National Center for Remote Sensing, Air and Space LawThe University of Mississippi School of Law

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Some Legal Reflections on Commercial Orbital Activities

Prof. Joanne Irene GabrynowiczCommercial Space Transportation

Advisory Committee Public MeetingWashington, DC

May 15, 2013

National Center for Remote Sensing, Air and Space LawInformational resources on the legal aspects of human activities using aerospace technologies

The University of Mississippi School of Law

National Center for Remote Sensing, Air and Space LawThe University of Mississippi School of Law

What is Certain

• The U.S. can not appropriate open space and celestial bodies

• Private entities can not appropriate on behalf of the U.S.– Appropriation by “any other means”

• U.S. national law must conform to U.S. treaty obligations

• U.S. is legally “responsible” for non-government entities

National Center for Remote Sensing, Air and Space LawThe University of Mississippi School of Law

What is Uncertain

• Status of property rights in space• Outer Space Treaty is silent

– Neither prohibits nor allows– Relevant State Department cable:

• Don’t raise commercial use of the Moon and pray the Soviets are smart enough not to raise it either

• Moon Treaty – Weak and unclear– Issue: how/when/if unappropriated territory becomes

resources• Legal literature

– Divided– Political

• No clarifying U.S. or international court decisions– Nemitz

National Center for Remote Sensing, Air and Space LawThe University of Mississippi School of Law

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Nemitz v. United States30 J. Space L. 297 (2004)

• Asteroid 433, Eros– NASA’s NEAR Shoemaker landed Feb. 12, 2001

• Plaintiff claimed– “ownership” based on Nemitz’ “registration”– NASA infringed his “property rights” – Sought compensation for “parking” and “storage”

fees and special damages• Sought declaratory judgment for 5 causes of

action– Dismissed by District Court– Lost on appeal– Pro se case

National Center for Remote Sensing, Air and Space LawThe University of Mississippi School of Law

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Nemitz v. United States30 J. Space L. 297 (2004)

• Plaintiff/Appellant did not present a claim for which the District Court may provide relief– Some very technical, legally

• Not raised:– Whether OST Art. II and VI prohibits

ownership of lunar and celestial property by natural persons, corporations, and NGOs• Clear: can’t “appropriate” on behalf of State• Unclear: could some sort of property right be

acquired or private activities engaged in

National Center for Remote Sensing, Air and Space LawThe University of Mississippi School of Law

What is Likely

• Interest catalyzed in dormant Moon Treaty if an imminent landing appears credible– “Imminent” has different meanings at

international law• Spacefaring nations will want to have

consensus response• Politics - as much as or more than - law

will be determinative

National Center for Remote Sensing, Air and Space LawThe University of Mississippi School of Law

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Congressional Mandate: Issues and Options

• Grant regulatory authority to an administrative body– Which one?– Extent of jurisdiction?

• Promulgate specific new laws regulating nongovernmental entities– Complex problems

• Extraterritorial jurisdiction– e.g., ITAR, maritime salvage, money laundering

• Compliance?• Economic and political implications

National Center for Remote Sensing, Air and Space LawThe University of Mississippi School of Law

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Licenses as Gateways:Consider Space Advertising

• Advertising, per se, is regulated through launch law

• Law prohibits issuing or transferring launch license for payload containing “obtrusive space advertising”

• Allows nonobtrusive commercial space advertising, including advertising on—– commercial space transportation vehicles;– space infrastructure payloads;– space launch facilities; and– launch support facilities.

National Center for Remote Sensing, Air and Space LawThe University of Mississippi School of Law

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Enlightened Self-Interest

Law Politics

A Model For Your Consideration

National Center for Remote Sensing, Air and Space LawThe University of Mississippi School of Law

Legislation Considerations: Language that Recognizes

• US international obligations– e.g. commercial remote sensing regulations

and Outer Space Treaty and UN Principles• It is the US national interest to regulate

these activities and why• US values and priorities

National Center for Remote Sensing, Air and Space LawThe University of Mississippi School of Law

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Conclusion• U.S. is State-Party to Outer Space Treaty

– Art. VI requires U.S. to “supervise and control”• On orbit commercial activities will be supervised and controlled

– How?– National law must conform to international obligations

• U.S. law implements and defines Art. VI and other obligations at national level– DoT launch licenses implements Art. VI– DoC commercial remote sensing satellite operations licenses

implement Art. VI and “nondiscriminatory access” of U.N. Principles

• Legal mechanisms develop as technology develops and matures

• Launch license can be gateway to related activities– E.g., advertising

• Will not know legal requirements until necessity forces response– Credible private, commercial activity

National Center for Remote Sensing, Air and Space LawThe University of Mississippi School of Law

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Conclusion

• Opportunity to influence through U.S. law, principles, and values– Law of other nations

• U.S. space law is de facto model• National space laws fastest growing part of space law

– Uniform definitions• “Suborbital rocket”

– Hybrid in US law but “aircraft” in foreign law?• “Debris mitigation”

– Impermissible “salvage” in foreign law?

• Opportunity to choose best legal tools– Indemnification, e.g.

• Important to U.S. but not necessarily relevant to other States

National Center for Remote Sensing, Air and Space LawThe University of Mississippi School of Law

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Thank you.Questions, Comments?