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Space: The Final Frontier of Litigation?

With the goal of ensuring the amicable sharing of other-worldly resources, international, national and private organizations conducted, or will be conducting in the near future, informational symposiums aimed at finding the best practices of space law.

While the American Bar Association Space Law Symposium is slated for June 9 in Washington D.C., the United Nations Office for Outer Space Affairs, the Secretariat for the Legal subcommittee of the United Nations committee on the Peaceful Uses of Outer Space, just wrapped up a symposium from March 18 to March 20 in, Montréal, Canada. The office of outer space affairs is the “primary international forum for the development of laws and principles governing outer space,” according to information from the U.N.

A week before that symposium, the San Diego-based Air Law Institute held its second annual Air & Space Symposium at the California Western School of Law and San Diego Air & Space Museum. Each event brings experts, questions, concerns and discussions regarding the growing need to address legislating space.

The U.N. event was geared toward a review of existing regulations, practices, and safety with respect to “civil aviation, suborbital and orbital spaceflight,” according to information from the U.N. It also focused on the “evolving nature” of space transport and potential challenges that may arise from its proliferation.

The ABA event will hit on the functions of regulatory agencies, among other items. “Legal topics frequently touch on labor, finance, litigation, environment and antitrust matters, as well as regulatory issues arising from governmental entities such as FAA, DOT, NASA and EASA,” said Robert Span, the 2013-2015 chairman of the forum of air and space law, in a message to attendees.

Joanne Irene Gabrynowicz has been teaching space law since 1987, is a former editor-in-chief of the Journal of Space Law and has written extensively on the complex topic. “Space, like the Antarctic and the high seas, is a global commons. However, unlike with the other global commons, the international law that governs space developed rapidly—within months rather than decades or centuries,” she said.

She discusses public-private partnerships with respect to the exploration and use of outer space as well as international treaties, communications monopolies and the distinctions between aviation law and space law in her writings.

Matthew Kleiman, corporate counsel at the Draper Laboratory in Cambridge, Mass., who is also chairman of the space law committee of the ABA Section of Science and Technology Law and a teacher at Boston University, identified some key areas that will likely become substantial parts of the space law conversation in an informational summary for the ABA.

Essentially, the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, which serves as the foundation for governing space law, enumerates the principles of the benevolent, weapons free, sharing of outer space. Regular space travel, either in the form of short trips or full-fledged visits to the International Space Station is on the horizon.

“Space companies, legislatures and courts will need to address questions of liability in the event of accidents, the enforceability of liability waivers, insurance requirements, and the sufficiency of informed consent for passengers," he said. "Indeed, Florida, New Mexico, Texas, and Virginia have already passed laws limiting the liability of space tourism providers under state tort law.”

Further, space debris, its removal, avoidance and potential to cause damage, also yields a number of questions. Countries are only liable for damage to other space crafts if negligence can be proved, he said.

“There is no commonly accepted standard for operating spacecraft in a manner to completely avoid the creation of new space debris, so showing that a spacecraft operator acted negligently could be difficult. It may also be impossible to determine who is ultimately responsible for a debris collision since it is difficult to establish with certainty the origin of most space debris.”

Further, a growing accumulation of debris could actually make the operation of spacecraft in earth’s orbit impossible. Other concerns include an uneven international playing field due to varying degrees of regulation. The “flag of convenience” may lead to private companies registering with countries that simply offer the lowest taxes and environmental restrictions. For information on the ABA symposium, visit http://www.americanbar.org/groups/air_space.html.

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