Space Law 3 Quiz
So . . . why does the international legal regime encourage the development of national space laws?
"A [S]tate that does not have general national legislation may well find that its nationals have engaged in unreasonably risky activities, and thereby subjected it [i.e. the State] to an unexpected liability for damages caused by them [i.e. the nationals or private entities]."
Key with Article IV
"authorization and continuing supervision"
Liability Convention- launching state
(i) A State which launches or procures the launching of a space object; (ii) A State from whose territory or facility a space object is launched;
Commercial Space Launch Competitiveness Act of 2015: Title II: Commercial Remote Sensing
- Inserted requirements for annual reports re: remote sensing applications/licenses, and requirement that Secretary of Commerce submit a report within 1yr of passage of the Commercial Space Launch Competitiveness Act re: necessary statutory updates for licensing remote sensing systems.
Commercial Space Launch Competitiveness Act of 2015: Title III: Office of Space Commerce
- Renames the "Office of Space Commercialization" to "Office of Space Commerce" and details the functions of the newly renamed office.
Commercial Space Launch Competitiveness Act of 2015: Title I: Spurring Private Aerospace Competitiveness and Entrepreneurship
- Sec. 102: Mandated the Department of Transportation recalculate the "maximum probable loss" for liability purposes - Secs. 103, 106, 107: Added space flight participants to the list of those involved in indemnification and cross-waivers with the launch organizer. Also mandated exclusive Federal jurisdiction for a claim by 3rd party or flight participant. - Sec. 112: Recognizes the need to fly NASA "government astronauts" on private, commercial launch vehicles. Also defines the term "government astronauts" among other things. - Sec. 114: Provisions related to operation of ISS, specifically mandating continued operation through 2024.
U.S. Natl Commercial Space Law/Commercial Space Launch Act Purposes
1. promote economic growth and entrepreneurial activity. Peaceful purposes 2. encourage commercial space 3. to designate an executive department to oversee and coordinate the conduct of commercial launch operations, to issue and transfer commercial launch licenses authorizing such activities,
Limited Commercial/Private Liability
Con: higher liability on US govt; more regulation Pro: commercial and govt more involved. more innovation
Space Policy Directive-2: Streamlining Regulations on Commercial Use of Space :Sec. 2. Launch and Re-entry Licensing
Consistent with the policy set forth in section 1 of this memorandum, the Secretary of Transportation shall consider the following: (i) requiring a single license for all types of commercial space flight launch and re-entry operations; and (ii) replacing prescriptive requirements in the commercial space flight launch and re-entry licensing process with performance-based criteria.
Commercial Space Launch Competitiveness Act of 2015: Obama
Developed to stimulate / reinvigorate the US commercial space industry. Act is a reaffirmation of Congress's "commitment to enhancing and enabling the development of the commercial space launch industry." Addresses a number of different topics, but is most famous / infamous for its interpretation concerning the legality of outer space resource extraction.
Results of SPD-2 on Licensing / Commercial Regulation
In April 2019, FAA issued a 150-page notice of proposed rule-making in response to SPD-2, which sought to implement the streamlining requirements of the Directive. Subject to comment and review by industry prior to approval. Ultimately, rules were approved and, in September 2020, FAA submitted a 785-page final rule for publication in the Federal Register that significantly amends the 14 CFR provisions re: launch licensing.
Can Intl Law hold states responsible for commercial space?
International space law has set up a system in which States can be held responsible and/or liable for the actions of their private space entities.
Arjen Vermeer
It is submitted that the interpretation of 'peaceful' meaning 'non-aggressive', as supported by the US, is erroneous. Replacing 'peaceful' by 'non-aggressive' in Article IV(2) would a contrario mean—if one accepts the limited spatial application of Article IV(2)—that outer void space may be used for aggressive purposes non-aggressive is an open book
US Commercial Space Law: Additional Liability-Related Provisions
Launch operator must agree to enter into reciprocal waivers of claims with contractors, subcontractors, owners/contractors/sub-contractors of the payload, and any flight participants. Launch operator required to enter into a cross-waiver with the Secretary of Transportation.
Bin Cheng says its wrong cuz
Multi-pronged argument, including the use of plain language of the treaty; comparative analysis of the OST to the Antarctic Treaty, which influenced its provisions; the alleged redundancy of references to international law and UN Charter (which already prohibits aggression); etc.
Can Elon Musk claim Mars?
Not under Art 2. Natl Space Treaty
Bin Cheng says its potentially noxious cuz
Potential effects of US interpretation of "peaceful" in other international treaties / realms. "Is the United States prepared to allow the word "peaceful" in [other] treaties to be interpreted by the other parties as meaning also "non-aggressive" and not "non-military"?"
Unlimited Commercial/Private Liability
Pro: Less license regulation. High risk for commercial companies, low risk for U.S govt Con: less likely to innovate
Which administration pushed out national laws governing private space launch and space activities began to be developed.
Reagan
So . . . Why are Cheng/Vermeer so spun up about this?
The answer is celestial bodies. If outer space void has no "peaceful use/purpose" requirement, interpretation of the phrase doesn't matter for ops there! For celestial bodies, though... can there be "non-aggressive" fortifications? "Non-aggressive" military maneuvers? Etc.
States can or cannot authorize/certify private companies to engage in actions that would be unlawful for the State itself to undertake?
They cannot
Commercial Space Launch Competitiveness Act of 2015: Mining
US claims its interpretation complies with international space law, including the non-appropriation provisions of Article II, Outer Space Treaty. Many other States, however, disagree.
Dr. Bin Cheng
Vermeer agrees "peaceful purposes" as: - "Needless" - "Wrong" - "Potentially Noxious"
Distinction btw Celestial Bodies & Outer Space Void
Vermeer: "The Outer Space Treaty regulates military activities in differentiated regimes; one addresses the Moon and other celestial bodies (Article IV(2)), and the other the outer void space (Article III). Therefore, any military space activity, particularly the use of force, in outer void space should be judged by general international law, including the Charter of the United Nations and the law of armed conflict."
Article 51 - Self Defense:
Vermeer: "The application of the right of self-defence to outer space seems undisputed today." Divides self-defense possibilities into three categories: (1) Self-defense in outer space void (2) Self-defense on celestial bodies (3) Ballistic Missile Defense
Bin Cheng says its needless cuz
Why? Because "the United States does not seek to apply it to Article IV(2)"—in other words, "there is no evidence to suggest that the United States intends to conduct military activities on the moon and other celestial bodies."
How are natl space laws beneficial for private companies/entites?
Without national space laws, particularly with respect to issues of liability (is it capped or unlimited?) and insurance requirements, private entities don't know the extent of their own liability or risk with respect to space activities.
Commercial Space Launch Act (1984) - Provisions Concerned w/ Liability
You need a license to do stuff
Space Militarization
can be described as any activity which is executed by a man-made object that is incorporated de jure or de facto in the military organization of a State. Satellites may perform a number of tasks for military purposes, including communications, weather information, navigation (e.g. GPS and missile guidance), and remote sensing.
Space Weaponization
denotes the introduction of operational weapons systems in outer space."
What does a well-regulated national commercial space system do?
encourages commercial development and private space activities.
Intl Space Law is ____
is binding on STATE parties to the relevant treaties or agreements—but effects commercial / private space activity nonetheless.
Senator Albert Gore, Sr.
only for peaceful—that is, non-aggressive and beneficial—purposes. Until this is achieved, the test of any space activities must not be whether it is military or non-military, but whether or not it is consistent with the United Nations Charter and other obligations of law."
Part of the militarization/weaponization debate boils down to that age-old question of the meaning of
peaceful purposes - The "non-aggressive" interpretation - The "non-military" interpretation
Space Policy Directive-2: Streamlining Regulations on Commercial Use of Space : Trump
promote economic growth; minimize uncertainty for taxpayers, investors, and private industry; protect national security, public-safety, and foreign policy interests; and encourage American leadership in space commerce.
Article IV provides
provides the international legal requirement for States to pass national laws regulating their commercial space activities.
US Commercial Space Law- General Req'ts
shall obtain liability insurance or demonstrate financial responsibility in amounts to compensate for the maximum probable loss (A) a third party for death, bodily injury, or property damage or loss resulting from an activity carried out under the license; and (B) the United States Government against a person for damage or loss to Government property resulting from an activity carried out under the license. The Secretary of Transportation shall determine the amounts required under paragraph (1)(A) and (B) of this subsection (i) $500,000,000 under paragraph (1)(A) of this subsection; or (ii) $100,000,000 under paragraph (1)(B) of this subsection; or
Commercial Space Launch Act (1984) - Liability Insurance
under a license issued or transferred under this Act shall have in effect liability insurance at least in such amount as is considered by the Secretary to be necessary for such launch or operation
