Reopening the American Frontier (cont’d): Extracted Resources, Supervising and Authorizing, Foreign Retaliation, and Customary International Law

I have now had an opportunity to read the written testimony of Professor Matt Schaefer from last week’s Senate hearing on the impact of the Outer Space Treaty on American space commerce and settlement.  This post highlights a good nugget from the testimony on property rights and takes issue with a couple of other points.

Extracted resources.  First, on the issue of property rights in extracted resources, he notes that the 2015 law recognizing that private persons may own resources extracted from celestial bodies does not mark a change in the law or a deviation from the treaties.  Instead, the new law is consistent with “at least 35 years of long-standing U.S. policy and legal interpretations dating back to 1979-1980 in statements by Secretary of State Vance and State Department Legal Advisor Owen.”  In support of that observation he shares valuable historical documents in footnote 4:

See Letter from Secretary of State Vance to Sen. Church, Chairman of Senate Foreign Relations Committee, Nov. 28, 1979, reprinted in Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Senate Committee on Commerce, Science and Transportation, August 1980, at p. 313 (stating that the Moon Treaty provides no moratorium on exploitation of space resources, that Art. II of the Outer Space Treaty’s ban on appropriation only applies to resources in place, and that the Outer Space Treaty and Moon Agreement would allow for ownership of extracted space resources); See also Testimony of State Dept. Legal Advisor Owen in Hearings Before the Subcommittee on Science, Technology and Space of the Senate Committee on Commerce, Science, and Transportation on Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (96th Cong., July 29 & 31, 1980)(both oral and written testimony) at p. 2-19 (“American companies will have a continuing legal right to exploit the Moon’s resources….”; “…once [resources] have been extracted from the Moon, ownership can be asserted at that point…”; “exploitation [can] go forward and that one can own what one can remove from the surface or subsurface of a celestial body…the negotiating history [of the Moon Agreement] makes it very clear that that was contemplated by the parties.”; “The United States took the position from the outset that such exploitation should be permitted, that such ownership after extraction should be permitted. And that…is an authoritative interpretation ….”; “…we have insisted that even after such a regime is established [an international one under the Moon Treaty], the right of unilateral exploitation will continue to be available to those States which choose not to participate in such a regime.”)

In short, the United States has long recognized that neither the Outer Space Treaty nor even the Moon Treaty (which the United States did not enter into) prohibits ownership of resources extracted from celestial bodies.  This is all good.  It did raise the question of why we needed the 2015 law, but perhaps that was intended to ensure the Executive Branch wouldn’t change its position.

Article VI.  Although Matt agrees that the Article VI proviso that States Parties must authorize and supervise the acts of their nationals in outer space is not self-executing, he has a happier view than I do of what the Executive Branch could do wrong.  Specifically, he states that “[i]f the Executive Branch believed that Art. VI was self-executing, then it would already maintain domestic authority to authorize on-orbit activities, at least to ensure their compliance with the OST… .”  Certainly this would be one result of believing that Article VI was self-executing.  However, another corollary result would be for a regulatory agency to deny someone a positive payload determination on the grounds that there was no regulatory oversight of that person’s activity, whatever the activity might be.  The claimed foreign policy interest to support this incorrect denial would be that Article VI required authorization and supervision of space activities of non-governmental entities.  It is a circular argument, but it is ready to hand, and it is, in fact, this very view that leads to the regulatory uncertainty that the regulatory agencies have created.

The  previous administration’s report favors more regulation as the answer to regulatory uncertainty.  Another option, however, would be for the regulatory agencies to acknowledge that they may not lawfully stop an activity on the basis of Article VI unless Congress authorizes them to do so.  That, too, would remove regulatory uncertainty.  The regulatory agencies would merely need to recognize that without implementing legislation from Congress, what is not forbidden is allowed.

Foreign retaliation.  Professor Schaefer’s testimony raises the specter of foreign retaliation if the U.S. does not authorize and supervise the acts of its nationals yet foreign retaliation is mentioned nowhere in Article VI.  To the contrary, as our co-panelist Jim Dunstan noted, Article VI already spells out the consequence to the United States of failing to authorize and supervise its nationals.  The United States would be “internationally responsible” for any damage caused by a U.S. national. When a treaty contains an explicit remedy, is there a legal basis for deploying an alternate remedy in the form of “retaliation?”

Customary international law.  Finally, further research on the nature of customary international law may be in order.  Many people refer to the Outer Space Treaty as having become customary international law.   However, the Outer Space Treaty, like many others, allows the countries that signed the treaty to withdraw from it.  As the State Department has noted, “Even universal adherence to a treaty does not necessarily mean that the treaty’s provisions have become customary international law,….”  After all, if signing a treaty turned it into customary international law, the treaty’s provision allowing withdrawal would be a nullity.  Countries might think twice before signing on if they wouldn’t be able to withdraw.

Moreover, since state practice is an element of whether customary international law even exists in the first place, there has to be an opportunity for state practice to develop.  Not a lot is going on commercially in space yet.  What is, is not always authorized, so state practice is a mixed bag.  As noted previously on this blog, space tourism occurs without authorization.  Or complaint.  On-orbit transportation takes place without authorization.  Both the Dragon capsule of SpaceX and the Cygnus capsule of Orbital ATK orbit without a license, permit, certificate, authorization, approval, waiver, exemption, or blessing.  NASA, which is the customer for these two launch operators, is not a regulator.  It enters into contracts for services, but it is not carrying out the orbital transport any more than it is carrying out the SpaceX or Orbital launches, which require FAA licenses.  Arguably, NASA supervises the docking, but orbital transport may be characterized as a separate activity.  Accordingly, just looking at the practice of the United States to date, it is mixed as to whether it requires authorization and supervision of all activities.  Accordingly, it is not obvious that we have any consistent state practice to look to to find that the treaty has turned into customary international law.