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.