Spotlight: International Space Exploration Coordination Group (ISECG)

Mars Daily recently reported that a consrotium of space agencies released a blueprint for future space exploration with the goal of sending humans deeper into space. The consortium of agencies is known as the International Space Exploration Coordination Group (ISECG). The ISECG was established as a result of a document entitled The Global Exploration Strategy: The Framework for Coordination. A finding of the document is:
     "the need to establish a voluntary, non-binding international coordination mechanism through which individual agencies may exchange information regarding their interests, plans and activities in space exploration, and to work together on means of strengthening both individual exploration programs as well as the collective effort."

Since November 2007 the following fourteen (14) Space Agencies have participated and contributed to the ISECG:
     ASI (Italy), BNSC (United Kingdom), CNES (France), CNSA (China), CSA (Canada), CSIRO(Australia), DLR (Germany), ESA (European Space Agency), ISRO (India), JAXA (Japan), KARI(Republic of Korea), NASA (United States of America), NSAU (Ukraine), Roscosmos (Russia).

In 2011 the ISECG established a Global Roadmap for a long range exploration strategy that charts a way to expand human presence in the solar system. The Roadmap begins with the International Space Station (ISS) and has an overall goal of human missions to Mars. The report which was updated in August 2013 can be downloaded from the ISECG website. 

According to the Mars Daily article the ISECG stated, "Human exploration of the moon, asteroids and Mars will strengthen humanity's future, bringing nations together in a common cause, revealing new knowledge, inspiring people, and stimulating innovation."

It is welcoming to note that the above quote and mission of the ISECG are in harmony with the Article I of the Outer Space Treaty:
     

"The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation."

As long as organizations and agencies work within the heart of the International Treaties while communicating and sharing findings it will be fantastic to watch how space exploration rapidly develops over the next couple of decades.

Exploring The Liability Convention

     In outer space objects from time to time will bump into each other and/or fall back to Earth causing damage to some other object. When the property of entity 1 is damaged by the property of entity 2, it is expected that one of the entities would be liable. The treaty known popularly as the Liability Convention outlines when a launching state is laible for damages caused by a space object. The full text of this treaty can be found  on the website for the United Nations Office for Outer Space Affairs.

The Convention on International Liability for Damage Caused by Space Objects (the "Liability Convention"), adopted by the General Assembly in its resolution 2777 (XXVI), opened for signature on 29 March 1972, entered into force on 1 September 1972.

The Liability Convention is one of the off shoots of the Outer Space Treaty:
The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the "Outer Space Treaty"), adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967.

     As more and more entities are placing objects in outer space the Liability Convention is becoming more popular, especially in the area of outer space environmental concerns. These environmental concerns will be discussed in a future blog post as the focus of this post is just to introduce the Liability Convention.

     Rather than recreate the wheel and annotate the whole treaty, the following article by Michael Listner provides a good breakdown of the various provisions of the Liability Convention along with situations in which the Convention was invoked.
Michael Listner, Examining Space Law and Policy Part 3: the Liability Convention of 1972, Examiner.com, March 27, 2011, http://www.examiner.com/article/examining-space-law-and-policy-part-3-the-liability-convention-of-1972.

For the academics out there, the following law review articles offer more in-depth research and analysis on the Liability Convention. If you do not have access to these law journals contact your closest librarian for assistance: 
 

Michael Smirnoff, The Problem of Security in Outer Space in Light of the Recently Adopted International Convention on Liability in Outer Space, 1 J. Space L. 125 (1973).

 

Herbert Reis, Some Reflections on the Liability Convention for Outer Space,
6 J. Space L. 125 (1978).

Susan Trepczynski, The Effect of the Liability Convention on National Space Legislation,
33 J. Space L. 221 (2007). 
 

Kendra Webb, To Infinity and Beyond: The Adequacy of Current Space Law to Cover Torts Committed in Outer Space, 16 Tul. J. Int'l & Comp. L. 295 (2007-2008).
 

Book Review: Legal Aspects of Satellite Remote Sensing

     Remote sensing is the collection of data by detecting electromagnetic waves reflected from Earth. In the Legal Aspects of Satellite Remote Sensing, ISBN: 9789004190320, author Atsuyo Ito uses the definiton of remote sensing as the "science of extracting information from an object through the analysis of data acquired by a sensor that is not in direct contact with that area." In other words, a satellite orbitting high above the Earth's surface can form images of the surface, such as forests and volcanoes, without having to be near the volcano. This sensing technology allows for the gathering of information in understanding and addressing environmental issues and disasters. Ito does a thorough job of introducing satellite remote sensing, the legal regime around satellite remote sensing, its applications, and possible improvements.
     There are seven chapters divided into two parts. Part one is labled Clarification of the Current Regime and encompasses chapters 1-4 which introduce remote sensing, provides and overview of space law. Chapter 3 covers environmental law and how it is supported by remote sensing, and chapter 4 looks at disaster management and remote sensing applications. Part two is labled Improvements to the Current Framework and covers chapters 5-7. Chapter 5 discusses data policy and verification of accuracy and authenticity, chapter 6 covers liability, and chapter 7 reviews the key issues discussed in the book and offers recommendations for realizing the full benefits of remote sensing.
    After the main text there are 2 annexes. The first is the text of the Principles Relating to Remote Sensing of the Earth from Outer Space (U.N. Remote Sensing Principles), and the second is the text of the Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in the Event of Natural or Technological Disasters (Disaster Charter). Following the annexes is a list of documents, and case law. Both lists are chronological and begin with international materials and then national materials arranged alphabetically by country. There is also a well organized bibliography and an index.
     Overall, Ito provides a compelling look at the current legal make-up of satellite remote sensing that is well researched and thorough. Her recommendations advocate for uniform policies that provide access and data sharing to benefit the greater public good.

Antarctica and Outer Space

 

What does Antarctica have to do with space law? The Soviet Union launched the first artificial satellite, Sputnik 1 into orbit on October 4, 1957. This was not only the entrance of mankind into outer space; it was also the event that triggered the emergence of Space Law. Coincidentally the Antarctic Treaty was signed on December 1, 1959 by the twelve countries whose scientists had been active in and around Antarctica during the International Geophysical Year (IGY) of 1957-58.

           The Antarctic Treaty System (signed into force in 1961) states as its primary purpose to ensure “in the interests of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord.”

Other Provisions of the Treaty state:

Antarctica shall be used for peaceful purposes only (Art. I).

Freedom of scientific investigation in Antarctica and cooperation toward that end … shall continue (Art. II).

 Scientific observations and results from Antarctica shall be exchanged and made freely available (Art. III).

If these provisions seem familiar that is becuase they are very similar to the Outer Space Treaty which believes, "that the exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development."

The exploration and use of outer space...be carried out for the benefit and in the interests of all countries… and shall be the province of all mankind (Art. I)

There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation (Art. I).

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 (Art. II).

States Parties to the Treaty shall carry on activities in the exploration and use of outer space… in the interest of… promoting international cooperation and understanding (Art. III).

Antarctica, like outer space is considered to be an extreme and remote environment. So much so that the Mars Society, is conducting a 2,000 mile trans-Antarctic expedition "to test how extreme and remote environments affect human physiology, providing important insight into the challenge of sending humans to the Red Planet." The two year mission will focus on a variety of analog research, including:

Prolonged periods of complete isolation (7-9 months in duration)

Experiencing altered day-night cycles (including 3-4 months of complete darkness)
Exposure to extreme cold and weather (in the coldest desert with extremely low humidity)
Encountering chronic hypobaric hypoxia (including altitudes of up to 3,200 meters)

Antarctica and outer space are similar on a number of levels whether it is between the treaties that define the parameters of their use or the "extreme and remote" conditions. The other similarity is that both Antarctica and outer space are sovereignless. This was discussed in the following case regarding the Federal Tort Claims Act (FTCA):

Smith v U.S. 507 US 197 (1993)

In Smith, the court was asked to decide if the U.S. can be held liable under the Federal Tort Claims Act (FTCA) for a wrongful death that occurred in Antarctica. The court held that the ordinary meaning of foreign country included Antarctica even though it had no recognized government. If Antarctica was not a foreign country then the plaintiff would have limited legal options because the court would have to look to the laws of Antarctica which has no law to determine the liability of the U.S. The Court points out that legislation of the U.S. is meant to apply only within the territorial jurisdiction of the U.S. unless there is contrary congressional intent.

Justice Stevens acknowledged Antarctica's similarity to outer space in his dissent:

"The negligence that is alleged in this case will surely have its parallels in outer space as our astronauts continue their explorations of ungoverned regions far beyond the jurisdictional boundaries that were familiar to the Congress that enacted the Federal Tort Claims Act (FTCA) in 1946."

    
     Antarctica, like outer space, is sovereignless, remote, and of scientific and military interest. The biggest differenc is when you slip in Antarctica you fall. When you slip in outer space you float.

Book Review: Law and Regulation of Commercial Mining of Minerals in Outer Space

     Law and Regulation of Commercial Mining of Minerals in Outer Space by Ricky Lee is the seventh volume in the Springer Space Regulations Library. ISBN: 9789400720381. Lee lays out a strong background and a detailed overview of the current state of space law to form his proposal for creating a regulatory framework for mining in outer space. The book is organized into 7 chapters, references, and an index. After the detailed table of contents are lists of abbreviations, list of figures, list of tables, glossary, and a list of reports, series, and journal titles.

     Chapter 1 provides the historical background for space exploration, the hypothesis of the book, and lays out a broad overview of the other chapters. There is a graphical representation of the flow of the chapters on page 3. This is the first of many charts and graphs throughout the book which add detail and allows the reader to obtain a thorough grasp of the technical material. Chpater 2 discusses the economic and technical prospects of space mining. One part of the chapter of particular interest is the discussion of the various classes of asteroids and their geologic make-up. Chapter 3 reviews the exisiting international space law. Chapter 4 explores how commercial uses of outer space coincide with provisions of the international treaties with discussions on commercial versus public use and the prohibition on property rights. Chpater 5 describes the policy impasses of the "province of all manking" and "common heritage of mankind" principles and the need for a new legal framework. Chpater 6 is the key chapter to the book's namesake. This is the chapter where Lee proposes resolutions to balance regulation and free market in the creation of an international regulatory authority without violating or recreating the international treaties. Chapter 7 briefly discusses the assumptions that must be satisfied in order for the hypothesis to be proven.

     Along with the footnotes in each chapter the researcher will also find the organization of the references section highly useful. This section is broken down into treaties, United Nations documents, international cases, domestic (by country) legislation and regulations, domestic cases, and secondary sources. Overall the book is detailed, thorough and a very interesting read for the space law and asteroid mining enthusiast.

FAA Regulation of Commercial Space Transportation

     Commercial space transportation has the ability to  jeopardize public health and safety, property, U.S. national security, foreign policy interests, and international obligations of the United States. Fortunately we have the Federal Aviation Administration (FAA) to issue licenses and permits. These licenses and permits are issued through the Office of Commercial Space Transportation (AST) for launch or reentry vehicles, launch sites (spaceports), experimental permits for reusable suborbital rockets, and safety approvals. Here are the resources that explain where the FAA's authority comes from. As with most space law issues the beginning lies with the International Treaty System.

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the "Outer Space Treaty"), adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967;

 

States Parties to the Treaty shall bear international responsibility for national activities in outer space…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… shall require authorization and continuing supervision by the appropriate State Party to the Treaty. (Art. VI).

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and personnel, while in outer space or on a  celestial body. Ownership of objects … is not affected by their presence in outer space or on a celestial body or by their return to the Earth. (Art. VIII).

The above parts of the Outer Space Treaty were the precursor for the Registration Convention which further outlines the responsibility of nations who send objects and people into space.

The Convention on Registration of Objects Launched into Outer Space (the "Registration Convention"), adopted by the General Assembly in its resolution 3235 (XXIX), opened for signature on 14 January 1975, entered into force on 15 September 1976;

    This treaty was developed to provide for the national registration of objects launched into outer space, establish a central register of objects launched into outer space, and provide additional means and procedures to assist in the identification of space objects.

[T]he launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry. (Art. II).

 

The contents of each registry and the conditions under which it is maintained shall be determined by the State of registry concerned. (Art. II)

     In 1984 the U.S. Congress passed the Commercial Space Launch Act, Pub. L. No. 98-575, 98 Stat. 3055 (1984).  This Act and its amendments were codified in Title 49 of the U.S. Code. Then in December 2010 Congress consolidated all U.S. space laws into the new Title 51 National and Commercial Space Programs, Pub. L. No. 111-314, 124 Stat. 3328 (2010). The Commercial Space Launch Act is now codified in chapter 509 of title 51. This is where the Department of Transportation is designated to regulate the commercial launch industry. The Office of Commercial Space Transportation (AST) was transferred to the Federal Aviation Administration (FAA) in 1995.
     The regulations based on the Commercial Space Launch Act are codified in the Code of Federal Regulations (CFR) in Title 14, chapter 3 (14 C.F.R. § 400.1 (2012)). Here is a list of where to find the various regulations within Title 14:

Part 413-LICENSE APPLICATION PROCEDURES

Part 414-SAFETY APPROVALS
Part 415-LAUNCH LICENSE
Part 417-LAUNCH SAFETY
Part 420-LICENSE TO OPERATE A LAUNCH SITE
Part 431-LAUNCH AND REENTRY OF A REUSABLE LAUNCH VEHICLE (RLV)
Part 433-LICENSE TO OPERATE A REENTRY SITE
Part 435-REENTRY OF A REENTRY VEHICLE OTHER THAN A REUSABLE LAUNCH  
              VEHICLE (RLV)
Part 437-EXPERIMENTAL PERMITS
Part 440-FINANCIAL RESPONSIBILITY
Part 460-HUMAN SPACE FLIGHT REQUIREMENTS

It appears that the FAA's jurisdiction is over the launch and reentry of space vehicles and not over activities once in orbit.

Is Mining the Moon Legal?

     Google recently announced that they will award $20 million to the "first privately-funded company to land a robot on the moon and explore the surface by moving at least 500 meters and send high definition video back to Earth by 2015." There is a question of the legality of a private enterprise mining the moon. Whether the answer is yes it is legal, or no it is not legal is open to interpretation. Here are the sources that one would look to in order to formulate the argument:

Outer Space Treaty (OST): Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signatureJan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967).

     Article I of the OST provides that the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries… and shall be the province of all mankind, free for exploration and use by all States who shall be free to access all areas of celestial bodies. Article II prohibits any national appropriation of outer space and other celestial bodies by claim of sovereignty, by means of use or occupation, or by any other means. These clauses do not forbid the exploitation of natural resources it is only prohibiting any one nation from claiming ownership of any celestial body.

    Article VI sets out the responsibilities of the States parties to the treaty:

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. When activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.

     Article VIII gives States jurisdiction and control over objects and personnel launched into space and retains jurisdiction while in outer space when the object and personnel are launched from that state. (emphasis added).

Moon Agreement: The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature Dec. 18, 1979, 1363 U.N.T.S. 22 (entered into force July 11, 1984)

     The Moon Agreement is largely thougth to be a failure. None of the major space fairing nations at the time signed this treaty. However more of the signatories to the Moon Agreement are becoming space fairing nations and it could possibly hold more weight as part of the International Treaty System. Article I, paragraph 1 of the Moon Treaty states that it applies not only to the moon, but also “to other celestial bodies within the solar system, other than the earth.” “The exploration and use of the moon shall be the province of all mankind (as in the OST) and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Article 11 paragraph 1 calls the moon and its natural resources the common heritage of mankind.”The “common heritage of mankind” notion was embraced by developing nations and interpreted as a principle that “celestial body resources are the common property of all the nations” and requires an international regime for the redistribution of wealth and technology among nations. It was these economic provisions of the Moon Treaty, rather than the demilitarization provisions in Article 3, that sparked controversy and are considered unfavorable to private enterprise.

      There are two (2) exceptions to the prohibition on the exploitation of natural resources in outer space: The first exception is if specific legal norms enter into force with respect to any of these celestial bodies. The second exception is if “an appropriate international regime is created to govern the exploitation of the natural resources."

Court cases:

Smith v U.S. 507 US 197 (1993)

     In Smith, the court was asked to decide if the U.S. can be held liable under the Federal Tort Claims Act (FTCA) for a wrongful death that occurred in Antarctica. The court held that the ordinary meaning of foreign country included Antarctica even though it had no recognized government. If Antarctica was not a foreign country then the plaintiff would have limited legal options because the court would have to look to the laws of Antarctica which has no law to determine the liability of the U.S. The Court points out that legislation of the U.S. is meant to apply only within the territorial jurisdiction of the U.S. unless there is contrary congressional intent.

Nemitz v. U.S. 2004 WL 3167042 (D. Nev. April 26, 2004) Not Reported in F.Supp.2d

     NASA landed a robotic spaceship on Asteroid 433 "Eros" in 2001. Gregory W. Nemitz informed the space agency that he owned Eros, as he previously filed his claim to ownership of Eros at an online registry for celestial land claims, which a Seton Hall University School of Law professor started in the 1990s to stir discussion of space-related legal issues. The case was dismissed on the grounds that the U.S. Constitution does not recognize a cause of action for denial of property rights in outer space.

A number of law review articles have also been written on this topic. Here are a few worth looking into:

Ezra J Reinstein, Owning Outer Space, 20 Nw. J. Int'l L. & Bus. 59 (1999).

Jeremy L. Zell, Note, Putting A Mine On The Moon: Creating An International Authority To Regulate Mining Rights in Outer Space, 15 Minn. J. Int'l L. 489 (2006).

P.J. Blount, Jurisdiction in Outer Space: Challenges of Private Individuals in Space,

33 J. Space L. 299 (2007)

Timothy G. Nelson, The Moon Agreement and Private Enterprise: Lessons from Investment Law, 17 ILSA J. Intl & Comp L. 393 (2010).

Blake Gilson, Defending Your Clients Property Rights in Space: A Practical Guide for the Lunar Litigator, 80 Fordham L. Rev. 1367 (2011).

   Space law is still new and developing. Even though mining laws and property rights have been around for quite some time, it may take a while to iron out all of the details for the province of all mankind.