by Jason A. Driscoll*

Is damage to a lunar mining facility actionable under the Outer Space Treaty when the facility is built on the surface of the Moon and made entirely from lunar rock? In this Contribution, Jason A. Driscoll (’18) analyzes a wrinkle in the law of outer space, contemplating whether the current outer space tort regime protects damage to property crafted entirely from materials mined in outer space. The Contribution argues that the current regime does not protect and cannot account for the unprecedented, though possible, practice of manufacturing objects in outer space using extraterrestrial materials.

In 1967, the United States, the Soviet Union, and the United Kingdom drafted a framework multilateral treaty known as the Outer Space Treaty.2 Despite its near-infinite jurisdiction, the Treaty established just seventeen articles regulating the exploration and use of outer space, focusing on first principles.3 For example, the Treaty prevents the militarization of space,4 mandates cooperation among nations in outer space,5 and forbids the sovereign appropriation of the moon and other celestial bodies.6 As of July 2017, 107 countries are parties to the Outer Space Treaty, and another 23 have signed the Treaty but have not yet completed ratification.7

The Treaty also created a tort liability regime for signatory states. Article VII of the Treaty makes State Parties internationally liable for damage they cause to another nation’s property.8 Adopted against the backdrop of the 1960s space race, this article anticipates damage stemming from collisions and accidents involving objects launched into outer space. A more specific treaty called the Liability Convention further refined this regime. Signed in 1972, the Liability Convention establishes two tiers of liability. A launching state is “absolutely liable” for damage caused by its space objects on Earth,9 but when damage occurs in outer space a state is liable only if that damage is “due to its fault.”10 Through this two-tiered approach, the Liability Convention imposes heightened duties on nations during a launch and provides a nation with a cause of action when injured in outer space by another signatory state.

Property manufactured from extraterrestrial material may fall outside this two-tiered system. The fault-based regime governing damage in outer space is limited to damage sustained by a nation’s “space object[s].”11 This limitation presents an intriguing hurdle to a new generation of entrepreneurs seeking to make industrial use of space materials. While recent political debate has focused on the legality of private sector space exploration altogether,12 a secondary question involves whether property constitutes a “space object” protected by international law at all. The extent to which materials mined in space—and objects manufactured using such materials—are protected under the Liability Convention’s tort regime remains an open question.

While no nation has yet manufactured objects exclusively out of extraterrestrial resources, the basic idea is close to being tested. In fact, NASA has already paired with private sector partners to utilize 3D printing technology in outer space.13 Recently, NASA utilized this technology to print a wrench on the International Space Station.14 Current plans contemplate producing entire satellites or facilities in outer space using indigenous materials.15 More importantly, companies are beginning to see potential in commercial manufacturing using outer space material.16 Governments are already legislating to accommodate these private sector goals. In 2015, the United States passed legislation legalizing commercial mining in outer space, prescribing a framework for companies seeking to obtain ownership over outer space resources.17 Luxembourg recently passed similar legislation.18 However, unless and until the outer space treaties are refined with an eye toward the 21st Century, it is unclear what liability or protection is afforded to parties seeking to engage in these practices.

The text and history of the term “space object” suggest that a “space object” is an object launched by a State Party into outer space from Earth.19 Property constructed entirely in outer space using space materials was never launched, so it is therefore not protected by the current Liability Convention’s tort regime. If this reading is correct, Article III of the Liability Convention fails to account for an important category of property, given the growing possibility of bringing commercial and national manufacturing into outer space. This limited reading of “space object” finds support in traditional principles of statutory interpretation and the historical uses of the term. This gap muddies international space law and could impede nations and private entities from investing in otherwise beneficial uses of outer space resources.

* * * * *

The plain text of the Liability Convention supports a limited understanding of tort liability in outer space. Article III clearly limits its protection to certain classes of property:

In the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault . . . .20

Two limiting principles appear in Article III. First, actionable damage is limited to damage sustained by a “space object.”21 While the term “space object” is never defined in the treaties governing outer space, the Liability Convention states that “[t]he term ‘space object’ includes component parts of a space object as well as its launch vehicle and parts thereof.”22 Applying the last antecedent rule of statutory construction to the “its” in “its launch vehicle” suggests that space objects are objects that were actually launched into outer space.23

Second, the damaged property must be the space object “of [a] launching State.”24 Thus, a “space object,” as narrowed by this adjective prepositional phrase, must have a “launching State,” which limits Article III’s protections to those objects actually launched from Earth. To fully understand the treaties’ concept of a “launching State,” one must look to the Registration Convention, which governs launches.

The Registration Convention was promulgated in 1974 to clarify ownership of objects launched into outer space.25 Article II of the Registration Convention mandates that States register any object launched into Earth orbit or beyond.26 The Convention also requires states to provide a description of the object, its launch details, and its general function.27 Pursuant to the Convention, State Parties to the treaty and the United Nations must maintain national and international registries in order to centralize property management in outer space and assign responsibility for space objects.28

The meaning of “launching State” is also narrow, further indicating a more limited notion of tort liability in the Liability Convention. Article I of the Registration Convention defines “launching State” as “(i) A State which launches or procures the launching of a space object; [or] (ii) A State from whose territory or facility a space object is launched.”29 Because a launching State must launch or procure the launch of an object to become a launching State,30 a State does not clearly become responsible for an object until the object is involved in a launch and subject to registration. Therefore, Article III of the Liability Convention should be read to protect only those objects launched into outer space from Earth and not those manufactured in outer space out of indigenous resources. As a corollary, property that is properly launched and registered under the Registration Convention should enjoy a strong presumption of protection under Article III of the Liability Convention.31

Other principles in the Outer Space Treaty make this interpretation the preferred result. Allowing States to claim damage to property manufactured out of outer space resources would violate the non-appropriation principle embraced by the outer space treaties. Article II of the Treaty contains the most prominent articulation of the non-appropriation principle, preventing nations from claiming sovereignty over the commons in space:

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.32

The practice of mining celestial bodies for manufacturing purposes would likely constitute a direct violation of Article II’s non-appropriation principle, especially if done by a state.33 Allowing countries to then pursue tort liability for damage to such property would undermine compliance with and enforcement of Article II. Such a protection would clash with the spirit of the Outer Space Treaty, which forbids unilateral use of outer space resources.34

The historical understanding of the term “space object” and the Outer Space Treaty drafting history likewise support a more limited reading of Article III. Even prior to the promulgation of the space law treaties, the Convention for the Establishment of a European Organization for the Development and Construction of Space Vehicle Launchers (ELDO) defined a “space vehicle” as “a vehicle designed to be placed in orbit as a satellite of the Earth or of another heavenly body, or to be caused to traverse some other path in space . . . .”35 Similarly, in the 1963 Declaration of Legal Principles, which served as the precursor to the 1967 Outer Space Treaty, “space object” was referred to as an “object launched into outer space.”36 When drafting the 1967 Outer Space Treaty against this backdrop, the Treaty alluded to a “space object” as “an object launched into outer space,” including “objects landed or constructed on a celestial body.”37 Lastly, when defining “space vehicle” in the 1980 NASA Authorization Act, the United States used the following definition: “an object intended for launch, launched or assembled in outer space, including the Space Shuttle and other components of a space transportation system . . . .”38 Legislation introduced before the House of Representatives in early 2017 maintains these limitations.39 This history suggests that property manufactured in outer space out of outer space materials does not enjoy the status of a “space object” and is therefore not protected under Article III of the Liability Convention.

* * * * *

The age of outer space manufacturing is just on the horizon and rapidly developing. In contrast, the international legal framework governing outer space activity is now fifty years old and outdated. This alone presents a caveat utilitor regime for anyone seeking to make industrial use of outer space. Presented above, the limited reading of the term “space object” in Article III of the Liability Convention threatens the idea that a cause of action will lie in an outer space manufacturing environment. While this narrow reading finds support in traditional principles of statutory interpretation and the historical uses of the term, the reading will be tested against a new generation of pioneers. If “permissionless innovation”40 truly is the order of the day, then the text of the Liability Convention must yield, and the tort regime in outer space must protect investments that make use of outer space’s indigenous resources.

Recommended Citation: Jason A. Driscoll, Caveat Utilitor: A Tort Regime for Outer Space, 2018 N.Y.U. Proceedings 2, http://proceedings.nyumootcourt.org/2018/01/caveat-utilitor-a-tort-regime-for-outer-space/.

* Jason A. Driscoll is a 3L at New York University School of Law. This piece is a commentary on the 2017 Problem at the Manfred Lachs Space Law Moot Court Competition hosted at Georgetown University Law Center in Washington D.C. The problem dealt with a potential tort stemming from a collision between a rover and a mining facility on the surface of the Moon. The views expressed in this article do not necessarily represent the views of the author on this point of law. Rather, this article is a distillation of one side of an argument addressed at the Manfred Lachs Competition.
2. See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, T.I.A.S. No. 6247 [hereinafter “Outer Space Treaty”].
3. See id.
4. See id. at art. IV.
5. See id. at art. III.
6. See id. at art. II.
7. Status of International Agreements relating to Activities in Outer Space, United Nations Office for Outer Space Affairs (July 2017), http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/status/index.html.
8. See id. at art. VII.
9. Convention on International Liability for Damage Caused by Space Objects of March 29, 1972, art. II, entered into force Sept. 1, 1972, 10 I.L.M. 965 [hereinafter “Liability Convention”].
10. Id. at art. III.
11. Id.
12. See American Space Commerce Free Enterprise Act of 2017, H.R. 2809, 115th Cong. § 80101(11) (2017) (introducing legislation seeking to expand private enterprise in outer space); U.S. Commercial Space Launch Competitiveness Act, Pub. L. No. 114-90, 129 Stat. 704 (2015) (“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”); see also Kenneth Chang, If No One Owns the Moon, Can Anyone Make Money Up There? N.Y. Times, Nov. 28, 2017, at D1, https://www.nytimes.com/2017/11/26/science/moon-express-outer-space-treaty.html.
13. See NASA Completes Testing on 3-D Printer, NASA (June 24, 2014), https://www.nasa.gov/centers/marshall/news/news/releases/2014/14-105.html
14. See Space Station 3-D Printer Builds Ratchet Wrench To Complete First Phase Of Operations, NASA (Dec. 22, 2014), https://www.nasa.gov/mission_pages/station/research/news/3Dratchet_wrench.
15. See, e.g., Molly Porter, NASA Opens $2 Million Third Phase of 3D-Printed Habitat Competition, NASA (Nov. 7, 2017), https://www.nasa.gov/directorates/spacetech/centennial_challenges/3DPHab/nasa-opens-2M-third-phase-of-3d-printed-habitat-competition; Arjun Kharpal, Coming Soon: 3D Printing Satellites in Outer Space, CNBC (July 12, 2016), https://www.cnbc.com/2016/07/12/coming-soon-3d-printing-satellites-in-outer-space.html.
16. See, e.g., Kenneth Chang, supra note 11; Dan Tynan, Galactic Gold Rush: the Tech Companies Aiming to Make Space Mining a Reality, The Guardian (Dec. 6, 2016), https://www.theguardian.com/science/2016/dec/06/space-mining-moon-asteroids-tech-companies; Andrew Mosemen, Moon-Rock Bricks Could Build Lunar Bases and Settlements, Popular Mechanics (Sept. 30, 2009), http://www.popularmechanics.com/space/moon-mars/a3937/4298478/.
17. See U.S. Commercial Space Launch Competitiveness Act, Pub. L. No. 114-90, 129 State 704 (2015) (“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”).
18. See A Legal Framework for Space Exploration, Ministry of the Econ., Lux. (July 13, 2017), http://www.luxembourg.public.lu/en/actualites/2017/07/21-spaceresources/index.html.
19. See H.A. Baker, Liability for Damage Caused in Outer Space by Space Refuse, 12 Ann. Air & Sp. L. 183 at 225 (1988). H.A. Baker postulates that a “space object” means:

  1. any object

(a)  intended for launch, whether or not into orbit or beyond;

(b)  launched, whether or not into orbit or beyond; or

(c)  any instrumentality used as a means of delivery of any object as defined [herein]; and

  1. Includes

(a)  any part thereof or

(b)  any object on board which becomes detached, ejected, emitted, launched or thrown, either intentionally or unintentionally, from the moment of ignition of the first-stage boosters.

20. Liability Convention, supra note 9, at art. III (emphasis added).
21. Id.
22. Id. at art. I(d).
23. See generally Lockhart v. United States 136 S. Ct. 958 (2016) (considering application of the last antecedent rule).
24. Id.
25. See Convention on Registration of Objects Launched into Outer Space, Sept. 15, 1976, 1023 U.N.T.S. 15 [hereinafter “Registration Convention”].
26. See id. at art. II.
27. See id. at art. IV.
28. See id. at art. II.
29. Id. at art. I.
30. Id. (“(a) The term “launching State” means: (i) A State which launches or procures the launching of a space object; (ii) A State from whose territory or facility a space object is launched . . . .”.
31. See V. Kayser, Launching Space Objects: Issues of Liability and Future Prospects 45 (2001).
32. Outer Space Treaty, supra note 2, at art. II.
33. See Ricky J. Lee, Law and Regulation of Commercial Mining of Minerals in Outer Space 164–170 (Springer Science & Business Media eds., 2012). But see Sarah Coffey, Note, Establishing a Legal Framework for Property Rights to Natural Resources in Outer Space, 41 Case W. Res. J. of Int’l L. 119, 126 (2009) (arguing that the treaties do not prohibit ownership of resources extracted from celestial bodies). See also Leslie I. Tennen, Outer Space: A Preserve for All Humankind, 2 Hous. J. Int’l. L. 145, 149 (1979) (positing that the customary prohibition on the appropriation of outer space extends to private actors).
34. See Eilene M. Galloway, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 5 Ann. Air & Sp. L. 481, 498–499 (1980) (suggesting that unilateral mining exploits violate the outer space treaties’ customary prohibition on nonappropriation).
35. Joyeeta Chatterjee, Legal Issues Relating To Unauthorized Space Debris Remediation, Int’l Astronautical Fed’n (2014), https://iislweb.org/docs/Diederiks2014a.pdf.
36. Id.
37. Outer Space Treaty, supra note 2, arts. VII & VIII.
38. National Aeronautics and Space Administration Authorization Act, 1980, Pub. L. No. 96-48, 93 State 348, § 308(f) (1979).
39. American Space Commerce Free Enterprise Act of 2017, H.R. 2809, 115th Cong. § 80101(11) (2017) (“The term ‘space object’ means—(i) a human-made object located in outer space, including on the Moon and other celestial bodies, with or without human occupants, that was launched from Earth, such as a satellite or a spacecraft, including component parts of the object; and (ii) all items carried on such object that are intended for use in outer space outside of, and independent of, the operation of such object.”).
40. Kenneth Chang, supra note 11.