The Customary Status of the Outer Space Treaty is not an All or Nothing Proposition, by Ian Perry

The following is a guest post by Ian Perry, an attorney who received a J.D. and an LL.M. in air and space law from the University of Mississippi School of Law and is pursuing a J.S.D. in space law with the University of Nebraska College of Law.  LM

*************

When different nations enter into agreement on a topic they may do so by a treaty in which they explicitly spell out what they have agreed to. Customary international law on the other hand, involves an implicit agreement between states, is traditionally understood to gradually form over time, and is not always codified in a treaty. Customary international law is relevant to the Outer Space Treaty because of claims that the treaty has become customary international law, which could mean that it might apply to states that have never ratified it or have withdrawn from it.[i] As the following shows, existing state practice is insufficient to make the entire Outer Space Treaty customary international law.

What is meant by customary international law? Customary international law is a kind of international common law; it is a body of rules and principles said to arise informally from the general and consistent practice of nations. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987). Evidence of customary international law includes judgments and opinions of international tribunals, such as the International Court of Justice (whose judges are approved by the U.N. General Assembly and Security Council); judgments and opinions of other nations’ judicial tribunals; and scholarly writings. Id. § 103.[ii]

Customary international law may apply to a local region, to all countries, or to all countries that have not persistently objected. The amount of state practice required for a custom to form is not consistently defined in the relevant literature. Customary international law can exist in the absence of a treaty or alongside a treaty, and there are many scholars who find at least parts of the Outer Space Treaty customary international law.[iii] The fact that part of a treaty overlaps with customary international law does not necessarily mean the whole treaty is custom. Customary international law is generally described as arising out of state practice done out of a sense of legal obligation—a rule in one part of a treaty might meet this test in some situations without all parts and all applications of the treaty doing so. For example, in North Sea Continental Shelf, the International Court of Justice distinguished different types of precedent and indicated that state practice in the form of maritime delimitations between geographically opposite states provided insufficient precedent to establish a customary rule regarding lateral delimitations between adjacent states.[iv] Practice in earth orbit is not necessarily precedent for celestial bodies. One need not say that the whole Outer Space Treaty has the same status under international law. A particular provision of the Outer Space Treaty might embody customary international law with regard to activities in an area where there is more state practice (such as with regard to free movement in earth orbit), and not embody it with regard to all activities in a physically different area where there is less state practice. By way of illustration, ask the question: Do states know enough about operations on the surface of Mars to intend by compliance with the Outer Space Treaty now to give up a future right to withdraw from some of its provisions if they are found impractical there? The ICJ has found actions in coastal waters up to about 60 miles from shore to be less than sufficient to establish a norm for waters 120-200 miles from the coast.[v] Manned stations on other planets appear to be at least as distinct from earth-orbiting satellites as these different areas of the ocean are from each other. Accordingly, current state practice is generally insufficient to make even relatively long-standing implementations of the Outer Space Treaty establish customary law for all celestial bodies. Continue reading

Facebooktwittergoogle_pluspinterestlinkedin

Lessons in the Tricky Navigation of Drafting

Every now and then it helps when you are working on something to see what happened with other things like it. As Congress, the commercial space industry, and lobbyists contemplate legislation for non-traditional private actors in outer space, it may be wise to revisit the perils of imprecision.

Look what happened to the “navigable waters of the United States” in the hands of the U.S. Army Corps of Engineers. They grew some. The Supreme Court did a fine job of describing a regulator’s first shy, then creeping, then galloping jurisdictional expansion over the course of five Presidential administrations in Rapanos v. United States by expanding what “navigable waters” mean.

The Clean Water Act requires a permit to discharge a pollutant into navigable water. Justice Scalia, with his usual verve, described the predicament that Mr. Rapanos faced starting in April 1989, when Mr. Rapanos

backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. Regulators had informed Mr. Rapanos that his saturated fields were “waters of the United States,” 33 U. S. C. § 1362(7), that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.

***

In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as “economics,” “aesthetics,” “recreation,” and “in general, the needs and welfare of the people,” 33 CFR § 320.4(a) (2004). The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes.

***

The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act—without any change in the governing statute—during the past five Presidential administrations.

***

One of the statute’s principal provisions is 33 U. S. C. § 1311(a), which provides that “the discharge of any pollutant by any person shall be unlawful.” “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source,” § 1362(12), and “pollutant” is defined broadly to include not only traditional contaminants but also solids such as “dredged spoil, . . . rock, sand, [and] cellar dirt,” § 1362(6). And, most relevant here, the CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.” § 1362(7).

(Most citations and page numbers omitted).

At first the Corps was becomingly modest in its approach, and interpreted “navigable waters” in the ordinary way, as “interstate waters that are ‘navigable in fact’ or readily susceptible of being rendered so.”  We might, perhaps, think back to steam boat captains in days of yore asking each other whether a stretch of the Mississippi was navigable or whether they’d run aground on sand bars.

Instead, as Justice Scalia informed us:

After passage of the CWA, the Corps initially adopted this traditional judicial definition for the Act’s term “navigable waters.” After a District Court enjoined these regulations as too narrow, the Corps adopted a far broader definition. The Corps’ new regulations deliberately sought to extend the definition of “the waters of the United States” to the outer limits of Congress’s commerce power.

The Corps’ current regulations interpret “the waters of the United States” to include, in addition to traditional interstate navigable waters, 33 CFR § 328.3(a)(1) (2004), “[a]ll interstate waters including interstate wetlands,” § 328.3(a)(2); “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,” § 328.3(a)(3); “[t]ributaries of [such] waters,” § 328.3(a)(5); and “[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands),” § 328.3(a)(7). The regulation defines “adjacent” wetlands as those “bordering, contiguous [to], or neighboring” waters of the United States. § 328.3(c). It specifically provides that “[w]etlands separated from other waters of the United States by manmade dikes or barriers, natural river berms, beach dunes and the like are `adjacent wetlands.'” Ibid.

Lesson One: don’t rely on the name of the term if that’s what you really mean.  That broad definition of navigable waters as “waters of the United States” allowed the Corps endless leeway in interpreting what was meant by “navigable waters.”  The word “navigable” in the name didn’t limit the waters to those that could actually be navigated.  My own suspicion is that the drafters didn’t mean to include water in prairie potholes.  If I’m right, the better place for “navigable” would have been in the definition than in the name.

Lesson Two: don’t forget that there are other actors out there who will influence the interpretation of the language you have crafted.  It was the courts who pushed the Corps toward a more expansive approach.  The Corps went with it.  How did the courts become involved?  I would imagine an environmental group sued the Corps and won.  That broad definition gave the Corps all the room it needed to extend its reach.

Lesson Three: don’t rely on the present occupants of an agency to be there forever.  Write as if the future depended on it.  “Navigable waters” grew to include water in prairie potholes, even though no one’s going to get a rowboat in a pothole, much less a steamboat.  These changes took place over decades, but that broad definition provided the tools for the expansion from the outset.   Although the Supreme Court finally set some limits on the Corps’ reach, it took Mr. Rapanos a long time and a lot of money to be rescued.

Note for the non-lawyers:  The laws Congress writes go in the United States Code (USC).  When regulatory agencies such as the Corps or the Federal Aviation Administration issue their requirements in accordance with the law Congress wants them to administer, the agencies locate their regulations in the Code of Federal Regulations.  If there is a conflict between the United States Code and the Code of Federal Regulations, the United States Code wins because the Constitution vests the power to make laws in the Congress.  The regulatory agencies are in the Executive Branch, and are merely carrying out the directions Congress supplied through the United States Code.

Facebooktwittergoogle_pluspinterestlinkedin

This New Ocean II

Although not all space lawyers are mesmerized by the Deep Seabed Hard Mineral Resources Act (the Deep Seabed Mineral Act), I confess that I am. Accordingly, when the Deep Seabed Mineral Act offers a model of a regulatory scheme for resources extracted from the global commons, taking a peek at new happenings under that law can prove irresistible.

Regular readers may recall that back in April of this year the National Oceanic and Atmospheric Administration asked for comments on a request for a license extension from Lockheed Martin Corporation, one of NOAA’s licensees under the Deep Seabed Mineral Act. NOAA approved the requested five-year extension of Lockheed’s exploration license. The extension maintains Lockheed’s proprietary interests but does not authorize Lockheed to conduct “at-sea exploration activities” under the license. Instead, NOAA must perform additional authorization and further environmental review before Lockheed may conduct exploration at sea.

I wondered in April whether competitors or environmental groups might file comments. Now we know. NOAA had requested comments specifically from the Department of State and the Western Pacific Fisheries Management Council. State had no objections or comments. The Council found that none of the fisheries under its jurisdiction would be affected by the onshore activities Lockheed described in its request and did not object to the extension. Depending on the location of the fisheries and the mining targets, the Council could theoretically object later to actual exploration.

NOAA received five other comments. A review of the docket shows they appear to come from individuals. The commenters’ objections fall into three categories: environmental, international, and claims that Lockheed failed to substantially comply with its license and application plan. One commenter objected to Lockheed’s rationales for requesting an extension, namely, that economic conditions are not ripe and that the U.S. must accede to the 1982 Law of the Sea Treaty. NOAA’s responses are available here.

What’s interesting about all the objections to the extension is that it shows that the regulatory agency, NOAA in this instance, could have found that the licensee had not substantially complied and thus denied the request for extension. This means that one’s business plans and prospects may lie outside a company’s control. To the extent that a company has not managed its relations properly with the regulator or filed only a cursory statement of its progress it may place itself at regulatory risk. Additionally, the participation of the public provides another opportunity for the throwing of monkey wrenches into the works. While such a regulatory regime is affordable for companies with the infrastructure to cater to its care and feeding, smaller companies may not have the same resources.

The commenter linked to above provides a good example of the type of comments a competitor might have filed. If someone else wanted a license to mine where the first licensee had yet to act, the new competitor might make arguments about the equities of letting a claim be hoarded rather than worked, and the regulator might be persuaded despite the investments the first company had made.

For those interested in a similar regulatory regime for space, it might be advisable to proceed with caution.

 

Facebooktwittergoogle_pluspinterestlinkedin

Journal of Astrosociology

The Journal of Astrosociolgy is seeking manuscripts for publication in the next issue.  The Journal covers a range of social science issues addressing the relationship between humanity and outer space.  Showcasing this range, the most recent issue contains articles on  the economic feasibility of asteroid mining, boredom in space, and the space age narrative as reflected in southern music.  Check it out, and consider submitting a paper.

Facebooktwittergoogle_pluspinterestlinkedin

So You Want to Be a Space Lawyer

I receive inquiries from people, both law students and recent graduates,  interested in practicing space law. I have a pretty standard spiel, and since the semester is starting for law students, I thought now might be a good time to share. Hopefully, you haven’t selected quite all your classes yet.

Take a course in administrative law. It’s the law that governs how regulatory agencies issue regulations for different industries, how they license everything from nuclear reactors to rocket launches, and how they bring enforcement actions against malefactors such as pilots, polluters, and pesticide purveyors who do the things they do but do them wrong.

Agencies operate under legal constraints. A regulator may not just wake up one morning and start issuing rules. His agency must first propose the rules and allow time for public comment. The regulations must be clear enough that a person of ordinary intelligence can tell what is forbidden and what is required. Likewise, an agency may not simply demand money from someone who may have violated one of its regulations. It must provide the alleged violator an opportunity for a hearing. Legal procedural requirements apply to those hearings, and there are lots of cases which serve as precedent. Whether you work for a government agency or the private sector, an understanding of administrative law and the obligations and constraints it imposes on regulators is vital. It is also very interesting, because it is the law of governance and how to do it properly–so long as we set aside the sticky issue of how the regulatory agencies seem to have merged all three constitutional functions: they write laws, they carry them out, and they have their own administrative law judges.

Another good class might be one on federal procurement regulation. The U.S. government is a big customer to aerospace companies. Procurement regulations govern contracts between the U.S. government and its contractors. Also, take corporate and securities law. Start up companies will hire you young, and they need someone who can do everything.   I took public international law and the law of the sea, the former because of the Outer Space Treaties and the latter because it seemed like it might offer parallels to space. The international law turned out to be more helpful.

What if you are out of school? Get involved in one of the many space advocacy groups or a trade advocacy group such as the Satellite Industry Association or the Space Transportation Association.  There are many more.  Don’t just go to the meetings. Get involved in the working groups. Doing this will help you get to know others involved in the area, demonstrate your interest and capabilities, and let people know that you show up when you say you’re going to (that counts for a lot—really).  Also, the Manfred Lachs Space Law Moot Court Competition always needs volunteers to act as coaches and judges.

If you cannot get a job in space law itself, working in any regulatory field (think EPA, FERC, etc) helps ground you in the regulatory and legal principles that apply to federal agency regulation of space law by the FAA, the FCC, and NOAA. I started out doing telecommunications and black lung work. Both were helpful in my transition to space law.

Finally, if you are taking Constitutional law, get a hold of Robert Bork’s The Tempting of America.  It helps tremendously in realizing why that area of the law is so blindingly weird and hard to understand.  I was at sea in that class half the time, wondering where the heck the Constitution said what the Justices said it said. Bork explains all, in an annoyingly even handed way, explaining how in the country’s first century the court found economic rights that weren’t there and now the court looks for and finds other rights that may not be there.  If you read even just the first third of the book, maybe halfway through the semester so you will recognize the cases he discusses, you will be remarkably enlightened and have a much better time of it in ConLaw.  I read it decades too late, but it still helped retroactively, maybe just because it made me feel better.

UPDATE later in the day:  I forgot to mention, there are three LLM programs in space law that I know of. Canada’s McGill offers an LLM in air and space law. The University of Mississippi’s school of law also offers an LLM in air and space law.  The University of Nebraska offers an LLM degree in space, cyber, and telecommunications law, and its LLM courses are available to JD candidates. Also, there are a number of other law schools that offer classes in space law.

 

Facebooktwittergoogle_pluspinterestlinkedin

Regulatory Agenda for Federal Acquisition Regulations

The Department of Defense, the General Services Administration and NASA jointly issue and maintain the federal acquisition regulations (popularly referred to by the cognoscenti as the FARs).  On August 24, 2017, they released their semiannual regulatory agenda.  The agenda lists proposed and final rules and long-term and completed actions.  The notice states:

This agenda provides summary descriptions of regulations being developed by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council in compliance with Executive Order 12866 ‘‘Regulatory Planning and Review.’’ This agenda is being published to allow interested persons an opportunity to participate in the rulemaking process. The Regulatory Secretariat Division has attempted to list all regulations pending at the time of publication, except for minor and routine or repetitive actions; however, unanticipated requirements may result in the issuance of regulations that are not included in this agenda. There is no legal significance to the omission of an  item from this listing.

Facebooktwittergoogle_pluspinterestlinkedin

Kings of the High Frontier vs NASA

Could NASA use the Federal Aviation Administration’s policy review to stop a launch?

One of the problems I have with reading near-space, near-future science fiction is all that poetic license.  A poet’s license is different than a launch license.  To get a launch license you have to show the FAA that you satisfy its safety, environmental, policy, payload, and financial responsibility requirements.  To get a poet’s license, as best as I can tell, you just grab it and take it.  John Varley may have broken my heart by failing to dis properly the FAA’s space law, but Victor Koman drove me crazy by getting really close and then twisting the law so hard I had to go look it up.

In Kings of the High Frontier, which was published in the 1990’s, Koman tells of an imaginary second Shuttle disaster leading to the rise of commercial companies to compete against the monolith that is NASA.  We follow the development of a host of different entrepreneurs, from students at NYU to billionaires, from space planes to rotary rockets, as they race to beat a treaty deadline which would place all space launch capability in the hands of the United Nations.  The Department of Defense doesn’t want the entrepreneurs to make it.  NASA doesn’t want the upstarts to show the agency up.  And, most malevolently of all, the architect of the new treaty and head of a space advocacy group who wants space to stay tidy and well-planned, even if it means human space travel is always thirty years away, doesn’t want them to succeed.  In short, this is the fictional companion—or precursor—to Greg Klerkx’s Lost in Space:  The Fall of NASA.

That’s all well and good and makes for a fine plot.  Additionally, Mr. Koman did a tremendous amount of research.  The first portion of the book lovingly geeks out over each rocket design and the secrecy in which the launch vehicles are constructed.  (I like to use launching from Central Park or Continue reading

Facebooktwittergoogle_pluspinterestlinkedin

Opportunities for the President and Congress to Ensure that Regulatory Agencies Do Not Improperly Use the Outer Space Treaty to Deny Access to Space or Impose Burdensome Costs

There has been a lot of discussion in the past couple of years about whether and how the Outer Space Treaty applies to private companies such as lunar habitat operators and asteroid miners, and whether these private actors may be denied access to space until Congress passes a law authorizing them.  Additionally, there is continuing discussion over whether and how the federal government may apply NASA’s planetary protection policy to private actors in space.  As discussed on this blog and as I have testified, under the law the regulatory agencies may not deny private actors access to space or impose planetary protection on private actors.  What should be done when not everyone agrees?

Solutions are available. The President by Executive Order, or the Congress through legislation, could ensure that NASA, the State Department, and the regulatory agencies do not deny private operators access to space by attempting to enforce treaty provisions that do not apply and are not self-executing.  This could be done for both Article VI of the Treaty, which requires countries who signed the treaty to authorize and continuously supervise their “non-governmental entities,” and for Article IX’s mandate to avoid harmful contamination of celestial bodies.  Its “planetary protection policy” is how NASA avoids harmful contamination from its own activities.

Because neither of these parts of the Treaty are self-executing, and because they are thus not domestically enforceable federal law, the President could ensure that regulatory agencies such as the Federal Aviation Administration, the Federal Communications Commission, and the National Oceanic and Atmospheric Administration, as well as NASA and the State Department, do not deny access to space to private operators on the basis of Articles VI or IX.  An Executive Order is a perfect vehicle for ensuring that relevant portions of the government are reminded to comply with existing law.

Congress could follow a similar approach.  It could through legislation also direct the regulators that they may not deny or attempt to deny access to space on the basis of non-self-executing treaty provisions, including both Articles VI and the harmful contamination provisions of Article IX.

Authorization and Continuing Supervision.

The FAA’s press release about its 2016 favorable payload review of Moon Express’s operation of a spacecraft and lunar vehicle shows that the FAA is attempting to enforce Article VI against private actors, even without implementing legislation from Congress.  The FAA noted that Article VI requires authorization and supervision of the activities of non-governmental entities in outer space, and that the FAA consulted with and considered comments from the Department of State. With the State Department’s concurrence, the FAA announced that because it was able to enforce the representations that Moon Express made in its application for a payload review, this particular favorable payload determination complied with Article VI.

The FAA also made sure to note, however, that not all non-traditional missions would necessarily lend themselves to such a favorable outcome, and future missions may require Congress to grant the FAA additional authority “to ensure conformity with the Outer Space Treaty.” In other words, the FAA believes it has the legal ability or obligation to deny access to space to entities not authorized and continuously supervised under current law.

Article VI of the Outer Space Treaty states:

States Parties to the Treaty shall 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, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

The United States itself is in compliance with Article VI because the treaty leaves the decisions about how to comply with its rather ambiguous terms to each country. By its own terms, Article VI legally does not and cannot prohibit space operations by the commercial sector.  Instead Article VI leaves it to each country to decide which particular activities require regulation, how that regulation will be carried out, and with how much supervision. Accordingly, if Congress hasn’t said that a certain activity, such as lunar harp playing, requires authorization and continuing supervision then lunar harp playing does not.

Additionally, because Article VI is not self-executing, and because the Supreme Court in Medellin ruled that non-self-executing treaties are not domestically enforceable federal law, the agencies may not enforce this treaty provision against the private sector.  Just as in Medellin where a President could not unilaterally impose a treaty obligation on the states, regulatory agencies should not attempt to impose treaty obligations on the private sector without Congressional action.   An Executive Order could ensure that the agencies abide by this.  So could Congress by legislation.

Planetary Protection.  The harmful contamination provisions of the Treaty also call out for clarification.  Although NASA and the State Department are not regulatory agencies, they could use the consultation process of the Federal Aviation Administration’s payload review to attempt to apply NASA’s planetary protection policy, and so should be included in the directives of any Executive Order or new law.  In order to prevent such attempts, an Executive Order or a new law could note that the bulk of the Outer Space Treaty’s requirements apply to “States Parties,” and the United States and its agencies should not improperly interpret those provisions as applying to the private sector.

Continue reading

Facebooktwittergoogle_pluspinterestlinkedin

Effective Date for FCC Technical Rules for DBS and BSS Satellite Services

On August 8, 2017, the Federal Communications Commission published in the Federal Register a summary of a Third Report and Order from April 2017. The FCC intends the rules  to mitigate ground-path interference between the Digital Broadcasting Satellite Service and the Broadcasting Satellite Service in the 17.3–17.8 GHz band.  For the FCC, this allows it to create an effective date for its new rules.  The FCC adopts:

new rules to mitigate interference from DBS feeder-link earth stations to BSS consumer earth terminals (ground path interference) in the 17.3–17.8 GHz band.  We adopt a rule allowing currently-licensed DBS feeder link earth stations to continue operations under the terms of their current licenses, and to expand their facilities provided that new antennas are constructed within one kilometer of current antennas and the aggregate power-flux density of the station at any point does not increase.  We adopt a methodology for new DBS feeder-link earth stations, and require applicants for new DBS feeder-link earth stations to coordinate with BSS licensees to achieve agreement on interference mitigation. We adopt rules specifying the information applicants for new DBS feeder-link earth stations must provide for the purposes of coordination.

The full report and order is available here.

Effective Date:  September 7, 2017

 

Facebooktwittergoogle_pluspinterestlinkedin

But What About Parking Fees for Asteroids?

Space law is not exactly awash in court opinions. There are statutes. There are regulations. There are not a lot of cases. If, therefore, someone is interested in looking at property rights in space and remembers the case about the fellow who tried to charge NASA parking fees for landing on his asteroid, it behooves one to check out the actual court opinion.  There is one dismissing the fellow’s claim, and this is what I found.

The court’s dismissal of the complaint for failure to state a claim: Back in 2003, Mr. Gregory Nemitz filed a complaint against NASA for parking fees for NASA’s NEAR spacecraft landing on “his” asteroid. He alleged violations of the Fifth, Ninth, and Tenth Amendments of the Constitution, an implied breach of contract, and violation of Congress’s declaration of policy and purpose for NASA. The U.S. Government asked the court to dismiss the complaint. In his opposition to the United States’ Motion to Dismiss, Nemitz stated that “he does not seek a declaration from this Court that he has an ownership interest in” the asteroid at issue. Noting the inadequacy for “creating a property interest,” meaning establishing that he owned the asteroid, of Mr. Nemitz’s various filing under California’s Uniform Commercial Code and registration with the Archimedes Institute website, not to mention his disavowal of a request for a finding that he had a property interest, the Court held that Mr. Nemitz failed to assert a legally protectable property interest in the asteroid. Continue reading

Facebooktwittergoogle_pluspinterestlinkedin