Determining Liability for Space Launches

ABSTRACT

Increased space activity by private actors poses a little-known risk to the United States: massive liability for the U.S. government if U.S.-launched space objects cause damage to the Earth due to the Liability Convention of 1972. This article analyzes that risk and argues that a foreign plaintiff could sue the United States for damages caused by a falling satellite. It also provides policy recommendations to reduce potential U.S. liability while promoting private space activities.

Introduction

Space has returned to the forefront of the American imagination for the first time since the height of the space race during the 1960s.[i] In 1984, there were roughly 1,400 Earth-orbiting satellites.[ii] In 2020, there were nearly 6,000.[iii] By 2028, there may be more than 15,000 satellites orbiting the planet with an average of 990 launched each year.[iv] The company with the most satellites, SpaceX, has 1,350 Starlink satellites currently in orbit and plans to have as many as 42,000 by 2027.[v] In the coming years, there will also be an increase in private space flights and the creation of space stations.[vi] This increased density in space may result in a collision that also results in damage on earth, or a defunct satellite could fall from the sky and crash land somewhere on earth.[vii]

The increased probability of a satellite collision or accident, causing severe damage in space or on the surface of the Earth, raises an important legal question: “Who, if anyone, would be liable?”[viii] Imagine a hypothetical: a large U.S. satellite malfunctions and falls out of orbit, failing to break up in the atmosphere, and crashes in a foreign country, damaging property. Could a foreign plaintiff who suffers damage sue the U.S. government? This paper argues that a foreign plaintiff could sue the United States for damages caused by a falling satellite under the Outer Space Treaty (OST) and Liability Convention.[ix]

A foreign plaintiff would have a strong claim against the United States for damages caused, for example, by a U.S. satellite crash for three reasons: 1) The United States bears international responsibility for its nationals’ activities in outer space; 2) The Liability Convention conveys an individual claim; and 3) The Liability Convention waives sovereign immunity.

The Foundation: The Outer Space Treaty

The Outer Space Treaty is a byproduct of the Cold War era, when the United States and the Soviet Union were racing for supremacy on earth and in space.[x] Nonetheless, the OST is signed by approximately 111 spacefaring nations, including the United States, Russia, and China.[xi] 

During negotiations, the Soviet Union forwarded concerns about private actors, in particular from the United States, operating in outer space and the liability issues that could result.[xii] The Soviet Union’s position was that all space activities should be under the control of national governments and its draft of the OST sought to prohibit all non-governmental private actors from operating in outer space.[xiii] The United States offered a counterproposal to assuage the Soviets’ fears—the United States would assign all responsibility and liability for private space actors to the state that launched the space object in return for the OST not prohibiting private actors in space.[xiv] Based on that compromise, private actors could operate and participate in space activities free from state control, but states would be liable for any damages that resulted.[xv]

Under Article VI of the OST, states are responsible for all national activities carried out in outer space by governmental and non-governmental entities.[xvi] In specific, it states “bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities.”[xvii] Therefore, under the OST, the United States is responsible for actions of private American companies in outer space and any damage caused by those actions.[xviii] This means any foreign plaintiff harmed by an American company’s satellite could sue the United States instead of the company. This provision imputing international responsibility for private actors to state governments without a strong governmental connection is unique in international law, but Article VI of the OST supports this intent.[xix]

Article VII further notes that each launching state is “internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air or in outer space, including the moon and other celestial bodies.”[xx]

Devilish Details: The Liability Convention 

The Liability Convention elaborates on the obligations set forth in the OST and establishes international rules and procedures regarding damage caused by space objects.[xxi] It expands on Articles VI and VII of the OST by explaining the international liability regime.[xxii] The Liability Convention details how states should resolve incidents of damage caused by space activities.[xxiii] The United States insisted that the Liability Convention provide for a specific method of compensation for U.S. citizens who might be injured by space objects.[xxiv] 

In Article II, the Liability Convention imposes absolute liability for damage caused by a launching state’s space object to the surface of the Earth.[xxv] “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight.”[xxvi]Article XI of the Liability Convention preserves the right of individual nationals of the States party to the Convention to bring a claim for damages in the domestic courts of a launching state.[xxvii] The United States signed and ratified the Liability Convention without any reservations, and therefore all provisions of the treaty apply in full force without qualification.[xxviii] 

The United States bears responsibility for any damage on Earth caused by the crash of a privately owned U.S. satellite, under the OST and Liability Convention.[xxix] A foreign plaintiff would have to convince a court of three things to bring a claim against the United States for damage caused by such a crash: 1) the Liability Convention is self-executing; 2) the Liability Convention provides a claim; and 3) the Liability Convention is itself a waiver of sovereign immunity. Any court asked to decide this issue would face a question of first impression, as the Liability Convention has never been litigated in U.S. courts.[xxx]

The Liability Convention is Self-Executing

The plaintiff would first have to convince a court that the Liability Convention is self-executing. When a treaty is self-executing, it has automatic domestic effect and does not require further action by the legislature.[xxxi] Self-executing treaty provisions have language of present obligation rather than future effect.[xxxii]Article II of the Liability Convention is self-executing because it has language of present obligation rather than future effect.[xxxiii] Specifically, Article II of the Liability Convention provides that “[a] launching State shall be absolutely liable.”[xxxiv]This language carries with it the connotation of immediate effect. The U.S. Congress does not need to act to implement this liability, as ratification of the treaty has already done this. In addition, this “shall be” language is similar to treaty language that the Supreme Court has held to be self-executing. For example, in Trans World Airlines, Inc. v. Franklin Mint Corp., a case involving liability limits for cargo lost by international air carriers, the Supreme Court held that language stating that “the liability of the carrier shall be limited to a sum of 250 francs per kilogram” was self-executing.[xxxv]

In addition, the legislative history to the Commercial Space Launch Competitiveness Act of 2015 [the “Act”] supports the self-executing nature of the Liability Convention.[xxxvi]The Act’s “Background and Need for Legislation” section states, “the bill ensures that federal courts review lawsuits resulting from accidents since the federal government is ultimately the responsible party as a result of the Launch Liability Convention.”[xxxvii]When discussing the section of the Act pertaining to federal jurisdiction, the House Report for the Act states, “[t]he Launch Liability Convention, to which the [United States] is a party, places international liability for space launch and reentry accidents on the federal government.”[xxxviii] These statements do not refer to domestic laws requiring the United States to bear liability, rather they state that the Liability Convention imposes liability without further domestic implementation. [xxxix] 

The Liability Convention Provides a Claim

The plaintiff would then have to argue that the Liability Convention provides a claim. The plaintiff could point first to Article VII of the OST, which states that states are internationally liable for “damage to another State party to the Treaty, or to its natural or juridical persons.”[xl] The Liability Convention reiterates that states are absolutely liable to pay compensation for damage—defined in pertinent part as “damage to property of States or of person, natural or juridical”—to individual persons.[xli] By its own terms, the Liability Convention does not limit itself to damage to states, nor does it only mention states.

Further, Article II does not mention a recipient to whom compensation would be owed.[xlii] A launching state is absolutely liable to pay compensation for damage caused to the surface of the Earth by its space object.[xliii] To whom must this compensation be paid? It would make sense that it is due to the owner of the property damaged, whether that is a state or a person. Article XI further says that the Convention does not prevent a natural person of a state from filing a claim in the courts of a launching state.[xliv]This preserves that right of an individual to file a claim for damages not presented by states under the Claims Commission. This creates a broader class of potential claimants and opens the United States up to more liability. Even if a state chose not to bring a claim against the United States under the Claims Commission, the United States might still face litigation and liability for damages caused to foreign individuals.

The Liability Convention is, in and of itself, a Waiver of Sovereign Immunity

The United States cannot be sued in U.S. courts without its consent.[xlv]Furthermore, only Congress can grant that consent.[xlvi] This is known as a waiver of sovereign immunity. To succeed in a claim against the United States, a foreign plaintiff would have to establish two things. First, they would have to show that a treaty can waive sovereign immunity. Second, they would have to show that the Liability Convention provides such a waiver.

The plaintiff could argue that a treaty, and specifically a self-executing treaty, can waive sovereign immunity because self-executing treaties are equivalent to statutes under the Supremacy Clause and statutes can waive sovereign immunity. The Constitution of the United States also places treaties on the same level as statutes as the supreme law of the land under the Supremacy Clause.[xlvii]The Supreme Court has also held that self-executing treaties are equivalent to statutes in the courts of the United States.[xlviii] Courts will therefore treat a self-executing treaty as equivalent to a statute and inferior only to the Constitution.[xlix] This means that a self-executing treaties could act as a waiver of sovereign immunity. The plaintiff could therefore argue that the Liability Convention is a waiver of sovereign immunity because it is self-executing, as already discussed.

There is no specific requirement, or “ritualistic formula” required for Congress to waive sovereign immunity.[l] In fact, courts have found waivers of sovereign immunity in statutes that have language like that in Article II of the Liability Convention.[li] To determine whether this language could serve as a waiver of sovereign immunity, courts would likely look to statutes that waive sovereign immunity, like the Federal Tort Claims Act (FTCA).[lii]

The language in the FTCA that waives sovereign immunity is as follows: “The United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances.”[liii] This language is nearly identical to that in the Liability Convention.[liv] The FTCA does not mention sovereign immunity in specific, but imposes liability upon the United States for specified claims.[lv] The Liability Convention has language similar to that in the FTCA.[lvi]The FTCA is a waiver of sovereign immunity and a court could find that the Liability Convention is also a waiver of sovereign immunity because of the similarities in the language between the two.[lvii]

Similarly, Title VII of the Civil Rights Act of 1964 contains “shall be liable” language similar to that in the FTCA and the Liability Convention.[lviii]The Supreme Court held that § 706(k) of Title VII of the Civil Rights Act, which states that “the United States shall be liable for costs the same as a private person,” was a valid waiver of sovereign immunity.[lix]This proves Congress can use language that imposes liability on the United States to waive sovereign immunity. Therefore, the plaintiff has a strong argument that the Liability Convention waives sovereign immunity and opens the United States up to potential liability.

Way ahead

The Liability Convention was drafted at a time when space travel was new, and manmade space objects were few. The potential liability for states was relatively low as there were fewer private actors in space. That situation has changed with the rise of private space travel, space commerce, and space tourism. The U.S. government must seek to encourage private space activities while protecting itself from the potentially massive amount of liability it faces under the Liability Convention. 

Domestically, the U.S. government can protect itself from liability by implementing uniform regulations for private American companies acting in outer space. The OST already imposes an obligation on states to monitor their nationals’ activities in space, and by regulating private space activities, the government can ensure that private actors act in such a way as to minimize potential damages on the Earth. The government could also implement insurance requirements for private space actors. Requiring private actors to have insurance protects the U.S. government from enormous damage and litigation costs because the United States is ultimately liable for any damages caused to the Earth by private U.S. space actors under the Liability Convention.

Internationally, the United States could seek to renegotiate the Liability Convention and OST to provide for only diplomatic remedies in the event of damage caused by space activities. This would take years and would require cooperation with increasingly adversarial space powers such as Russia and China. While the private space sectors in these countries are less developed than that in the United States, they are expanding rapidly.[lx] The United States could protect itself from liability and seek to ensure compensation in the event a Russian or Chinese space object causes damage, by negotiating new agreements with these countries. While this might be difficult, it would also be beneficial as it would require adversary space nations to negotiate with one another and would show U.S. leadership in space at a time of heightened tensions between the major space powers.

In the meantime, the U.S. Space Force is better situated to work with the militaries of other space powers to prevent collisions that cause damage in outer space and potentially on the Earth. Further developing the capacity to not only track satellites and space objects but to direct space traffic management would benefit national security and civilian use of space by preventing accidents and preserving the ability of states to use space for both commerce and exploration.[lxi]  The U.S. government could also improve coordination with other countries’ civil space institutions and international organizations such as United Nations Office for Outer Space Affairs to establish an international definition and framework for civil and commercial satellite tracking and warning, and traffic management.[lxii]

Brandon Padgett is a third-year law student at George Washington University focusing on the convergence of international law and space policy. He is also the senior notes editor on the International Law in Domestic Courts Journal, a student attorney on the Civil and Human Rights Law Clinic, and a writing fellow. This paper represents solely the author’s views and does not necessarily represent the official policy or position of any Department or Agency of the U.S. Government. If you have a different perspective, we’d like to hear from you.  

Notes    

[i] e.g., Tim Jackson, Billionaire space race: the ultimate symbol of capitalism’s flawed obsession with growth, The Conversation (July 20, 2021), http://theconversation.com/billionaire-space-race-the-ultimate-symbol-of-capitalisms-flawed-obsession-with-growth-164511 (last visited Oct. 29, 2021); Joseph Cabosky, Billionaire space race has bipartisan American support—but not from Gen Z, Astronomy (Aug. 6, 2021), https://astronomy.com/news/2021/08/billionaire-space-race-has-bipartisan-american-support--but-not-from-gen-z (last visited Oct. 29, 2021); Luke Harding, The space race is back on – but who will win?, The Guardian (July 16, 2021), http://www.theguardian.com/science/2021/jul/16/the-space-race-is-back-on-but-who-will-win (last visited Oct. 29, 2021); Michael Sheetz, In race to provide internet from space, companies ask FCC for about 38,000 new broadband satellites, CNBC(Nov. 5, 2021), https://www.cnbc.com/2021/11/05/space-companies-ask-fcc-to-approve-38000-broadband-satellites.html (last visited Nov. 15, 2021).

[ii] Joseph A. Bosco, Liability of the United States Government for Outer Space Activities Which Result in Injuries, Damages or Death According to United States National Law, 51 J. Air L. And Com. 809, 811 (1986).

[iii] Wood, supra note 2. The remaining 60% of Earth-orbiting satellites are defunct, so essentially space junk orbiting Earth without any beneficial use.

[iv] id.

[v] id.

[vi] Therese Wood, Visualizing All of Earth’s Satellites: Who Owns Our Orbit?, Visual Capitalist(Oct. 20, 2020), https://www.visualcapitalist.com/visualizing-all-of-earths-satellites/ (last visited Jan. 22, 2022).

[vii] Marcia Dunn, SpaceX satellites falling out of orbit after solar storm, ABC News (Feb. 10, 2022), https://abcnews.go.com/Technology/wireStory/spacex-satellites-falling-orbit-solar-storm-82772450 (last visited June 27, 2022).

[viii] The problem of space debris is closely tied to that of liability for damages caused. If a satellite collides with another satellite and splits into dozens of pieces, each of those pieces could then cause damage to other satellites. Large pieces could also enter Earth’s atmosphere causing damage to individuals on the ground. This raises issues such as causation and identification of ownership that will be important to solve as space is filled with satellites. For an in-depth analysis of the space debris problem and discussion of some of the liability issues associated with it see, Paul B. Larsen, Solving the Space Debris Crisis, 83 J. Air L. And Com. 46 (2018).

[ix] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967) [hereinafter Outer Space Treaty]; Convention on International Liability for Damage Caused by Space Objects, opened for signature Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 [hereinafter Liability Convention].

[x] The OST is often referred to as the “constitution” of outer space. See Brian Abrams, First Contact: Establishing Jurisdiction over Activities in Outer Space Note, 42 Ga. J. Int’l & Comp. L. 802 (2013).

[xi] Status of International Agreements Relating to Activities in Outer Space, United Nations Office For Outer Space Affairs, http://www.unoosa.org/oosa/en/SpaceLaw/treatystatus/index.html (last updated May 31, 2021).

[xii] Laura Montgomery, US Regulators May Not Prevent Private Space Activity on the Basis of Article VI of the Outer Space Treaty, Mercatus Working Paper 3, 14–15, 21 (2018), https://www.mercatus.org/system/files/montgomery-outer-space-treaty-mercatus-working-paper-v1.pdf (accessed 28 October 2021).

[xiii] Christian Joseph Robison, Changing Responsibility for a Changing Environment: Evaluating the Traditional Interpretation of Article VI of the Outer Space Treaty in Light of Private Industry, 5 U. Bologna L. Rev. 1, 3 (2020); Letter from Secure World Foundation to the U.S. Senate Committee on Commerce, Science, and Transportation Subcommittee on Space, Science, and Competitiveness (May 22, 2017) (in the record of the hearing on “Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space”) https://www.govinfo.gov/content/pkg/CHRG-115shrg29998/pdf/CHRG-115shrg29998.pdf [hereinafter Secure World Foundation Letter].

[xiv] Secure World Foundation Letter, supra note 18.

[xv] id. at 15.

[xvi] Outer Space Treaty, supra note 12, art. VI (emphasis added).

[xvii] Id.

[xviii] Outer Space Treaty, supra note 12, art. VI; Robison, supra note 18, at 3.

[xix] Reopening the American Frontier: Exploring how the Outer Space Treaty will Impact American Commerce and Settlement in Space: Hearing Before the Subcomm. on Space, Sci., and Competitiveness of the S. Comm. on Com., Sci., and Transp., 115th Cong. 36 (2017) [hereinafter Senate Hearing on the OST] (prepared statement of Matthew P. Schaefer, Veronica A. Haggart & Charles R. Work Professor of International Trade Law; co-director—Space, Cyber and Telecommunications Law Program, University of Nebraska College of Law; and co-chair, American branch of International Law Assoc. Space Law Committee) (“The first sentence providing that States Parties bear international responsibility for their non-governmental (commercial) entities’ activities is quite unique in international law. Normally, a government is not responsible for purely private conduct in the absence of a strong link such as the government exercising direction or effective control over the private activity. This provision was part of the trade-off in the negotiation of the OST in which the original Soviet proposal was to ban private actors from space altogether. The OST clearly allows for and anticipates commercial space activity but makes State Parties internationally responsible for such activity.”)

[xx] Outer Space Treaty, supranote 12, art VII.

[xxi] Liability Convention, supra note 12.

[xxii] id.

[xxiii] id. Articles IV and V impose joint and several liability, like under American tort law, on States launching space objects jointly; Article VI provides an exception to the absolute liability imposed in Article II that is not relevant to the current analysis; Articles VIII-X set out the methods by which States might try to resolve claims for damages by diplomatic channels; Articles XIV-XX provide for a Claims Commission to settle claims between States and detail the procedures to be followed.

[xxiv] id. at 127.

[xxv] Liability Convention, supra note 12, art. II.

[xxvi] Id. In contrast, Article III only imposes fault liability for damage caused by a launching State’s space object in outer space. There is no internationally agreed upon definition of fault liability under the Liability Convention and any litigation brought under the Liability Convention for damage in outer space would need to define this standard more precisely. For a discussion of this, see Anel Ferreira-Snyman, The Environmental Responsibility of States for Space Debris and the Implications for Developing Countries in Africa, 46 Comp. & Int’l L. J. S. Afr. 19 (2013).

Liability Convention, supra note 12, art. II.

[xxvii] Liability Convention, supra note 12, art. XI.

[xxviii] Convention on International Liability for Damage Caused by Space Objects, done at London, Moscow and Washington March 29, 1972, U.S. Dep’t of State, https://www.state.gov/outer-space-liability/ (last visited Oct 29, 2021) (status list of the Liability Convention available at https://www.state.gov/wp-content/uploads/2019/03/238-Space-Object-Damage.pdf).

[xxix] id. at art. VI.

[xxx] While there have been instances of space debris crashing to earth, no formal claims have been made in U.S. courts or under the Liability Convention. For a discussion of one accident between two satellites, Iridium 33 and Cosmos 2251, see Henry R. Hertzfeld & Ben Basely-Walker, Legal Note on Space Accidents, 59 ZLW 230 (2010). For a discussion on hypothetical claims from the deorbiting of the Russian satellite, Mir, that landed harmlessly in the Pacific Ocean, seeJoel Stroud, Space Law Provides Insights on How the Existing Liability Framework Responds to Damage Caused by Artificial Outer Space Objects, 37 Real Prop. Prob. & Tr. J. 363 (2002). Finally, the only incident in which a State’s space object crashed to earth resulting in diplomatic discussions as called for in the Liability Convention was the “Cosmos 954” crash where the Soviet Union’s nuclear satellite crashed down in Canada. Canada spent more than $6 million on the cleanup and demanded that the Soviet Union pay for it, as they were liable under the Liability Convention. No official Claims Commission was established however, and Canada and the Soviet Union settled their dispute. For a discussion of this incident, see Rachel Rogers, The Sea of the Universe: How Maritime Law’s Limitation on Liability Gets it Right, and Why Space Law Should Follow by Example, 26 Ind. J. Glob. Legal Stud. 741 (2019). 

[xxxi] Foster v. Neilson, 27 U.S. 253, 254 (1829), overruled on other grounds by U.S. v. Percheman, 32 U.S. 51 (1833). (“Our constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision”).

[xxxii] id. at 508–509; See also, Montgomery, supra note 17, at 20–21.

[xxxiii] Liability Convention, supra note 12, art. II; Medellin, 552 U.S. at 508–509.

[xxxiv] Liability Convention, supranote 12, art. II (emphasis added).

[xxxv] Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 247, 252 (1984) (“Second, the Convention is a self-executing treaty. Though the Convention permits individual signatories to convert liability limits into national currencies by legislation or otherwise, no domestic legislation is required to give the Convention the force of law in the United States.”) The Convention referred to by the Supreme Court is the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934).

[xxxvi] U.S. Commercial Space Launch Competitiveness Act of 2015, Pub. L. No. 114-90, §§ 101-403, 129 Stat. 704-722 (2015) [hereinafter CSLCA].

[xxxvii] H. R. Rep. No. 114-119, at 9 (2015).

[xxxviii] Id. at 15.

[xxxix] Medellin, 552 U.S. at 505 (2008).

[xl] Outer Space Treaty, supra note 12, art. VII (emphasis added).

[xli] Liability Convention, supranote 12, art. I.

[xlii] id. at art. II.

[xliii] id.

[xliv] id. at art. XI.

[xlv] U.S. v. Mitchell, 463 U.S. 206, 212 (1983).

[xlvi] Joseph A. Bosco, The United States Government as Defendant - One Example of the Need for a Uniform Liability Regime to Govern Outer Space and Space-Related Activities, 15 Pepp. L. Rev. 581, 591 (1988); Dalehite, 346 U.S. at 30 (“no action lies against the United States unless the legislature has authorized it”).

[xlvii] U.S. Const. art. VI, cl. 2. (“[A]ll treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding”); see also Stephen P. Mulligan, Cong. Rsch. Serv., RL32528, International Law and Agreements: Their Effect upon U.S. Law (2018) (“Self-executing treaties have a status equal to federal statute, superior to U.S. state law, and inferior to the Constitution”).

[xlviii] Foster, 27 U.S. at 254 (“Our constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision”).

[xlix] Mulligan, supra note 73.

[l] Fran. Tax Bd. of California, 467 U.S. at 521.

[li] Liability Convention, supra note 12, art. II.

[lii] Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (1998); See also Evans v. U.S., 876 F.3d 375, 380 (1st Cir. 2017) (“The FTCA provides for a limited waiver of this sovereign immunity and authorizes suits against the United States for certain torts”).

[liii] 28 U.S.C. § 2674 (emphasis added). The FTCA also includes a jurisdictional component codified at 28 U.S.C. § 1346(b), giving District Courts exclusive jurisdiction over claims for money damages brought against the United States on account of the torts of its employees. This section focuses on § 2674, however, as that is the provision that delimits the United States liability. See Simmons v. Himmelreich, 578 U.S. 621, 626 (2016).

[liv] Liability Convention, supra note 12, art. II.

[lv] 28 U.S.C. § 2674.

[lvi] id. at art. II; 28 U.S.C. § 2674.

[lvii] Evans, 876 F.3d at 380.

[lviii] Civil Rights Act of 1964, 42 U.S.C. § 2000e–5(k).

[lix] Lib. of Cong. v. Shaw, 478 U.S. 310, 319 (1986) (emphasis added) (holding that the language quoted above waived the government’s immunity from attorney’s fees); 42 U.S.C. § 2000e–5(k).

[lx] e.g., Jeremy Grunert, Sanctions and Satellites: The Space Industry After the Russo-Ukrainian War, War on the Rocks (Jun. 10, 2022), https://warontherocks.com/2022/06/sanctions-and-satellites-the-space-industry-after-the-russo-ukrainian-war/ (last visited Jul. 18, 2022); Neel V. Patel, China’s surging private space industry is out to challenge the US, MIT Tech. Rev. (Jan. 21, 2021), https://www.technologyreview.com/2021/01/21/1016513/china-private-commercial-space-industry-dominance/ (last visited Jul. 18, 2022).

[lxi] Theresa Hitchens, SPACECOM, Commerce wrapping up framework accord on space surveillance, Breaking Defense (June 27, 2022), available at https://breakingdefense.com/2022/06/spacecom-commerce-wrapping-up-framework-accord-on-space-surveillance/. 

[lxii] Mir Sadat and Julia Siegel, Space traffic management: Time for action, The atlantic council (August 2, 2022), available at https://www.atlanticcouncil.org/in-depth-research-reports/issue-brief/space-traffic-management-time-for-action/.