than on the surface of the earth, the launching State(s) is liable only if the damage is due to its (their) fault or the fault of persons for whom it is (they are) responsible. Being the launching State for Bigelow’s PSS, the U.S. would be held liable for damage is caused by Bigelow’s PSS. 11

Liability Outside these two space law treaties, a fault-based liability regime under general international law could apply (ILC Article on State Responsibility). The application of this regime depends upon four conditions: an international obligation not to cause damage, this duty is imputable to a State, breach of that obligation, and a distinct link between the act and the harm suffered. If international remedies are not available, the victim may make a claim for compensation by presenting his case to an appropriate national court of the State of nationality or residence of the party that caused damage. In the case of Bigelow’s PSS, it will be a U.S. court that will decide the case applying its applicable national law. 12

Liability The U.S. has implemented its international obligation to pay third party compensation, for damage caused by its public and private entities (including Bigelow) under the CSLA. In order to minimize liability risks, the Act obliges a licensee to show its self-insurance capacity, or to obtain insurance, for the Maximum Probable Loss up to $500 million. The payment of compensation, if required, for an amount between the Maximum Probable Loss and $2 billion, the U.S. Congress agreed to indemnify the licensee. However, the licensee is liable for amount beyond $2 billion. In addition, the licensee is obliged to conclude cross-waivers of liability agreements between the licensee and all others involved in the licensee’s activity. 13

Liability Issues of liability for offences and violations (legal, contractual and tort) occurring on Bigelow’s PSS in-orbit would be settled according to the relevant national laws and regulations of the U.S., which would have civil and criminal jurisdiction over this facility. The liability of Bigelow, as the owner of its PSS, and its crewmembers would probably be governed by the relevant contracts of employment. Bigelow’s liability for death of or injury to visitors to Bigelow’s PSS or for damage to their property would probably be governed by the applicable contracts of carriage between the parties and relevant U.S. national laws. 14

Liability Visitors to a PSS would NOT be considered as “space flight participants” under the current provisions of the CSLA that govern launch vehicles and reentry vehicles (on sub-orbital flights), because PSS would NOT be launch vehicles and reentry vehicles. Space flight operators are required to seek from each space flight participant his/her “informed consent” in writing that he/she knowingly assumes the risks involved in such flights and voluntarily participates in such ventures. Thereby, space flight participants waive their right for compensation and this excludes liability of the space flight operator. This sort of protection could possibly be extended to the operators of private space stations, at least during first few years of their operations. 15

Concluding remarks With an extensive experience gained with government-owned space stations, it would not be extraordinarily difficult to design & promulgate laws, regulations and codes of conduct for smooth operation of PSS. However, these and other relevant legal issues need to be appropriately addressed in order to create regulatory certainty, which will facilitate profitable operation of these new space ventures. Though a significant amount of regulatory work still needs to be done, yet it appears that the U.S. is ready to license and to initiate regulation of commercial space stations of its private companies. U.S. regulatory model for PSS would be possibly a model for other States. 16

THANK YOU FOR YOUR ATTENTION Thank you 17