When I prepared last week’s post on CNAS’s proposed Space Policy for the Trump Administration, I did not plan a two part series. However, last week’s post got long, and, more importantly, the writers had proposed using letters of marque, which are semi-piratical and kind of glorious. So that pretty much mandated a second post, because space pirates. (Not really space pirates, of course, because letters of marque make otherwise questionable activities ok.)
Letters of Marque. The authors raised the possibility of the government enlisting the private sector to clean up space debris.
Much in the same way as Congress used letters of marque to allow private maritime vessels to act as military tools of the state—with the promise of payment and profit for their efforts—the government could entice private space ventures to participate in a public mission: cleaning up space debris, acting as situational awareness networks, and servicing nearby satellites, among many other tasks.
This is charming, and presumably letters of marque are not the same as government contracting. Although the authors may have raised letters of marque purely for historical context, the somewhat hostile implications of these instruments spark questions for debris removal. The U.S. Constitution, Art. I, Sec. 8, cl. 11, states that the Congress shall have the power to “Declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” According to scholars,
At the time of the Founding, the sovereign authorized holders of letters of marque and reprisal to engage in hostile actions against enemies of the state. The common understanding of “Reprisal” is a seizure of property (or sometimes persons) of a foreign state for redressing an injury committed by that state.
If the authors do indeed recommend the use of letters of marque, it could mean they recommend the removal of orbital debris with or without the debris owner’s permission, up to and including the debris of foreign nation states. Would it be better if that’s not what they mean?
Regardless of whether the government issued letters of marque or merely entered into contracts with the private sector, would the proposal run afoul of Article VIII of the Outer Space Treaty? Article VIII says that ownership of an object is not changed by it being in space. This suggests that a space object cannot be considered abandoned. Just to make it really hard to hold a civic clean-up day, that same provision says that “[s]uch objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.” I’ve heard lots of of people say that one may not salvage in space due to the requirement that objects be returned to the state of registry. Are they right? One would need to check before issuing letters of marque or even taking the more plebeian route available through the Federal Acquisition Regulations.
Could, however, the maritime analog apply here? After all, you can own something terrestrially but abandon it or otherwise sit on your rights. Article VIII says that “ownership of objects…is not affected by their presence in outer space.” Arguably, if ownership is not affected by being in space, all the usual rules of ownership, including principles of abandonment, might not be affected either. There is however, the owners’ pesky anticipation of getting their stuff back if someone else gets a hold of it. Nonetheless, this perspective creates interesting possibilities.
Finally, for anyone sailing the stellar seas under a letter of marque, it might be good to know where liability lies before starting to scavenge in orbit. Personally, I’d go look at state laws regarding tow truck operations.