Article Summary

• The concept of territoriality is insufficient to govern the future of space labor.
• In light of the rapidly developing landscape of labor in space, the Defense Base Act is likely outdated.
• The Defense Base Act should be amended to include protection for workers performing labor in space.

defense base act: codified for a world with clearer borders

The Defense Base Act (DBA) has provided workers’ compensation protections to U.S. civilian employees working overseas on military or government contracts for over 80 years. However, the Defense Base Act was codified for a world with clearer borders than we see today.

Private companies are now launching satellites, exploring asteroid mining, and even planning for lunar habitats. Labor is being performed in places that are difficult to conceptualize jurisdictionally. Because Outer space is governed by treaties—as opposed to sovereignty—legal systems that rely on geography to determine rights and protections are becoming increasingly challenging to navigate.

is territoriality fit to govern the future of space labor?

Territoriality is the legal principle that a state’s laws apply within its physical borders. This concept is foundational in international law. Practically speaking, territoriality means the DBA is only triggered in specific locations. Although exceptions exist, (after all, there are always exceptions in the law) the assumption is that geography governs legal reach.

However, with the rapid onset of space development, this assumption is now being called into question. The law is now being considered in spaces where some territorial borders do not exist. So, is territoriality fit to govern the future of space labor?

The Defense Base Act, passed in 1941, extends the protections of the Longshore and Harbor Workers’ Compensation Act to civilian employees working:

• On U.S. military bases outside the country;
• On public works contracts for the U.S. government abroad; or
• In connection with military operations outside the U.S.

In contrast, under the Outer Space Treaty (1967):

• No country can claim sovereignty over the Moon, Mars, or any other celestial body;
• Jurisdiction is based on national registration of space objects and nationality of personnel, not geography; and
• The legal status of space activities is inherently non-territorial.

Importantly, Outer space is not a territory. Rather, it is an international territory that is free for all nations to explore and use, but it cannot be claimed by any single country under international space law.

To see how this all plays out in today’s age, imagine a U.S. contractor operating in partnership with foreign agencies or a private firm for purposes of conducting a mission to the Moon. During the mission, a laborer sustains a work-related injury. In this scenario, would DBA law apply? After all, there would be no “foreign base,” and no host country.

Based on the current law, the answer is unclear; the Moon is not U.S. territory; the Moon is not considered foreign soil; and there is no Status of Forces Agreement (SOFA). However, much like DBA-covered workers in war zones, the worker in space would be doing U.S.-contracted labor in a hazardous environment.

Is the Defense Base Act outdated?

If space labor doesn’t fit into Earth-based legal categories, what’s the alternative? Perhaps Congress could enact new legislation and/or amend the DBA to explicitly include outer space as a covered zone? Or perhaps, similarly to maritime law, the worker’s citizenship or employer’s country could determine labor protection? Or even, a type of functional jurisdiction could be applied, wherein the law applied is based on the type of work being done (for example, if funded U.S., it will be directed by U.S.).

One thing for sure is clear, every day workers are continuing to develop a new era of exploration and commerce in space. As a result, we must adapt to ensure that proper labor protection is not merely confined to the limits of this planet.