U.S. Commercial Space Launch Competitiveness
Act[1]
(or Space Act of 2015) is a
relatively recent piece of legislation by the U.S.A. It has been enacted with
the object of achieving the following-
I.
Spurring
Private Aerospace Competitiveness and Entrepreneurship
II. Commercial Remote Sensing
III. Attributing economic/ commercial
functions to the Office of Space Commerce (Renamed)
IV. Space Resource Exploration and
Utilization
The following relevant Definitions
may prove handy.
- ASTEROID RESOURCE- The term ‘asteroid resource’ means a space resource found on or within a single asteroid
- SPACE RESOURCE- The term ‘space resource’ means an abiotic resource in situ in outer space.
3. The term ‘space resource’ includes water
and minerals.
- SPACE FLIGHT PARTICIPANT- ‘space flight participant’ means an individual, who is not crew or a government astronaut, carried within a launch vehicle or re-entry vehicle.’’
The Functions of this ‘domestic’ legislation
may be summarized as below, to be exercised by the President of U.S.A.
·
facilitate commercial exploration for and commercial recovery of space
resources by United States citizens;
·
discourage government barriers to the development in the United States
of economically viable, safe, and stable industries for commercial exploration
for and commercial recovery of space resources in manners consistent with the
international obligations of the United States; and
·
promote the right of United States citizens to engage in commercial
exploration for and commercial recovery of space resources free from harmful
interference, in accordance with the international obligations of the United
States and subject to authorization and continuing supervision by the Federal
Government.
The main bone (asteroid mining) of contention
i.e. Asteroid Resource and Space Resource Rights, has been dealt with as below.
•
A United States citizen engaged in commercial recovery of an asteroid
resource or a space resource under this chapter shall be entitled to any
asteroid resource or space resource obtained, including to possess, own,
transport, use, and sell the asteroid resource or space resource obtained in
accordance with applicable law, including the international obligations of the
United States.
Disclaimer of Extraterritorial Sovereignty: The Congress did have a sense that U.S.A.
being a monist system, as to the treatment of International (Space) law, could
have difficulty in claiming rights over an asteroid, hence they issued the
following caveat, which is probably unenforceable by the domestic courts of U.S.A.,
and to the rest of the world they would flaunt this disclaimer.
It is the sense of Congress that by the
enactment of this Act, the United States does not thereby assert sovereignty or
sovereign or exclusive rights or jurisdiction over, or the ownership of, any
celestial body
Mostly useless!
Sovereign Jurisdiction:
The legislation also confers exclusive jurisdiction to the federal government of
the U.S.A. This applies even to the nationals of other states. This also flies
in face of the Liability Convention, to which the U.S.A. is a signatory.
SEC. 106. FEDERAL JURISDICTION.
Section 50914 is amended by adding at the end the following:
(g) FEDERAL JURISDICTION.- Any
claim by a third party or space flight participant for death, bodily
injury, or property damage or loss resulting from an activity carried
out under the license shall be the exclusive jurisdiction of the Federal
courts.
Additional Regulations: The
information regarding ITAR is necessary to add a context to the arguendo that
the U.S.A. has on one hand excluded every other nation from the commercial exploration
of objects in outer space by Outer Space Treaty, and schemed on the other hand
via this legislation to conquer the same deceitfully. One mustn’t forget that the
rest of world was cheated upon by a treaty (OST) they believed in, and had they
known that the objects in outer space could be commercially appropriated
directly or indirectly, they too may have invested heavily in the aerospace
sector, just as NASA did.
•
International Traffic in Arms Regulations (ITAR) control the export and import of
defense-related articles and services on the United States Munitions List
(USML)
•
All
manufacturers, exporters, and brokers of defense articles, defense services, or
related technical data must be ITAR compliant.
•
Must
be registered with the State Department’s Directorate of Defense Trade Controls
(DDTC)
International Obligations of
USA : The OST was formulated chiefly by U.S.A. and is generally considered
the bedrock of Space Law. I would only like to highlight few of flagrant
violations of the treaty by the domestic legislation of U.S.A. The more one
reads the provisions of OST, the clearer its violations by U.S.A.
Article I of The Outer Space Treaty, 1967[2]
(OST)
•
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.
Points of
Concern : There are legal concerns regarding the misadventure by this domestic
legislation into the serenely settled environment of International/ Space Law. This
is not a mere conflict of law, it’s a head on collision of municipal law with settled
International law & practice. A law cannot be destructive of another valid
piece of law, is a basic understanding of rule of law. Greater injustice to the
OST is done by, the municipal law mentioning that their municipal law is not in
violation of OST. This is as strange as appalling. How can the legislature
assume the role of judging its own legislation? This is clearly an attempt to influence/
supply an interpretative tool to any future international/ domestic Court/
Tribunal, to read down original OST, since at both the levels there exists
certain inherent limitations to interpretation.
Colorable Legislation- What you can’t
do directly, you mustn't do Indirectly.
·
When a State is Forbidden by a treaty to
Appropriate a property, it cannot allow its citizens backdoor through Domestic
legislation
·
Space Companies can be seen as Instrumentalities
of State (USA)
·
Example of Effective Control- British East India
Company was undoubtedly an Arm of Great Britain & they ruled Company’s
colonies by proxy. Hence I view this Law akin to the Charter granted by Queen Elizabeth to the East
India Company in 1600.
Legislation as Sovereignty : The
legislation is a supreme sovereign function of state. When a state legislates,
it claims that area of legislation. For e.g. if the Peoples Republic of China were
to legislate on, say, imposing a certain tax on resources from whole of South China
Sea (or even Lake Michigan for that matter), would it not be seen as extending PRC’s
sovereignty to such areas?
·
Enacting a legislation on a field (property) ipso
facto puts a Sovereign claim on it.
·
Monist systems such as USA, would have hard time
defending this legislation in domestic Courts, since appropriation of Asteroid
or Space Resource falls in Occupied field (OST) arguably.
Sovereign
Judicial Rights : The other leg of previous argument is conferring judicial
sovereignty to domestic Courts, on the resources in global commons.
•
The USA has also claimed Judicial Sovereignty on
the Asteroid’s resources its citizens can get their hands on.
•
Even a far- fetched possible International claim
under OST should not be adjudicated exclusively in Domestic Courts. It is an affront to the concept of equality
of sovereign states. In a way, it inhibits a foreign claim, since submitting a
claim to US Courts by a foreign state would defeat the purpose of the claim, by
validating its jurisdiction.
Misc.
Concerns : The concerns are too many to list, but some of them stand out.
•
Through Taxation of space companies’ revenue or
by the rights of eminent domain, who appropriates the Asteroids (resource) but
the USA?
•
Purposive Interpretation of OST & Allied
Space treaties forbids this Legislation.
•
Good Faith in Space Treaties is violated.
•
Wordings of Legislation avoid specific reference
to OST & keep it vague as International ‘Obligations’, thus questioning the
jus cogens status of OST.
•
Torture (UNCAT), Slavery (UDHR), Genocide etc.
can be validated by private parties through legislative disclaimers.
Impact :
This legislation would/ should have sounded the alarm bells in the
International Community, who would have either discretely made some pacts
around OST or would be in the process of legislating their own similar laws. Be
that as it may, its too late to counter the “Might is Right” argument in
International Law.
•
Every signatory to OST legislating a similar or
more aggressive Space Act violating OST.
•
The competition in domestic legislations on
outer space, would then guide the development in International Space Law.
•
Practical Impact- The private investors would
converge their resources to USA, further misbalancing an already imbalanced
International space order, defeating purpose of OST.
Desirable
Way Forward : No doubt OST is outdated, though still a classic in some
sense. But its job is long done, and another comprehensive treaty is needed to
take it forward without violating the basics of OST.
•
A cooperative model on International Space order
is needed. A treaty or something short of it, is the only way forward. This is
how the space treaties were framed, intentionally choking the development of
commercial space race until a global consensus on the same is reached. This is
the jus cogens.
•
Unilateral actions however real & pragmatic
can not over ride jus cogens in Law of Nations.
Conclusion :
I would conclude by saying what a neutral International/ constitutional Court judging
the validity of a municipal legislation ought to say.
·
The 2015 law is an illegal legislation & we
must call it so. If we acquiesce to this law, we do great injustice to the
development of International Law Itself. This is not just about space law. Its
about protecting the purity of International Law, which is well short of
sanctions.
·
The trend of domestic law converting to
International law, even to fill a gap, is antithetical to global equality.
·
The international Community must grow out of its
narrow gains and voice its resentment even against a powerhouse such a U.S.A.
if it wants to have an equitable global order.
Whats wrong for one is wrong for all. Such a confrontation is necessary to
reinstate the faith of global community in Treaty Making. Or else, we must be
ready to face a situation where global community would become disinterested/
reluctant/ casual in the exhaustive process of treaty making, at least in areas
which matter.
This is the beginning of my
arguments, since this is just the tip of an iceberg. As usual, I tried to
shorten this as much as possible.
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