It’s My Potty, and I’ll Cry If I Want To

On the lighter side of international news this week, comes word that the international space station toilet has broken, leading to obvious difficulties for the station’s inhabitants (not to mention plenty of toilet humor back here on earth). Now, toilets in space raise all sorts of logistical and engineering issues, nicely described by Jacob Leibenluft in today’s Slate. Of course, here at Opinio Juris, it’s the international legal questions that pique our interest. So, is there any international state responsibility for this broken toilet, and what, if anything, can the disgruntled astronauts do about it?

The Space Station operates pursuant to the 1998 Agreement Concerning Cooperation on the Civil International Space Station among Canada, the European Space Agency Member States, Russia, the United States, and Japan (although the Japanese Space agency’s participation is subject to an MOU with NASA, which I assume is because of domestic law limitations on the agency’s power to enter into international agreements). Article 10 of that Agreement provides

The Partners, acting through their Cooperating Agencies, shall have responsibilities in the operation of the elements they respectively provide, in accordance with Article 7 and other relevant provisions of this Agreement, and in accordance with the MOUs and implementing arrangements. The Partners, acting through their Cooperating Agencies, shall develop and implement procedures for operating the Space Station in a manner that is safe, efficient, and effective for Space Station users and operators, in accordance with the MOUs and implementing arrangements. Further, each Partner, acting through its Cooperating Agency, shall be responsible for sustaining the functional performance of the elements it provides.

Looking at the last sentence, it suggests that whoever provided the toilet has responsibility for it. (I don’t have access to the referenced MOUs or Implementing Agreements, but they all appear derivative of the Space Station Agreement itself under Article 4, so I’m assuming Article 10 remains the operating rule.) According to the New York Times, it’s a Russian-built model, so that would suggest Russia bears responsibility for the broken toilet. Having small children at home who frequently misappreciate how much toilet paper fits into the toilet, however, I’m well-aware that Russia may argue that somebody else’s national broke the toilet and that state should be responsible for fixing it.

Article 16, however, was designed to prevent exactly these sorts of pissing contests, with each party agreeing to a cross-waiver of liability for all “(1) bodily injury to, or other impairment of health of, or death of, any person; (2) damage to, loss of, or loss of use of any property . . . or (4) other direct, indirect, or consequential damage” relating to Space Station activities. That text suggests that it will be hard to hold any participating state or agency liable for damages as a result of the broken toilet. Article 16, however, goes on to provide that the cross-waiver does not apply to “claims made by a natural person, his/her estate, survivors . . . for bodily injury, or other impairment of health or death” nor to “claims for damage caused by willful misconduct.” So, for the lawyers, the real questions are how was the toilet broken? And, just what have the astronauts had to suffer through as a result?

The Agreement’s Annex also suggests that the United States agreed to provide the “Space Station infrastructure elements, including a habitation module.” Maybe someone with more knowledge of the Agreement or space law can enlighten me, but how is it that the United States could provide a “habitation module” without including a toilet in it? If it had, that would have at least provided a second toilet that would have avoided the current crisis. In any event, it sounds like the upcoming Space Shuttle visit to the Station will provide the necessary repair parts. Hopefully, that will get the facilities working again without having to flush too much more money down the toilet. After that, it should be “all cisterns go.”

Photo Credit: Slate