While there were actually several presentations on Saturday other than the Space Law and Property Rights panel, most of those have been better covered by Clark Lindsey over on Hobbyspace (scroll down to Day 3). So, I’ll mostly focus on that last panel. This panel was chaired by Berin Szoka, a recent law graduate. Berin formally announced the Institute for Space Law and Policy (ISLAP), and one of its projects, Grokspace. According to Berin, Rick Tumlinson of the Space Frontier Foundation was the brainchild behind the idea, and Berin was they were able to find to run with the idea. The goal of ISLAP as Berin explained it was to provide a credible source of “pro-frontier” legal analysis in order to help the industry. In order to do this, ISLAP is working to build a network of legal experts to try and propose realistic solutions to some of the legal issues that stand in the way of the development of space.
As one of the panel members said the night before at dinner, “he hadn’t met a single engineer who didn’t think he could have graduated top of his class at Harvard Law, had he only been interested”. Unfortunately, the legal opinions of us engineers are often uninformed, biased, and the sort of thing that make real legal experts just cringe (or worse start drooling in delight as they ponder the liabilities you’re opening yourself up to). When Berin was asked about what we could do to help, he gave two suggestions. First off, their first major policy issue that they’re working on is ITAR reform. He requested specific examples of horror stories people had faced due to ITAR, and also he requested ideas for specific suggestions on how to resolve those problems. Second, the other thing ISLAP needs is some seed capital to get things going. This is a fairly important institution, and I think that as space enthusiasts, and members of the commercial space community, it would be in our interests to try and help Berin and his associates succeed.
Anyhow, the panel on space property rights that Berin chaired was done in a rather unusual fashion, kind of like a talk show. Berin had a few prepared questions, and he would ask them to different panel members, while this was going on, he also had conference attendees write their own questions and pass them up. He then tried to incorporate the best of the questions into the remaining time. The panel members were Wayne White, Jim Dunstan, and Rosanna Sattler.
Seeing as how this was the most complicated of the panels, and also the one I’m least familiar with, I really probably should have written this up first. I’ll try to briefly summarize the key ideas I came away with, and I’m also having Berin look over this when he gets some time to see if I missed anything (or misstated anything) important. [Note: after having Berin look this over, he caught a few mistakes that have now been fixed]
One of the first things discussed were the various forms of property in space. As I think Jim pointed out, the status of property rights for each of these types of property are different. Some are actually quite secure, while others are more iffy and uncertain. These include, but probably aren’t limited to:
- Real Estate–actual pieces of land
- Things launched into space–satellites, space stations, tugs, etc
- Objects created in space–from microgravity processing for instance
- Orbital slots for various satellites and communication frequencies
- Raw materials extracted in space
The next question was what are the various sources of space law. The list as I remember included:
- Customary Law–law established through previous cases and actions by various entities that have been upheld.
- International Treaties–such as the Outer Space Treaty
- Multilateral Agreements–such as the International Telecommunications Union
- Laws made in specific countries–such as the Space Launch Act, the Deep Seabed Mining Act, etc
Some of the International Treaties that have some impact are the previously mentioned OST, libability conventions, convention for rescue and recovery of astronauts, launch registration conventions, and the Moon Treaty.
A good deal of discussion about the Outer Space Treaty followed. It was noted as several people have discussed in the past, that the OST prohibits the excercise of territorial sovereignty by signatory nations. However, they also pointed out some good parts of the OST, such as the fact that it requires that space be free for use on a non-interference basis. It also establishes the fact that if an entity launches something, it is still theirs. They also mentioned the “common heritage” bit.
Another interesting thing brought up was that the US and USSR have now established a solid customary legal precedent that materials extracted in space are owned by the extractor, and not “commons”. Both countries have extracted dozens or hundreds of kilograms of Moon rocks, and nobody has ever disputed their claim to those rocks.
The basic feeling of most of the experts on the panel was that there is already some good precedent and law protecting most of the key property rights needed for space development. As Jim Dunston brought up, if there were sufficiently compelling economic reasons for space utilization, where the financial and technological risks were well enough reduced that only the political risks remained, the political risks would be pretty easily overcome. He gave the example of oil extraction in the Alaska wilderness. There were many legal obstacles to that too, but since the economic case was solid enough otherwise, the legal obstacles were eventually overcome. He doesn’t believe that confusion about property rights is really what is holding back lunar business, he believes that lack of solid and realistic business plans is.
That said, some of the panelists still had some near-term suggestions to help resolve some of the ambiguities. They mentioned the idea of targetted statutes in various space interested countries, as well as multilateral agreements between spacefaring nations. They gave the example of how the harvesting of ocean resources was initially in limbo for a while, but through the use first of targetted statutes in the US (The Deep Seabed Mining Act), then various multilateral agreements with other countries, a workable structure was established. As mentioned previously, the International Telecommunications Union is an example of such a multilateral agreement.
Long term though, the panel was fairly unanimous that if off-world settlement is really technologically and economically feasible, the long-term solution is for the formation of sovereign entities offworld. Ie, something akin to the American Revolution, but hopefully in a more peaceful manner, where the offworld settlement declares independence, establishes sovereignty, and then recognizes formally the real estate property rights that were already recognized informally under the previous structure. It was mentioned that the prohibition on excercise of territorial sovereignty was actually a good thing in this regards, as it would make it easier for an off-world entity to declare sovereignty if there isn’t anyone already excercising sovereignty over their territory.
Anyhow, it was a fascinating discussion, and I probably haven’t done it justice. I have to say though, that what was said made me a lot more optimistic about us being able to resolve satisfactorily the questions of property rights and other policy issues in space. Over on Grokspace and ISLAP they are planning on putting together forums to help discuss some of these topics further. Definitely worth following more in the future.
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