Monday, June 11, 2012

ISU SSP12: Week 1

If you've read the first entry, you'll remember I started the blog to document my time with International Space University's SSP12 in Melbourne, Florida, sponsored by FIT and NASA Kennedy Space Center (KSC).  Week 1 has ended and Week 2 begun.  It's been said that ISU actually stands for insufficient sleep university, and I can see why.  The staff this year has done a very good job keeping us busy.  For participants we are somewhere in the 130 range (10 Americans), with 30 or 31 countries represented.  Not surprisingly, engineers represent about 58% of the participants, but law and policy makes a respectable showing at 7%.  There are participants from all the major Space Law programs (Nebraska, Paris, Leiden, and McGill), so I look forward to seeing if they have different perspectives during our discussions.

After one week we have already been to Brevard Community College's Planetarium. Unfortunately it was cloudy here in Melbourne, so we missed the Venus transit.  We also got to spend Saturday at the KSC visitor's center, and will be making several future trips to get a behind the scenes view of the complex.  I'm very excited about that.  Disney has also sent some sponsorship our way, and we'll be getting day passes for the parks this coming Saturday.  Like I said, they're keeping us busy.

I have also been enjoying the coursework.  We're still covering introductory classes, but since most of them are science/engineering related I find them interesting and plenty complicated.  Work has also begun on the four Team Projects (TP).  For anyone unfamiliar with the SSP system, each class works on TPs relevant to the space sector, preparing 100 page papers that will be presented at the International Astronautical Congress.  This year's topics are STE(A)M [Science, Technology, Education, (Art), and Mathematics] Space Debris Mitigation and Removal, Spaceports (addressing both in orbit and on celestial bodies), and Next Generation Space Stations.  I am working on the space stations group, so if any readers can point me to good resources about the process that lead to current ISS agreements, and assessments/critiques about how it has worked out in practice, I will be beginning my research soon.  I am the only lawyer in that TP, which I think can be fun since I will be largely autonomous, but it will also mean a very busy summer.

That about sums it up for now. Except to mention that Bill Nye joined the participants for dinner in the cafeteria this evening.

Sunday, June 3, 2012

Continued Discussion of Property Rights

Lest I start my career with an unresponded-to accusation of laziness, I would like to address some of the points made in Mr. Simberg's response to my last post.
Setting aside what I think is an unfair accusation of disingenuity, this is simply wrong. The legislation makes no “promise” to not take military or other action. It simply refuses to promise to do so. As I note in the paper, how the U.S. government would respond to a transgression against a recognized property owner, or whether it would, is completely unspecified by the proposed legislation — it would be a political decision taken at the time of the encroachment. For the government to recognize the right of an owner to lunar real estate is no more an “appropriation” or declaration of sovereignty than is our recognition of Israel or Taiwan’s right to exist. Surely Mr. Dawson isn’t saying that our stance toward those two nations represents a declaration of sovereignty over them?
First, the promise not to take military action to which I was referring concerned the party with the rights the US would be "recognizing."  Meaning, through the legislation the US would be promising not to challenge the rights of the private company.  I was not addressing the part of the legislation stating that the US makes no pledge to defend the private company.  Second, I would say that the US' position on Israel and Taiwan's right to exist is a clear indication that the US recognizes those States' sovereignty over their respective territories.  In the same way, recognizing the property rights of a foreign company could be recognition of the sovereignty or appropriation of that land by the company's State.  Mr. Simberg also suggests that the legislation does not purport to grant rights:
Again, there is confusion here. The legislation does not provide a way for the the U.S. to “grant” a property right — it cannot do so without a sovereignty claim, which would be a treaty violation. It simply requires that such a right be recognized by the U.S. government.
 It is unclear to me how a right that has not been granted can be recognized.  Furthermore, Section 4(4) of the proposed legislation reads:
Recognized ownership of land under this law shall include all rights normally associated with land ownership, including but not limited to the exclusive right to subdivide the property and sell portions to others, to mine any minerals or utilize any resources on or under the land, as long as it is done in a responsible manner which does not cause unreasonable harm to the environment or other people
 It is equally unclear to me how the US is defining the rights it is not creating, but simply recognizing.  Mr. Simberg went on to discuss my concerns that if acting alone, the US would be put at a disadvantage:
First of all, the legislation does not propose that this be done unilaterally — it explicitly calls for the State Department to negotiate with other nations to get agreements of reciprocity. And it would not at all “require” the U.S. to “recognize the appropriations of outer space by other nations.” In fact, it is just the opposite. The legislation is very clear about what the U.S. will recognize and under what conditions, and one of them is that it not be a national sovereign claim. I have to wonder if the critics of the proposed legislation have actually read it, or if they take the Eric Holder approach to legal analysis?
 Section 9 of the proposed legislation certainly urges other nations to take similar actions.  It even goes so far as to guarantee the protections of the law to countries that offer similar protections, through legislation or international agreement, to US citizens.  However, there is nothing that would require that the country offer such protections.  Therefore, the risk of the US ultimately proceeding unilaterally still exists.  And yes, Section 3 limits applicability of the legislation to those companies and individuals that are not controlled by any sovereign State.  This would not stop another State from arguing that the US' recognition of the rights of one of its private companies constituted recognition by the US of that State's sovereignty over the land in question.  Such recognition, it could be argued, would be a necessary first step to recognizing a land right if the US was not purporting to grant the right itself.  Given the sometimes vague nature of the outer space treaties, I believe it to be disadvantageous to provide this opportunity.

I would like to thank Mr. Simberg for taking the time to respond to my first post.  One of the most redeeming qualities to blogging, I find, is that it allows the opportunity for faster and fuller debate than does the slow exchange of published papers.

Thursday, May 31, 2012

Can the US Grant Property Rights in Outer Space: Some Thoughts on Rand Simberg's White Paper

 I am now in a hotel in South Carolina on my way down to Florida to start the SSP program on Saturday. So look forward to some interesting posts from there.  I'm excited to get the opportunity to meet and work with such a diverse group of space professionals.  In the meantime, I believe I promised some comments on Simberg's white paper.

Since I know some of my readers are casual space enthusiasts, I will summarize the salient points.  Mr. Simberg proposes that the 1967 Outer Space Treaty (OST) does not prohibit the recognition of property rights in space.  He supports the passing of legislation that would enable the US to quietly recognize such claims from any private entity, regardless of citizenship, so long as certain conditions were met.  Furthermore, the US would not be obligated to take any actions to defend these claims against other nations.  To make things clear from the very beginning, I disagree.  I am not alone in this.  James Dunstan, who has far greater credentials than I, put forth his own white paper in response.

My thoughts: Foremost, I think the terminology used by Mr. Simberg is disingenuous.  The proposed legislation, as I read it, does not create a property right at all.  By describing it as such, I believe Mr. Simberg is concealing some of the more important areas of the discussion.  A property right has no value if it does not protect your interests from third parties.  To grant a property right, a nation must have sovereignty or control over the property in question, otherwise the grant is meaningless.  Assuming that the legislation is not intended to be meaningless, what would actually happen under this proposal is that the United States would essentially promise not to take military or other action to remove a private party from a portion of a celestial body.  Ignoring space law for the moment, and acknowledging that I am not a Constitutional scholar, I have serious concerns that such a piece of legislation would be constitutional.  This is because it appears to be an attempt to limit the President's commander-in-chief and foreign affairs powers.

Assuming, arguendo, that there are no US constitutional impediments to the legislation, the OST remains a problem.  The OST prohibits national appropriation of outer space and celestial bodies through any means.  Remember also that nations are responsible for the space activities of their nationals.  If we accept that the US would not actually be granting a property right, but rather refraining from enforcing the provisions of the OST against appropriation, then it couldn't really be accused of appropriation itself unless the private party were its own citizen (I'll get back to this issue in a bit).  There are no provisions of the OST that require a State Party to take actions enforcing the Treaty.  If China were to claim the entirety of the moon tomorrow, the US would not be required to respond.  That is a political decision.  However, I believe that passing a law stating that the US would systematically ignore repeated violations of the Treaty's provisions would very much go against the object and purpose of the OST.  All signatories to a treaty have the minimal obligation of not violating a treaty's object and purpose.

And here I apologize for my imperfect memory.  I believe that Mr. Simberg, subsequent to publishing his white paper, responded to my next point, but I do not remember the specifics of his answer.  Basically, there is the issue that while the US could choose to ignore the actions of foreign private companies, it can not do so for its domestic entities.  This is because, as mentioned above, States are responsible for their nationals and such private claims to a property right would constitute appropriation in violation of the OST. I believe Mr. Simberg responded that while such an interpretation is possible under the treaty, such an outcome would be preposterous.  [If anyone has a citation/quotation for any of this response your comments would be appreciated.]  However, that was preposterous in the idea that the US could grant a property right to foreigners but not its own citizens.  But since the US wouldn't actually be granting a property right at all, it is not preposterous that the US could ignore violations by other nations, but not those committed by its own nationals.

My final concern with the proposed legislation is a practical/political one.  Whether the legislation violates the OST or US Constitution, or neither, I do not believe that it would be a good idea.  I am not saying that the space regime should not be made more ready for commercial enterprise, but that this is not the way.  As difficult as renegotiation of parts of the OST may be, it is the proper way to reach a new agreement.  By proceeding unilaterally in this manner the US risks placing itself at a severe disadvantage.  If this legislation were implemented, it would essentially require the US to recognize the appropriation of portions of outer space by other nations.  But there would be no reciprocal protection for American companies.  If the US is recognizing all such claims by foreign private entities, then it would be in other nations' best interests to bargain amongst one another to divvy up portions of outer space while challenging any attempts by US companies to do the same.  While this could certainly force the issue of arriving at a clear interpretation of the OST, I do not believe it is in America's best interests to go about it in this way.

I hope I have not mischaracterized anyone else's arguments.  If I have, feel free to correct me in the comments section.

Tuesday, May 22, 2012

Dragon Flies

Not a legal issue, but who would I be if I didn't commemorate the successful launch by SpaceX of the Falcon 9/Dragon.  Anyone who didn't stay/get up to watch it live can catch it here: YouTube-SpaceX Launch.  It's a good day for space.

Friday, May 4, 2012


I apologize for the delay in providing new posts, but the end of the academic year and preparations for moving back to NY have cut away writing time.  To keep you occupied, if you were interested in the legal implications for Planetary Resources, here is a youtube video from Bloomberg Law with UNL Professor Frans von der Dunk discussing those issues in greater depth.

Friday, April 27, 2012

Does the US' Use of Drones Violate the Laws of War?

To stay true to the name of the blog, we will call drones a cyber law issue and I will post something about them.  I'm sure everyone remembers when Al-Awlaki was targeted and killed via drone strike. This entry is a modified version of something I wrote earlier in the year in response to a listserv discussion on the topic of the legality of the killing.  This particular discussion occurred after Attorney General Holder gave a speech at a law school, where he presented a justification.  I have tried to reword it so that it doesn't read like you're just getting one side of a conversation, apologies if I have missed anything.

There was no formal declaration of war, however, there was an authorization for the use of military force.  Additionally, Congress has passed legislation declaring anyone involved with Al Qaeda to be an unlawful enemy belligerent.  When the war on terror began it was in large part being conducted against the Taliban.  While the Taliban was not widely recognized internationally as a State, it controlled large parts of Afghanistan, including Kabul.  Even now the Taliban controls territory in Afghanistan.  Despite the non-State character of other participants, the conflict is most analogous to military activities, rather than crime.  Therefore, it is the laws of armed conflict, and not the law enforcement model that controls.

Under the laws of armed conflict, unprivileged enemy belligerents are not entitled to the protections of the laws of war, which protect lawful soldiers.  Therefore, in addition to being unlawful combatants, they are criminals.  This is why the government asserts that they are also able to be tried in civilian courts.  The ability to do so is not the same as the obligation.  Enemy combatants are lawful targets, and may be targeted at any time while the conflict is ongoing.  Despite what the ACLU says, international humanitarian law does not make reference to the "battlefield."  Issues of national sovereignty are implicated when a strike is conducted in a State with which we were not at war.  If that State were to consent to the operation, there would be no problem under international law.  Members of the leadership are enemy combatants even if they never pick up a weapon.

The Constitution provides for due process.  It does not define what due process is.  In Ex Parte Quirin, a US citizen was captured on US soil, tried by military commission and executed for committing sabotage along with German Nazis.  This is distinguished from Ex Parte Milligan, where a US citizen on US soil could not be tried by military commission while US courts were open and functioning, because in Quirin the US citizen was an enemy combatant, which was not the case in Milligan.  Therefore, SCOTUS has held that US citizens who are enemy combatants are not granted the same constitutional protections as US citizens being tried under the law enforcement/criminal model.  The due process is different.

I am not arguing that Holder's opinion is perfect.  I do have concerns relating to the complete secrecy in due process determinations.  At the moment we are forced to rely on the AG's declaration that due process is being met.  As an example of possible alternate methods, the Israeli system calls for a judicial determination after-the-fact so that there is some accountability, while still taking the national security concerns for secrecy into account.

As for the lack of honor in using drones that has been mentioned, LOAC prohibits the use of certain weapons.  Generally prohibited weapons are those that are indiscriminate and those designed to inflict unnecessary suffering.  Neither is the case for drones.  It is no different from having a pilot in the cockpit, except the pilot's life is not at risk, and they are able to stay airborne for longer periods of time.

Tuesday, April 24, 2012

Planetary Resources Officially Announces Who and What They Are

Lucky me, I don't even have to go back in time quite yet.  Just after I finished with my introduction I was able to watch a live stream of the Planetary Resources ( press conference.  Much to probably no one's surprise after all the speculation and leaks leading up to today's announcement, PR is an asteroid mining company.  Unfortunately the video wasn't set up to show the slides that accompanied the speeches, but I think what they said was informative enough for my purposes.  I'll recap the science/technology aspects as well as I can, and apologize for any demonstrated gaps in my understanding.  This is exactly the sort of problem I'm trying to correct by attending ISU this summer.

Press Conference Summary:

The press conference was hosted by the Museum of Flight in Seattle, Washington.  PR's co-founders are Eric Anderson and Dr. Peter Diamandis.  Diamandis, it's worth noting, is also a founder of the ISU.  President and Chief Engineer Chris Lewicki also spoke.  The company is headquartered in Bellevue, Washington.

Dr. Diamandis' presentation focused on what he considered the 5 key elements for why now is the time for asteroid mining.  First, he emphasized that growing technologies have made it possible for small groups of talented individuals to do what was once only possible for governments.  Next, developments in other aspects of the commercial space industry, such as the availability of commercial space launch, will help to reduce the costs associated with such an operation.  Third, as we have seen through the endeavors of individuals such as Elon Musk and Richard Branson, there is a new breed of risk tolerant investors who are willing to gamble on commercial space exploration.  Fourth, scarcity of natural resources is a growing problem that can be helped by gaining access to asteroids through improved technology.  Lastly, the demonstrated interest of NASA in partnering with private companies sets the stage for the effort being more feasible as well.

Eric Anderson spoke more to the business plan.  He addressed why mining asteroids would be so valuable.  He joked that at PR they don't understand why their announcement is a big deal since we have been mining asteroids for years.  This is meant to point out that certain precious metals, like those in the platinum group, do not occur in the Earth's crust.  Platinum is currently mined from sites of asteroid impact.  The ability to mine these metals from asteroids would be a dramatic increase in their supply.  Additionally, asteroids are a good source of water in space.  Mr. Anderson emphasized the importance of this to making deep space exploration possible and affordable.  One bit of science I did pick up from the announcement is that the hydrogen and oxygen from water makes an excellent rocket propellant.  Through the mining process, Anderson projected the possibility for establishing "gas stations" on the way to and from destinations like Mars.

As for how the company will operate, Mr. Anderson gave an introduction that was expanded upon by Chris Lewicki.  PR is developing their Arkyd line of spacecraft, for which they have planned out a 100, 200, and 300 series.  During the prospecting state the satellites would monitor near Earth asteroids to determine which asteroid would be the most profitable to target (based on materials that could be mined, ease of landing, needs of national space agencies, etc.), and then extracting could begin.  Mr. Anderson stated that we currently know of about 9 thousand near-Earth asteroids measuring more than 50 meters, which he estimates to only be about 1% of what is actually out there.  The first step toward the ultimate functionality of the company is the Arkyd 100 series. The Arkyd 101 was described as a space telescope operating in low Earth orbit, which could be pointed toward the asteroids for initial long-range prospecting, or toward Earth.  The dual use nature of the telescope will allow PR to gain some income just by providing remote sensing services to educational institutions.

PR also emphasized the importance of their "swarm" approach.  The goal here is to think of their satellite manufacture as an assembly line, where they are protected by the large number of satellites operating at any given time.  They also stated that they intend this to remain a robotics-oriented project, since the addition of astronauts makes things much more expensive.  I find this particularly interesting since there is always the fear that when space exploration doesn't involve humans, the public won't care.  PR, however, has enjoyed a large amount of media attention and seems to have captured the imaginations and interest of everyone.

Legal Issues:

On the legal side of things, the many implications of the commercialization of space has been a hotly debated topic recently.  Rand Simberg's proposal for US property "rights" legislation on the moon is probably the most well known instance at the moment.  The Moon Agreement calls for an equitable sharing in the benefits derived from resources taken from celestial bodies in our solar system.  However, the Moon Agreement has not been signed by the United States and other major space powers, and is not customary international law.  Therefore, it is only binding upon those States that have ratified or acceded to it.

Article I of the Outer Space Treaty, which has been ratified by the major space powers, states that "the exploration and use of outer space, including ... other celestial bodies, shall be carried out for the benefit and in the interests of all countries...."  Article II prohibits national appropriation through any means.  Given the lack of similar activities in the past, it is hard to know exactly what this means.  All of PR's activities in space can be attributed to the US through the concept of State responsibility. Arguably, conducting mining operations or establishing a long term fueling station on an asteroid could be seen as appropriation of the asteroid by the United States.  Similar problems are seen when discussing property rights on the moon for commercial enterprises.  The current international regime in space law is not conducive to commercial exploitation.  The ambiguities in the space treaties create real political risks for governments and economic ones for private companies that are seeking to spear-head the industry.  I think that Dr. Diamandis handled this issue well today when discussing how PR seeks to bring these resources back to mankind or humanity, and not the United States.  But, given the optimistic timeline of the venture, it is important for these issues to be clarified on the international political level, and soon.