Deep Ocean Policy: Is it too early?

     Balancing the need for policies before there is a clear need for policies is always a delicate argument. In some instances developing policies before an industry reaches maturity can  head off unintended damage to an ecosystem. On the other hand pushing to create policies where it is not clear that they are needed can be viewed as premature regulation. The current discussion is focused on the deep sea where, according to this article in Space Daily, "Technological advances have made the extraction of deep sea mineral and precious metal deposits feasible." The article quotes Cindy Lee Van Dover, director of the Duke University Marine Laboratory, "It is imperative to work with industry and governance bodies to put progressive environmental regulations in place before industry becomes established, instead of after the fact." The reasoning behind this argument is to get it right based on current science. If this logic were followed in the past would we have as much of an issue with space debris as we do now? As asteroid mining becomes more of a reality should we be formulating policies to address foreseeable issues? An example of creating policies for a young industry is the FAA creating a roadmap to integrate unamanned aircraft systems (UAS) into current airspace. On the other hand premature policy making could stifle innovation and prevent business from being carried out.  There is no one best course of action, but it is important to engage in open, objective dialogue.

Resources to explore policy and policy making:
Definition of policy: http://www.merriam-webster.com/dictionary/policy
Policy making cycle: http://www.ushistory.org/gov/11.asp

Zdenek J. Slouka, United Nations and the Deep Ocean: From Data to Norms, 1 Syracuse J. Int'l L. & Com. 62 (1972).

The Evolution of Natural Resources Law and Policy (Lawrence J. MacDonnell & Sarah F. Bates eds., Section of Environment, Energy, and Resources, American Bar Association, 2010).  

NASA Budget

This week NASA received $17.65 billion for fiscal year 2014. There is a video on NASA's website outlining the fiscal year 2014 proposal. In fiscal year 2013, NASA only received $16.9 billion. The House Appropriations Committee had approved a NASA budget of $16.6 billion for fiscal year 2014 while the Senate Appropriations Committee called for $18 billion. President Obama had asked for $17.7 billion. Th $17.65 billion should be applauded as a compromise that ended up in favor of NASA and the governments commitment to furthering the United State's interests in space exploration.

This spending bill gives NASA money for a mission to Mars, commercial space activities, and to explore Europa, one of Jupiter's many moons. The USA Today article explains how the budget deal preserves these many missions. According to Eric Berger of the Houston Chronicle this is a big win for the Europa mission, but the funds for the commercial activities fall short of what is actually needed to put a commercial crew in orbit by 2017. Jeff Foust provides reactions and an excellent summarization of the fiscal year 2014 NASA authorization bill at http://www.spacepolitics.com/.

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).
 

Asteroid Mining on the Move

     In April 2012 Planetary Resources announced an ambitious venture to mine asteroids. Followed by Deep Space Industries and Stott Space, the race to capture and mine an asteroid has kicked into gear. The rush to these celestial bodies is not necessarily for gold, but for platinum based metals that are used in renewable batteries. Metals used in manufacturing such as iron and nickel are also believed to be available. One question that comes up is how will the materials extracted from the asteroid be brought back to Earth? Another question is what effect will the influx of rare materials have on the market for those materials? An answer to the first question is that the materials do not have to be returned to Earth. Processing and manufacturing can take place in space. Using these materials to build new space vehicles can reduce the cost of space exploration as one of the largest costs is the fuel needed to leave Earth. As for the question regarding the effect on the market, well we can leave that to the economists and the invisisble hand for now. For a discussion of some of the legal issues surrounding asteroid mining see the previous post on the legal issues on mining the moon. Below is a collection of links from around the web to offer a snapshot of where the asteroid mining industry is and where it is headed.

Planetary Resources: http://www.planetaryresources.com/

Deep Space Industries: http://deepspaceindustries.com/

Stott Space: http://stottspace.com/

Goals of Stott Space: http://www.spacedaily.com/reports/Stott_Space_Aims_to_Mine_Asteroids_this_Decade_999.html

NASA receives funding to capture and asteroid:
http://www.space.com/20538-nasa-asteroid-capture-funding.html

Senator Bill Nelson (D, FL) and others back NASA plan to capture an asteroid: http://www.newspacewatch.com/articles/sen-bill-nelson-says-nasa-will-initiate-asteroid-capture-project.html

Planetary Resources view of NASA's asteroid plan:
http://www.planetaryresources.com/2013/04/nasa-wants-to-bag-an-asteroid/

First an asteroid, and then Mars:
http://cosmiclog.nbcnews.com/_news/2013/04/06/17630481-administration-confirms-nasa-plan-grab-an-asteroid-then-focus-on-mars?lite

Commentary on NASA's plan: http://www.spacedaily.com/reports/More_Treasures_from_Asteroids_999.html

Keck Institute for Space Studies: Asteroid Return Mission Study: http://www.kiss.caltech.edu/study/asteroid/

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.

Sex in Space

     Now that the title of this post has your attention, what this post is actually going to discuss are the rights to reproduce in space. Seems like it this would be a no brainer. So much of a no brainer that a special suit has been developed to facilitate the "process." In a recent op-ed Laura Woodmansee, author of the book Sex in Space, questioned the ethics of reproduction in an environment where gravity, or lack of, affects the formation of cells. A study at the University of Montreal found that "intracellular traffic flow is compromised under hyper-gravity conditions and that both hyper and microgravity affect the precisely coordinated construction of the cellular envelope in the growing cell." What this means is that when the sperm and egg meet the new life will not grow as it does under Earth's gravity. Does the knowledge that a fetus will be malformed if conceived in space create an ethical obligation to not conceive in outer space? Who is going to prevent people from attempting? Can the government prohibit this private, recreational act? These are all good questions and as in most legal questions the answer depends.
     One can begin by looking at how the U.S. Supreme Court has defined the right to procreate within the Constitution. In the case of Skinner v. Oklahoma, 316 U.S. 535 (1942), a case involving the sterilization of criminals, the Court considered marriage and procreation fundamental to the survival of humans. By classifying procreation as a fundamental right any governmental attempt to prohibit that right has to meet the highest level of scrutiny.
     In Griswold v Connecticut, 381 U.S. 479 (1965) the Supreme Court found a state law prohibiting the use and distribuion of contraceptives unconstitutional. Justice Douglas discussed a right to privacy implicitly found in the Bill of Rights, more specifically the First, Third, Fourth, and Fifth Amendments. Douglas said it would be "repulsive if police were allowed to search the sacred precincts of the marital bedroom for signs of the use of contraceptives."
     Expanding on Griswold, Justice Brennan wrote in Eisenstadt v. Baird, 405 U.S. 438 (1972) "if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
     The issue of contraceptives came up again in Carey v. Population Services International, 431 U.S. 678 (1977).  This time the issue was whether or not the government could limit the sale and distribution of contraceptives to minors under the age of 16 by licensed pharmacists. The Court found that limiting the distribution of contraceptives to minors by licensed pharmacists placed an undue restriction on the access to birth control and infringed on the right to control procreation.
     In 2003 the Supreme Court ruled in Lawrence v. Texas, 539 U.S. 558 (2003) that a state law prohibiting sodomy between persons of the same sex violated the due process clause of the Fourteenth Amendment because it did not further a legitimate government interest that would justify a severe intrusion into an area of personal privacy. In other words, private consensual sexual activity between consenting adults may not be prohibited.
     This handful of cases is by no means a comprehensive look at the jurisprudence that makes up the rights  to privacy, but they do lead to a conclusion that there is a fundamental right for people to engage in private consensual sexual activity and that the government would need to show a legitimate purpose that furthers a government interest in order to uphold any prohibition on this right. It seems unlikely that the government will be able to stop people from engaging in the procreation arts.
     There was a quote by Jeff Glodblum's character Dr. Ian Malcolm in the movie Jurassic Park, (1993) in regards to cloning dinosaurs that seems like it may provide some insight to this situation: "scientists were so preoccupied with whether or not they could that they didn't stop to think if they should." With upcoming ventures to Mars such as the 2 person, 501 day mission around the red planet Inspiration Mars, and the Dutch startup Mars One which plans to colonize Mars via financing through reality TV, there will certainly be opportunities where people can engage in the reproductive arts. The answer to the question of whether or not they should, with current scientific knowledge, is going to be a judgement call that will be made, hopefully, after weighing all of the scientific, sociological, and psychological pros and cons.