Closing the Blast Doors: Constructing Comprehensive Space Safety Standards in a Galaxy Not So Far Away

In 2003 Gregory Nemitz sued NASA for infringing on his property rights by parking on “his” asteroid. He alleged that he was entitled to parking fees, citing his registration on the Archimedes Institute website of the asteroid in question. Unsurprisingly, his case was dismissed. The court stated that his Fifth, Ninth, and Tenth Amendment claims all failed, because there are no “constitutionally protected property interest[s]” in outer space. Nemitz tried to argue that, because NASA had a declared purpose of facilitating “the fullest commercial use of space,” he should prevail. However, the court disagreed, stating that he could not prove the required “legal basis for his claim of a private property right on an asteroid.”

At the time, Nemitz’s claim seemed frivolous and almost laughable. Now, however, it seems as though he will not be the first or the last person to sue over property rights, or any legal rights, for that matter, in space. Since the space race of the 1950s, the global space industry has rapidly grown from a field reserved for technologically-advanced nations to one accessible to anyone who can pay. By the early twenty-first century, nations began outsourcing national space programs to private companies, blurring the traditional distinction between “spacefaring” nations, such as the United States, Russia, China, and Europe (represented by the twenty-two-nation cooperative European Space Agency), and “non-spacefaring” states. The advent of commercial space companies, such as SpaceX and Virgin Galactic, have made the growth of space tourism possible.

Each year, the United Nations General Assembly adopts a resolution entitled “International Cooperation in the Peaceful Uses of Outer Space,” which, while not legally binding, offers guidance to states on the conduct of space activities. With the commercialization of spaceflight, however, a more concrete set of laws is necessary to make the industry of space tourism as safe as possible. The international community should look to the international maritime standards of safety as a guide for this process.

This note will proceed as follows. First, it will provide context and background on the need for safety standards in space. Next, it will analyze the three main parallels to space law and explain why maritime law has the most applicable standards for safety. Then, it will address various safety risks that have been highlighted by NASA and will conclude by suggesting modifications of the international maritime safety standards for application to space.