Property RIghts in Space (Part II): Post-NewSpace Conference Thoughts – Posey ASTEROIDS Act, Bigelow Payload Safety Review, On-Orbit Jurisdiction, Etc.

To begin, the discussion today served as good evidence that property rights issues in space are indeed a mix of law, policy, politics, diplomacy, and technology. Thanks to my fellow panelists and the audience.

1) Resources extracted from lunar bodies and asteroids can be brought back to Earth and utilized and sold and “owned” in that sense. There should be no debate over this (Jim Muncy reminded the audience today of the Apollo example, and Sagi Kfir and Berin Szoka reminded the audience of numerous Soviet/Russian examples of resources samples be returned to Earth and owned by the extracting nation and even sold in some cases).  In other words, there should be no controversy over that aspect/provision within Rep. Posey’s ASTEROIDS Act of 2014. Indeed, the act should specifically state that the granting of a property interest in extracted resources is consistent with international law.

2) Non-interference rights with regard to surface and potentially sub-surface activities: A non-interference principle is certainly appropriate and consistent with international space law, including Art. IX of the Outer Space Treaty that obligates countries to show “due regard” for the interests of other nation’s space activities and requires advance consultations when a nation undertakes an activity in space that “would potentially cause harmful interference” with another nation’s space activity. Bigelow Aerospace’s payload safety review request speaking in terms of operational zones that would be “organic” or variable depending on the activity and Rep. Posey’s ASTEROIDS Act are indeed moving along the correct path. Of course, FAA may wonder whether it can grant operational zones in a payload safety request under its current authority but the safety zones established around the ISS do provide some precedent. Jim Muncy argued that Secretary of Transportation has inferred or implied jurisdiction over things that normally think of going beyond launch phase such as national security considerations and indeed claimed the ISS safety zone was done under authority to protect the general public.

If the Congress went so far as to legislate something akin to the Space Settlement Institute’s proposed Space Settlement Act’s provisions ( e.g. requiring government to recognize claims of private companies on Moon to upwards of 600,000 square miles –4% of surface — if company permanently inhabits settlement with regular transportation) the backlash internationally would be much greater.

3) How else might Posey ASTEROIDS Act legislation be improved? Rep. Posey’s ASTEROIDS Act gives non-interference rights if entity is first in time, if derived on a reasonable basis, and if the activity is in accord with international obligations of the United States. It refers in the preamble to promoting exploration and use of asteroids but when defining an asteroid mining utilization entity, it speaks in terms of a company that explores or utilizes. Further, the non-interference right applicable between entities the US exercises jurisdiction over applies to resource extraction utilization activities. Accordingly, the Act must undergo a legal scrub to ensure it is more clear on exploration v. utilization (and the use of “and” v. “or”).

The broader policy question is how much does a company have to do in terms of exploration or use of an asteroid, i.e. what operations does it need to undertake, in order to have it gain a superior right on a reasonable basis? Or to make things even more complicated what about moving the asteroid itself and how much movement woul Everyone agrees peering through a telescope at an asteroid should not be sufficient, but should an entity actually have to start extracting actual mineral in order to have a “reasonable basis” for asserting a superior right? Sagi mentioned he thought the line should be based on tele-presence, telemetry/tracking, and tele-robotics (including, for example, manipulation of soil and soil samples). Naturally, we should avoid any possibility of “paper” asteroid rights with trivial efforts. Of course, some of the line drawing can be left to agency interpretation and agency implementation and indeed it might be useful if Congress is not too specific in its line drawing given such lines might be drawn better after some actual practice takes place. Nevertheless, Congress should lay out more clear guidance that elaborates the policy choice. (And, of course, this does not address the additional question of what about moving the asteroid itself and how much movement would suffice to create a non-interference right? A reception discussion with Rand Simberg led to a possible standard of must just not move any distance but must move to a commercially or economically justifiable or beneficial place).

Improvements to Posey ASTEROID Act might also include specifically stating that resource extraction activity itself is consistent with international obligations (to remove any doubt or argument given the Act conditions a superior non-interference right on an activity being in accord with international law. Further, as discussed above, the granting of property rights in extracted resources should also be declared consistent with international space law. Sagi and Berin also noted in the discussion that the Act does not define the term asteroid.

4) Link to On-Orbit Jurisdiction Issue – There is debate over whether express on-orbit jurisdiction granted to FAA is necessary before the Executive Branch can act or whether it already has sufficient authority (in FAA payload safety reviews or on the basis of foreign policy or national security) to support immediate action (see above).  But if Congress expressly grants on-orbit authority should it go to FAA AST or another agency in US government?  First, one should realize that whatever agency it resides within, it will likely have to be a heavy inter-agency process in any event. Second, one needs to realize the US State Department may very well be keen on some express on-orbit authority being given to some US agency by Congress in order to ensure US compliance with OST Art. VI’s obligations to “authorize and continually supervise” US commercial space activities. Third, industry seems most keen on avoiding overly burdensome regulation, particularly early in the process. Sagi and Jim both warned that the government cannot regulate too quickly and should not be placing barriers to activities. Rather, government should be acting in a promotional role. Fourth, FAA AST has highlighted in testimony with respect to this issue that it plays both a regulatory role and a promotional role for the industry. That probably places FAA AST in a good position to garner the on-orbit authority if and when Congress expressly grants it to a US agency even if some in industry worry that FAA AST could in the long-term slide emphasis to regulation rather than promotion. Fifth, and finally, it will be key to ensure any on-orbit authority is “lite” and not “heavy,” ensuring US compliance with international supervision obligations but not stifling or hampering industry. (BTW, I disagree that “continually supervise”in the OST means 24/7/365 monitoring. The terms does not need to mean “unceasingly” but simply can mean “at regular intervals” but time and space here does not permit a full Vienna Convention on Law of Treaties Art. 31-32 analysis).

5) What is impact of 2003 Braibanti letter on US flexibility now with respect to property rights? [Note: “In a letter dated 15 Aug 03, Ralph L. Braibanti, the Director of Space and Advanced Technology in the Department of State�s Bureau of Oceans and International Environmental and Scientific Affairs, wrote, “We have reviewed the “Notice” dated February 13, 2003, that you sent to the U.S. Department of State. In the view of the Department, private ownership of an asteroid is precluded by Article II of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Accordingly, we have concluded that your claim is without legal basis.” See http://www.spacedaily.com/news/asteroid-03k.html ]

I would argue none at all. The context of that letter was a company OrbDev claiming an asteroid with no physical exploration or extraction or movement of the asteroid. OrbDev sent a bill to NASA for rent/parking and the Braibanti letter was in response to that unique context and situation.

 

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Property Rights in Space (Part I): When Talking Property Rights in Space, Limit References to the Moon Treaty Please

Looking forward to moderating a panel discussion at NewSpace 2014 tomorrow July 25th at 10:45AM  in San Jose, CA  on property rights in space and will be joined by Sagi Kfir (Corporate Counsel, Deep Space Industries), Jim Muncy (Co-Founder, Space Frontier Foundation), and Berin Szoka (President, Tech Freedom).  We will have an interesting discussion that will include Bigelow Aerospace’s payload safety review request, Rep. Posey’s ASTEROIDS Bill of 2014, and proposed Space Settlement Acts among other topics.  Will be following up with a blog post about the discussion tomorrow.  However, we will not be talking about the Moon Treaty (at least not very much).  For the United States (and many of the most active space nations), the Moon Treaty is legally irrelevant in virtually all respects.  First, under international treaty law (see Vienna Convention on Law of Treaties Art. 34), treaties only create rights and obligations for parties to the treaty.  The United States is not a party to the Moon Treaty and let’s be honest never will be (at least without major adjustments).  Indeed, the Moon Treaty only has 15 countries that have ratified it (i.e. become party to it) and an additional four countries that have signed but not yet ratified it.  No major space-faring nation is among the ratifying nations.  As a matter of treaty law, it does not bind the United States nor any other major space-faring nation.

Occasionally, one will hear arguments that certain rules of the Moon Treaty represent customary international law.  Indeed, multilateral treaties can be pointed to as one piece of evidence of state practice.  However, a state practice must be generalized and consistent among nations to even stand a chance of becoming customary international law and 15 nations support of a rule is not generalized.  Moreover, even if one wanted to continue to argue that certain rules in the Moon Treaty are customary international law because supported by other practice outside the Treaty itself, the United States would certainly be a persistent objector to any rules in the Moon Treaty that go beyond rules in the Outer Space Treaty (OST).  The United States government has made known its objection to the Moon Treaty since its inception.  Again, the Moon Treaty may be on the fringe part of space diplomacy and diplomatic arguments, but it simply is not in play in the legal arena as regards the United States and other major space-faring nations.  Thus, you will not be hearing much, if at all, about the Moon Treaty tomorrow.  Here is what we will be discussing:

1) Is it clear enough that resources extracted can be brought back to Earth  and utilized and sold and “owned” in that sense?  Or do you sense debate over even this?  In other words, should there be any controversy over that aspect/provision within Rep. Posey’s ASTEROIDS Act of 2014?

2) Would a non-interference principle be sufficient in terms of allowing protection of activities on-orbit or are greater property claims/rights needed? Compare, for example, Bigelow Aerospace’s payload safety review request (speaking in terms of operational zones that would be “organic”  or variable depending on activity) v. the Space Settlement Institute’s proposed Space Settlement Act’s provisions ( e.g. requiring government to recognize claims of private companies on Moon to upwards of 600,000 square miles (4%) if company permanently inhabits settlement with regular transportation)

3) Do you agree the ASTEROIDS Act of 2014 provision that grants a cause of action within domestic US federal courts to private entities whose non-interference rights are not respected?

4) What should the US (Congress) do to support property rights and non-interference principles?  Any particular legislation you support or provision you think would be most beneficial?

5) Is express on-orbit jurisdiction granted to FAA necessary before the Executive Branch can act or does sufficient authority (in FAA payload safety reviews or on the basis of foreign policy or national security) already exist to support immediate action?  What is impact of 2003 Braibanti letter on US flexibility now? What is your take on whether FAA or another agency in US government needs on-orbit jurisdiction?  And if so what should it look like? (Whatever agency it resides within, it will likely have to be a heavy inter-agency process in any event).

6) What is required of the US government to comply with the OST’s Art. VI obligation to “authorize and continually supervise” US commercial activities?  Specifically, what is meant by “continually” supervise?

7)  How do you think other countries will react to any US property rights or non-interference legislation?  Doesn’t Art. IX of the OST that already requires countries to give “due regard” to the interests of other nation’s space activities and requires advance consultations if a planned activity “would cause potentially harmful interference” with other nations’ space activities, justify adoption of a non-interference norm domestically? Does the”safety zone” established around the ISS provide a model? Is there a way to encourage or lead other countries to follow any US model adopted?

8) What level of certainty do companies (and, of course, it depends on the company and their capital structure) need on property rights in order to proceed with plans and to stimulate investment?

More tomorrow after our discussion!

(C) Copyright:  Matthew Schaefer.  All rights reserved.