Some Legal Aspects of Private Space Stations
By
Ram S. Jakhu
Associate Professor
Institute of Air and Space Law
McGill University
16 March 2015
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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.
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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.
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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)
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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THANK YOU FOR YOUR ATTENTION
Thank you
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