Justice for the new frontier: why the united nations should create a space court through a convention process

• Author: Ben Casey
• Position: Articles Editor, Texas Tech Law Review; J.D. Candidate, Texas Tech University School of Law; B.A., 2011, Texas Tech University
• Pages: 115-163

JUSTICE FOR THE NEW FRONTIER: WHY THE

UNITED NATIONS SHOULD CREATE A SPACE

COURT THROUGH A CONVENTION PROCESS

BEN CASEY*

ABSTRACT

Recent achievements by private space companies have widened access to outer

space beyond government actors. Such innovation complicates the existing legal

framework for outer space, which was heavily influenced by Cold War govern-

ment policies. It also raises questions about the framework’s continued applic-

ability to contemporary private sector space exploration. As a result of the

framework’s potential destabilization by the private space sector, calls for

changes to the traditionally state-exclusive domain are being made with increas-

ing frequency.

This Article argues how and why the United Nations should, through its

convention process, modify space law to incorporate private actors. Space law is

currently fragmented amongst treaties, multilateral agreements, and national

legislation, leaving private actors unprotected. An emerging trend of filling

gaps in space law with national legislation is worrisome because it encourages

post-Cold War geopolitical tensions, in direct opposition to foundational space

treaty principles.

Bringing private actors into the legal framework for outer space must be a

priority. This article advocates for the United Nations to call a convention to

comprehensively modify the outer space legal regime, to create a space court simi-

lar to the Tribunal of the Law of the Sea (ITLOS), and to include non-govern-

mental interests through the granting of permanent observer status. Using the

International Tribunal for the Law of the Sea (ITLOS) as a guide, this Article

argues that an equivalent tribunal for outer space is the best chance for address-

ing future space disputes and for granting legal protections to private entities

operating in space. It further argues that a space court expands the rule of law

into outer space, furthers the mandate of the United Nations and existing space

treaties, and is adaptable to a rapidly evolving area of law.

* Ben Casey, Articles Editor, Texas Tech Law Review; J.D. Candidate, Texas Tech University

School of Law; B.A., 2011, Texas Tech University. The author wishes to thank Dean Jack Wade

Nowlin, Associate Dean Jamie Baker, Professor Michael S. Dodge, Professor Jorge A. Ramı´rez,

Professor Vickie Sutton, and Lawson Hamilton for their editorial contributions and feedback

through the writing process of this Article. Further, the author wishes to thank his wife, Sabra, for

her continuous love and support. V

C 2023, Ben Casey.

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I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

II. CONSTANTLY EXPANDING: SPACE LAW MEETS THE PRIVATE

SECTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

A. Origins of International Law: Custom and Treaty. . . . . . . . 119

B. Geopolitical Analogies Lead to Space Treaties . . . . . . . . . . . 122

C. We Have Liftoff: The Booming Private Space Industry . . . . . 125

III. UN-CONVENTIONAL METHODS: INTERNATIONAL LAW GETS ITS SEA

LEGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

A. Path from Draft Resolution to Adopted Convention . . . . . . . 129

B. Waving Hello to the Law of the Sea . . . . . . . . . . . . . . . . . . 130

IV. ALIGNING THE STARS FOR A SPACE LAW UPDATE . . . . . . . . . . . . . 134

A. Treating Space as the Unique Domain That We Know It to

Be . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

B. Current Space Law Is Not Equipped to Handle Private

Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

C. The UN Plays a Vital Role in Addressing Private Parties . . . 145

V. A PROPOSAL FOR AN UNITED NATIONS CONVENTION ON THE LAW

OF OUTER SPACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

A. From Ocean Floors to Night Skies: Law of the Sea as a Model

for a Space Convention. . . . . . . . . . . . . . . . . . . . . . . . . . . 151

B. A Seat at the Table: Granting UN Observer Status to the

Private Sector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

C. The Political Feasibility of a Space Convention . . . . . . . . . . 158

VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

I. INTRODUCTION

Picture this: two tourists, floating in the vacuum of space, enjoying a

beautiful view of Earth. The first tourist snaps picture after picture,

blinding the second tourist with their camera’s flash. Angry and

incensed after several minutes of this, the second tourist yanks the cam-

era out of the first tourist’s hands and pushes the tourist in the chest of

their space suit. The placement of the shove damages the oxygen deliv-

ery mechanism of the first tourist’s space suit, and the loss of oxygen

causes the tourist to panic and suffer a heart attack. Since the assault

did not occur on a spacecraft, could the first tourist sue the second? If

so, in what court? Hypothetical situations like these are no longer far-

fetched and must be addressed quickly.

Advancements in the capability for private spaceflight raises many

questions— unfathomable during the space race of the 1960s—about

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116 [Vol. 54

the use and exploration of outer space by private entities.

1

The law

must change to account for emerging technologies and their attendant

issues.

2

E.g., Julia Griffith, A Losing Game: The Law is Struggling to Keep Up with Technology, J. HIGH

TECH. L. (Apr. 12, 2019), https://sites.suffolk.edu/jhtl/2019/04/12/a-losing-game-the-law-is-

struggling-to-keep-up-with-technology/ (“It has been estimated that the law is at least five years

behind developing a technology.”).

Current legal protections for private entities in outer space are

inadequate, as are many of the proposed solutions to this problem.

3

Inevitably, disputes will arise from private action in outer space. This

underscores the urgent need for a “space court.”

4

See Chris Impey, Is Conflict in Space Inevitable?, THE HILL (Oct. 8, 2021, 11:30 AM), https://

thehill.com/opinion/international/575903-is-conflict-in-space-inevitable.

Existing space law is

based on international treaties that confer legal protections to nations

alone.

5

However, the United Nations (UN), with its foundational pur-

pose of global peace and security, can play a vital role in harmonizing

space law for private and governmental parties alike.

6

To this end, there

are two major actions the UN should take: first, call a convention to reg-

ulate and write rules for all areas and uses of outer space, and second,

grant non-governmental organizations observer status in the conven-

tion and in the General Assembly.

This Article discusses the practicality of these two major actions. The

scope of this Article is not focused on the particulars of such a court

(i.e., the court’s physical location, how to calculate damages, etc.), but

instead is focused on its achievable formation and the potential result-

ing benefits. Part II provides a primer on international law, how the five

primary space treaties were influenced by geopolitics, and how recent

capabilities in the private space industry destabilize the status quo. Part

III discusses the function and authority of the UN General Assembly

and reviews the Convention of the Law of the Sea as an example of the

convention process. Part IV argues that to account for private actors in

1. See G.A. Res. 2222 (XXI), annex, Treaty on Principles Governing the Activities of States in

the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Dec.

19, 1966) [hereinafter Outer Space Treaty] (relating the purpose and aims of the treaty to

nations and countries).

2.

3. See Kennedy Williams, Note, Space Crime Continuum: Discussing Implications of the First Crime in

Space, 39 B.U. INT’L L.J. 79 (2021); Matthew B. Hershkowitz, Deep Space (Treaty) Exploration:

Reviving Today’s Obsolete Space Treaties, 28 MICH. ST. INT’L L. REV. 1 (2019); Nina Tannenwald, Law

Versus Power on the High Frontier: The Case for A Rule-Based Regime for Outer Space, 29 YALE J. INT’L L.

363 (2004); Ty S. Twibell, Note, Space Law: Legal Restraints on Commercialization and Development of

Outer Space, 65 UMKC L. REV. 589 (1997).

4.

5. See infra Parts II.C (describing recent trends in the private space industry) and IV.B

(limitations of UN space treaties).

6. See U.N. Charter ch. I (establishing the purposes and principles of the Charter).

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