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Torts in space: who is liable?
by Adam Lawlor, Law II
On October 4th, teams from the University
of Leiden and Georgetown University
faced off in the final round of the
Manfred Lachs Space Law Moot, held at
the UBC Law School. The moot was held
in conjunction with the 55th International
Astronautical Congress, which also took
place in Vancouver that week.
Attendees from national governments
and academia, as well as curious UBC law
students, looked on as the mooters made
impressive arguments before Judges
Vladlen Vereshchetin, Abdul Koroma, and
Francisco Rezek of the International Court
of Justice.
The moot problem involved an intriguing
international dispute arising aboard a
space station owned by the fictional nation
of Palladia. Lorena Basinska, a young
model and comedienne from the developing
nation of Zirconia, visits the space station
aboard a Palladian spacecraft. While
on board, the attractive Basinska is sexually
harassed by a frisky, middle-aged
crewmember, Jacques Toussaint.
After days of being subjected to harassment,
Basinska retaliates by assaulting
Toussaint, necessitating his return to Earth
and the cancellation of numerous experiments.
On the return flight, Basinska herself
is tragically disfigured by a piece of
loose equipment, thereby ending her career.
Following this incident, all Zirconian space
tourists are banned from visiting the
Palladian space station.
The mooters primarily discussed issues
relating to national responsibility for the
damages caused by Basinska and the
Palladian crew. The issue of discriminatory
access to space installations was also discussed.
Representatives of Palladia, from the
University of Leiden (Netherlands), argued
for a broad approach to the concept of national
responsibility in space, contending
that responsibility for the actions of persons
in space lies with the country of which
they are nationals. They also argued that a
host nation should be able to control which
countries’ citizens are allowed access to a
national space station.
Representatives of Zirconia, from
Georgetown University (Washington, DC),
Outer Space Treaty (1967)
• States that the exploration and use of outer space, including celestial bodies, shall be
carried out for the benefit and in the interest of all countries.
• Prevents national appropriation of outer space, including celestial bodies.
• Extends the application of international law to outer space.
• Outlaws the installation of nuclear weapons in space, and forbids military manoeuvres
on celestial bodies.
• Obliges participating states to provide assistance to astronauts of other nationalities.
• Appropriates national responsibility for activities in space.
• Allocates ownership and jurisdiction over objects launched into space.
• Allows participating nations to visit space installations of other participating nations
with reasonable notice.
Rescue Agreement (1968)
• Provides concrete provisions for the safe return of astronauts and space objects to
their launching nation
Liability Convention (1972)
• Allocates national liability for a variety of scenarios in which damage may be caused
by space objects.
• Allows for the establishment of a claims commission to resolve disputes.
Representing Palladia, from the University of Leiden: Anette
Cartier (coach), Taras Ploshchansky (coach), Ioana Cristoiu and
Nathaniel Horsley.
argued for a narrow approach to national
responsibility, contending that responsibility
for damages in space must lie with the
launching nation of a space flight, since
that is the nation which exerts effective
control over the flight. As well, they argued
that a national space station must allow
equal access to citizens of all countries.
Both teams were kept on their toes by
the judges, especially by the modest yet
knowledgeable Judge Vereshchetin. The
teams were quizzed on applicable international
law, including the Outer Space
Treaty (yes, there is an Outer Space Treaty)
Some Sources of Space Law (in case you were wondering)…
and the Convention on International Liability
for Damage Caused by Space Objects.
Both teams were very articulate and
made strong arguments, but in the end the
judges held in favour of Palladia, which
arguably had the tougher case to make. The
judges did not give reasons for their ruling
– perhaps because the issues at hand may
find themselves before their court one day.
If I were judging this case on its merits,
I think I would be forced to dissent on
the ruling – but then there’s a reason why
this second year law student hasn’t been
promoted to the bench.
Not so moot…
Space law is a burgeoning field, which
will arguably see growth with the dawn of
commercial space tourism. Richard
Branson of Virgin Group recently announced
that he hopes to be flying tourists
to space by 2007. His new company, Virgin
Galactic, will launch travelers into
space (just barely) at a cost of about $190
000 US per seat, which will include several
days of training. The first ship, to be
named “Enterprise,” will be based upon the
design of SpaceShipOne, which recently
won the Ansari X-Prize competition to
build and fly a reusable commercial spacecraft.
More about space lawyering…
It is clear from the arguments made in
the space moot that space lawyering has
the potential to be an exciting career. Many
treaties applying to space were negotiated
at the dawn of space flight, and did not
necessarily envision the type of space ac-
Registration Convention (1974)
• Obliges nations to maintain a register of all objects launched into outer space.
Moon Treaty (1979)
• Extends similar principles to those laid out in the Outer Space Treaty.
• Allows for the establishment of moon installations but prevents claims to ownership
on the moon, including ownership of natural resources.
• Contains provisions to prevent environmental contamination of the moon.
Some nations also have domestic laws governing space travel. For example,
Criminal Code of Canada, s. 7(2.31):
“Despite anything in this Act or any other Act, a crew member of a Partner State who
commits an act or omission outside Canada during a space flight on, or in relation to,
a flight element of the Space Station or on any means of transportation to and from
the Space Station that if committed in Canada would constitute an indictable offence
is deemed to have committed that act or omission in Canada if that act or omission
(a) threatens the life or security of a Canadian crew member; or
(b) is committed on or in relation to, or damages, a flight element provided by Canada.”
compiled by Adam Lawlor, Law II
Page 6 The Legal Eye November 2004