Space Policy Proposal for the Trump Administration – Part 2 (Letters of Marque)

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.

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Space Policy Proposal for the Trump Administration – Part 1

Dr. Jerry Hendrix and Adam Routh of the Center for a New American Security (CNAS) recently published  A Space Policy for the Trump Administration.  For those interested in what the authors have to say about civil and national security space, please follow the link.  This analysis  focuses on interpretations of the Outer Space Treaty that could aid space commercialization.

Outer Space Treaties.  In what is music to my own ears, the authors advocate:

significant changes in the nation’s interpretation and enforcement of international laws that apply to space activities [and] expansion and freeing of the commercial space sector to fully harness the resources and wealth of space, … .

Specifically, the authors propose that the administration provide clarifying guidance on the space treaties:

Ambiguity in the 1967 Outer Space Treaty is both a benefit and a curse: although allowing countries to interpret the requirements and restrictions may provide a certain level of freedom, the treaty also contains internal conflicts that provide grounds for possible future conflict with regard to resource development. The Trump administration needs to provide a clear strategy for U.S. space policy efforts and assert a broader interpretation of the 1967 Outer Space Treaty. Because crafting a new international space agreement would be time-consuming and difficult, the best strategy is to provide clarifying guidance with regard to interpreting the current treaty for both domestic and international space actors.

The authors recommend proposing legislation to authorize and supervise space activities, but I did not find in the proposal the “significant changes in interpretation that the authors earlier advocated.  My own view is that the administration could reduce regulatory uncertainty regarding Article VI’s requirement that each country authorize and continuously supervise the acts of its national in outer space. A simple Executive Order might suffice to rein in those regulatory agencies that believe they can and should deny access to space on the basis of a non-self-executing treaty provision such as Article VI.

The authors quote my testimony regarding Article VI, specifically that “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.” What I hope they understand is that one of the points I was making was that not all activities require authorization and supervision.  From a standpoint of national interest, it would be reasonable for the U.S. to decide that only those activities which would, as the first portion of Article VI says, require the United States to “bear international responsibility” serve as candidates for regulation.  This suggests that the United States should authorize and supervise private activities that might expose the country to liability claims, namely, dangerous activities for which regulation would provide some added value.  Thus, the manufacture of cigarettes in orbit might require regulation, whereas robotic mining in the asteroid belt might not.  Other space activities do not, under current law, require authorization.

The authors recommend a light regulatory touch.   One important point to remember is that no regulatory touch stays light forever.  When it passed the Federal Aviation Act, Congress directed the FAA to impose minimum standards in the interest of safety.  Hardly a day goes by now that the FAA does not issue new airworthiness directives.  Similarly, back when the Departments of Commerce and Transportation were each vying to be the agency that regulated commercial space transportation, the decision was made, according to Norman Bowles’ description of events, on the basis of an agreement that the Office of Commercial Space Transportation not be placed in the FAA.  Guess where it is now?  (Personally, I think the FAA is as good a place as any to house commercial space transporation, but I raise the matter to show that unwritten understandings and intentions don’t always survive changes of personnel.)

Accordingly, Article VI is one treaty provision that would benefit from the authors’ recommendation that “the best strategy is to provide clarifying guidance with regard to interpreting the current treaty.”  Rather than calling for the passage of more legislation mandating regulation—however “light”—the President could issue an executive order clarifying that Article VI does not provide regulatory agencies such as the Federal Aviation Administration grounds for denying access to space.

Property Rights.  Property rights provide another opportunity for interpreting the Outer Space Treaty in a manner conducive to private investment and enterprise.  Article II of the treaty says:

Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

Article II’s bar applies to national appropriation, not private appropriation.  Given that Article II itself applies to national appropriation it, on its face, does not implicate private appropriation. To the extent that Article VI calls for countries to ensure their nationals’ conformity with the treaty, a less burdensome interpretation of Article II’s national appropriation ban would be that Article II did not intend private actors to serve as a conduit for national appropriation. Accordingly, state owned enterprises would not be able to appropriate outer space, but purely private entities could.  The President could make clear by Executive Order that this is the U.S. interpretation, thus reducing uncertainty for investors and the rest of the private sector.

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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

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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

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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

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Space Property Rights: More Common Law than Marxism, But That’s a Good Thing

I’ve been reading a lot of law review articles recently, and I feel like sharing.  In Deploying the Common Law to Quasi-Marxist Property on Mars,  Professor Thomas E. Simmons attempts to meld ye olde common law with a Marxist view of property rights.  I’m not so sure it’s all that Marxist, but he tries to come up with something with enough Marxism to satisfy the intent of the 1967 Outer Space Treaty–which we are reminded was negotiated with the former Soviet Union–while still giving the risk takers who settle space some measure of certainty and incentive for their efforts. Continue reading

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Senate Hearing on Reopening the American Frontier

On Tuesday this week, May 23, the Senate Subcommittee on Space, Science, and Competitiveness held a hearing titled Reopening the American Frontier: Exploring How the Outer Space Treaty will Impact American Commerce and Settlement in Space. There were two panels, and I was on the first panel with my friends and colleagues Jim Dunstan of Mobius Legal Group and Matt Schaeffer, professor of law and co-director of the space, cyber and telecommunications program at the University of Nebraska’s law school. We were asked to address possible impacts of the Outer Space Treaty on the expansion of our nation’s commerce and settlement in outer space. My testimony is available here, and Professor Schaeffer’s is available here.

Mine is substantially similar to what I provided the House space subcommittee in March, but this time I emphasized more the importance of recognizing that the “harmful contamination” provisions of Article IX do not apply to private actors, and that human beings should not be treated as contaminants no matter how germy we are.

I found Jim Dunstan’s testimony particularly helpful and edifying, and strongly urge everyone to read the whole thing, but I want to highlight certain of his points. He makes some of the same points I have stressed in the past with regard to the import of Article VI’s call for authorization and supervision not being self-executing, but he has his own take on why the United States need not regulate more than it already does. The following outtakes highlight Jim’s perspectives:

  • The “authorization” and “supervision” components of Article VI are subsidiary to the overall structure of Article VI which places both the responsibility and liability for treaty violations and damages for space activities on the nation itself. A failure to either authorize or continually supervise the activities of private nationals merely increases the risk that a country might be liable for damages;

  • Article VI is not “self-executing,” meaning that the authorization and supervision language is not the “law of the land” in the United States, absent domestic legislation implementing Article VI. The case of Medellin v. Texas makes a clear distinction between treaty provisions that, by their language and nature, become the “law of the land” in the U.S., and those treaty provisions that require domestic implementation to have the force of law;

  • The Tenth Amendment (echoing the Declaration of Independence) provides the required “authorization” component of Article VI for Americans;

  • Congress has the discretion, as a matter of both international and American constitutional law, to decide how to implement its Article VI responsibility to provide “ongoing supervision” for private American actors in space;

With respect to Article VI and the previous administration’s report calling for the regulation of all U.S. missions in space he says:

The White House report notes, correctly, that some planned missions involve activity that is not currently regulated and then concludes, incorrectly, the U.S. is not meeting its obligations under Article VI. But Article VI does not, in and of itself, require any specific form of authorization and supervision—or that, in the absence of such, non-governmental activities are prohibited.

Interestingly, Jim ties treaty compliance to the fact that Article VI explicitly lays out the consequences for any lack of authorization and supervision:

 A lack of supervision is not, in and of itself, a violation of international law; it merely raises the chances that a non-governmental activity might run afoul of the OST prohibitions and that the country responsible be held liable for consequential damages because that country’s citizens seek to engage in a behavior that is a per se violation of the OST, or creates a probability that those activities will interfere with the activities of another space activity resulting in harm (e.g., orbital collision or frequency interference).  Congress now has the opportunity to decide where on that continuum of regulation it wishes to place the United States.

This might mean, as well, I’m figuring, that even a country that puts round the clock surveillance on its private actors and asks for the whole gamut of risk assessments, hazard analyses, mitigation plans, FMECAs, and FMAs before granting an authorization, may still be internationally responsible for any damage that private actor might cause. One response to this liability exposure that we’ve seen in the United States is to require launch and reentry licensees to obtain third party liability insurance under 51 U.S.C. ch. 509.

As for authorization, Jim looks to the Tenth Amendment of the Constitution:

The White House Section 108 Report also ignores the fact that in the United States, innovative outer space activities are already authorized. That authorization predates the space era by nearly 200 years. As Americans, we declared in 1776 that “[w]e hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The Tenth Amendment to the U.S. Constitution carries through this concept when it states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In short, absent a constitutionally consistent law prohibiting “innovative space activities,” Americans are authorized to pursue those activities. In other words, that which is not forbidden is permitted.

The above provides real food for thought, and I applaud Jim’s insights and am very glad he shared them with the subcommittee.

I don’t agree that Article IX ‘s harmful contamination provisions are self-executing or even applicable to private actors, applying as they do to “States Parties,” but I addressed that in my own testimony, as linked above.

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Senate Space Subcommittee Hearing

On Tuesday, May 23, 2017, the Senate Committee on Commerce, Science, and Transportation will hold a hearing in the Subcommittee on Space, Science, and Competitiveness entitled, “Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space.” The hearing will be held at 2:30 p.m. in room 253 of the Russell Senate Office Building and will be live streamed.  I am honored to be included on the witness list and look forward to testifying.

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Podcast for Hotel Mars Now Available

I had a fun chat with John Batchelor and David Livingstone about the Outer Space Treaty and related issues on their show Hotel Mars.  The podcast is now available on John Batchelor’s site here where I understand it will remain for a week or two.  Just to be clear, I’m sure that I said the Outer Space Treaty was flexible, rather than that it contained loopholes. “Loopholes” makes something sound like a bug, not a feature. Also, the podcast is available permanently on David Livingston’s The Space Show site here.

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The “Non-Interference” Provision of Article IX of the Outer Space Treaty and Property Rights

Sometimes when you start a new project or line of inquiry it’s helpful to knock out the deadwood first. Then you can work on the bits that will get you somewhere. I want to understand private property rights in outer space, and lots of people say the Outer Space Treaty forbids a private person’s rights in “real property,” namely, land. Article II of the Outer Space Treaty isn’t deadwood. It forbids national appropriation in outer space. Article IX, however, might be. I want to address it first because I have heard theories floated about how it may protect some property interests.

In law school we learned that property rights were a collection of rights, which one could separate and parcel out. My property professor called them a bundle of sticks. You could have a lifetime interest in a bit of land but no ability to sell it. That’s not the whole bundle, but it’s not nothing. You could lease someone’s land for a year, but then have to leave it. (That’s more of a twig.) Both the lease and the lifetime interest constitute limited property rights. My question then is: does Article IX afford some form of property right, not all of them, necessarily, but some?

It’s always nice, when practicing law, to read what the words say, since they are the best expression of what someone meant. When you’re writing a law or regulation, you’re supposed to say what you mean and mean what you say, so we’ll figure that applies to treaties, too. Given the Supreme Court’s propensity for treating treaties like contracts, this is likely a sound approach. So, what does Article IX say? Continue reading

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