Space Lawyer Ian Perry: U.S. Law Treats Space Resources Like Fish in the Ocean
As the humanity draws nearer to the final frontier, its interests logically change from purely scientific to something more business-oriented. Space tourism is already a thing, private companies are already launching rockets to the Low Earth orbit (LEO), and chances are we’ll see a privately owned space station the next decade.
The rules of the space game are changing as well. In order to figure out where they’re at right now, and where they are headed, lawless.tech talked with Ian Perry, a professional space lawyer who questioned our vision of the U.S. space laws on Twitter.
This is part one of the interview, which mostly covers space-related legislation in the United States, as well as its relation to the international laws. The second part of the interview covering the international space law will be issued soon.
lawless.tech: What’s your background? Why did you choose to study space law?
Ian Perry: I have always been interested in space, but I am not particularly good at math and so did not see a clear way to pursue that interest professionally when I was choosing my undergraduate major. I was sitting at the front desk at my dorm at Baylor and googled “space law” (or some variant on that) and discovered that the University of Mississippi had a program allowing people to specialize in Remote Sensing, Air and Space Law and people were getting jobs out of it; I was a bit stressed out by my honors thesis and burned out on my plan of getting a PhD in history. In fall 2009 went to mainland China’s Anhui Province to teach English and I made a decision to fly down to Hong Kong and take the LSAT (Law School Admission Test).
I started at the University of Mississippi School of Law during the fall semester of 2010. In 2013 my team got second place in the North American round of the Manfred Lachs Moot Court Competition where competitors argue a fictional international incident involving space. I got my J.D., applied for the new University of Mississippi Air and Space LL.M. program, took the Texas bar, and, after spending time in Taiwan studying Mandarin during the latter part of 2013 and most of 2014, I came back to finish up my LL.M. in person and (having tried out for a new team over Skype while I was in Taipei) won North America and then the Manfred Lachs world championship in Jerusalem during the 2015 competition.
Since then I have written a few articles related to space law, gone to space industry related events as funds allow, done more mundane legal work, and enrolled in The University of Nebraska College of Law’s doctoral (J.S.D.) program in space law.
lawless.tech: What are your primary scientific and professional interests? Why?
Ian Perry: I have wide-ranging interests. I am particularly interested in scientific studies of other planets (and moons, and asteroids) because of the potential for human settlement.
lawless.tech: What interests you the most apart from your work as a space lawyer?
Ian Perry: My primary profession involves a miscellaneous variety of legal work, a lot of my academic work has been related to space but so far only a few of my paying clients have been involved in the space industry. I am still obsessed with history, especially (but definitely not exclusively) ancient history and eras where people settled frontiers.
lawless.tech: Are there law firms in the U.S. that explicitly offer legal services to space-related companies? Is there a demand for space lawyers?
Ian Perry: There are some firms that have a space related practice. The aerospace-centric market is often difficult to get into (at least in my experience). It should be kept in mind that much of space-related work is simply more mundane areas of law applied to the space industry, but there are also space-specific national regulations as well as the international treaty system (knowledge of the latter is useful if one wants to do policy work).
Laws for a Space Power
The USA is one of the leading countries in the space industry, and U.S. private companies feel comfortable up in space and down on Earth alike, as legislation and government don’t seem to put many spikes in their wheels. Moreover, the country offers businesses quite friendly terms for their spacebound and terrestrial operations, as exemplified by SpaceX, Blue Origin, and many other companies. This view, however, may be oversimplified and superficial. So, it probably makes sense to figure out what exactly is going on in the U.S. space industry and space legislation.
lawless.tech: Can you tell us about the U.S. Space Law legal system? What are the main legal acts already in place?
Ian Perry: There have been multiple U.S. laws passed in relation to space. The Federal Aviation Administration (FAA), which is under the Department of Transportation, currently has responsibility for regulating launches and reentries. People sometimes suppose NASA is the regulator, but this is incorrect, though NASA has influence through contracts with space companies that are working with it. The H.R. 2809 bill (American Space Commerce Free Enterprise Act) would put some space-related functions which heretofore did not have a legally defined regulator under the Department of Commerce.
Currently, regulation of activities in orbit remain under unclear authority, except for remote sensing and telecommunications, about which we already have regulations. Remote sensing licensing in the U.S. is done via the National Oceanic and Atmospheric Administration (NOAA), which is under the Department of Commerce. Satellite broadcasting is regulated by the Federal Communications Commission (FCC), with the International Telecommunications Union (ITU) performing a role in allocating the use of spectrum and placement of broadcasting satellites at the international level.
lawless.tech: Typically, laws within a legal system regulate a wide array of activities, but in some cases regulators pay special attention to certain areas. Is there a set of broad rules applicable to any space-related activity, or do the U.S. regulators focus on certain industries individually, like extraterrestrial mining, rocket manufacturing, space tourism, and so forth?
Ian Perry: Remote sensing and telecommunications are bracketed and regulated in distinctive ways because of their special relationship to things on Earth and their current viability. The FAA is the general regulatory authority for other space activities, but if I am reading H.R. 2809 correctly it will treat activities in orbit separately and have them regulated by the Department of Commerce while leaving the FAA in charge of the launch and reentry activities it currently licenses.
I have seen talk of a “one-stop-shop” under the new bill, but the current wording of the bill appears to leave launch and reentry under the Department of Transportation and FAA while putting activities that do not currently have a designated regulator under the Department of Commerce (which already has some space-related responsibilities — for example, NOAA, which regulates Remote Sensing, is within the Department of Commerce).
Rocket manufacturing is treated in many respects like a “ground” industry, not like launching, with the important caveat that rocket technology is highly restricted from an export control perspective. There are a number of export control categorizations depending on the type of technology. A company working with rockets is going to need to have staff familiar with the International Traffic in Arms Regulations (ITAR) which regulates military technology, in addition to the Export Administration Regulations (EAR).
lawless.tech: In your opinion, what particular areas lack regulation in the U.S., if any?
Ian Perry: In United States law there is currently a gap in the regulatory system for non-remote sensing, non-telecommunications, operations between launch and reentry; the legal position of the U.S. needs to be clarified.
lawless.tech: Back in 2015, the U.S. adopted the Commercial Space Launch Competitiveness Act. What are the most innovative points of this document? What can it give to the country in the long run?
Ian Perry: It gives clarity with regard to space resources and the U.S. government. I do not think it legalizes something which was previously illegal, but it makes it more clearly legal. Prior to the act I would have given a (in my opinion very solid) legal argument as to why it is legal for U.S. corporations to mine resources in space, now I can simply point to the relevant U.S. law which, in so many words, treats space resources like fish in the ocean.
Space is a common area, but resources can be removed from it. Which brings us back to a brief discussion we had elsewhere about a previous article published on this website, I disagreed with the article’s claim that the 2015 U.S. law only dealt allowed ownership of asteroid resources and did not allow appropriation of resources extracted from celestial bodies like the Moon and Mars—as well as specifically using the term “asteroid resource,” the 2015 act includes a catch-all phrase “space resource” which covers resources from the Moon and Mars even though they are not mentioned. Even so, the bill should have been clearer.
There are two “hats” I put on when looking at legislation, one is to see what the legislation means, and another to see whether it communicates that meaning with sufficient effectiveness. It is better for legislation to be widely understood so as to minimize legal costs, so it would be best if the legislation explicitly stated that it applies to other celestial bodies.
Knowing the context of the legislation and having a broader familiarity with the treaties, I can confidently say that it is so intended, but if it is not clear to an intelligent person from a different background then the bill might unnecessarily discourage some investors or else raise the costs of exploration in terms of the amount of time used to consult lawyers.
I think that a lack of consensus about the definition of celestial bodies (there is not consensus about whether small asteroids count as celestial bodies) may be a reason that the term “celestial bodies” is not used in the 2015 law. The bill was, I understand it, heavily pushed by Planetary Resources, which, despite the name, is focused on obtaining resources from asteroids, perhaps that is why the catch-all phrase “space resource” was deemed sufficient to address mining done on the moon and in other (non-asteroid) extraterrestrial locations, but that’s a guess on my part.
I have heard some concern that the bill does not specifically mention “mining” but I am told (by people involved with preparing the bill) that term was avoided to avoid having to deal with the congressional subcommittee responsible for mining—the omission was about avoiding involving another subcommittee (the congressional subcommittee responsible for space was deemed a preferable venue), even though the bill is indeed about mined resources.
lawless.tech: The new H.R. 2809 Bill may oblige the U.S. government to explain its reasoning for denying a company’s application for a permission to operate a space object (e.g., a satellite or a space station), and to tell them how to have their application approved, which you said was a good thing. In the UK and Finland, on the other hand, authorities can reject such applications without explanation. In your opinion, what are the benefits for each of these approaches, and what could be their possible reasoning?
Ian Perry: I suspect that in many countries there’s a wariness of incurring liability under the Liability Convention and Outer Space Treaty. The imputation of responsibility to states in Outer Space Treaty Article 6 creates a greater connection between states and private national space activities than generally exists between states and their nationals under international law. Under the Liability Convention, the Launching State is liable based on fault for damages incurred in orbit, and strictly liable for any damage on the ground caused by its space objects.
Some states have been far more afraid of incurring liability for private space activities than is the United States (in the U.S. government assumes some of the insurance risk for private launches, a policy that’s the exact opposite of some other countries). There is a danger of reading too much into national legislation from states that are not major space powers, as in many countries space simply is not that high a priority and at present only a minority of states even have any legislation at all specifically devoted to space.
In practice, I am not sure how the Finnish or United Kingdom laws would work (perhaps someone with more familiarity with the regulatory systems in each of those states can do a follow up). From the perspective of facilitating investment, greater clarity in the text of the law is preferable even if in practice licenses are not likely to be arbitrarily denied. If the U.S. law passes, companies will have a far higher degree of certainty that they will be approved—or, at least, they will be able to argue for their approval by pointing to this law if they need to appeal an administrative ruling.
There will be some remaining U.S.-centric complications, however; for example, U.S. export control laws have tended to be relatively strict. The U.S. has been reforming its export control system in a direction that sounds positive for private actors, but as best as I can ascertain our regulations are still relatively strict; I would be interested in hearing a follow up from someone who has worked in export control through the recent changes.
National vs International
Still, America obviously isn’t the only country that aims to go to the final frontier, as exemplified by the UK and Finland mentioned above. With several long-established space powers in place, lots of local and international laws with respect to space have been deployed over the years. National legislations always tend to differ, however, they all have to observe the international treaties that govern the relations between countries. While the aforementioned seems to be a commonplace, if not platitude, it doesn’t seem to be that way when it comes to space laws.
lawless.tech: In your opinion, is it more important to have well-established and enforceable international regulations for space-related activities, or is it better to develop such regulations on a national level in the first place?
Ian Perry: In many contexts it is not an either-or — states are supposed to provide “authorization and continuing supervision” (Outer Space Treaty, Article 6) over non-governmental space activities, which is likely going to involve laws and regulations. I think when it comes to detailed regulations, states are more flexible and better able to experiment than an international regime would likely be.
lawless.tech: Is the existing U.S. space law actually in line with the respective international regulations? Are there any possible contradictions between those two branches of law? If so, how to avoid such contradictions?
Ian Perry: The existing law is in line with international regulations, though the proposed H.R. 2809 includes a claim that space is not a “global commons” which, unless there is some difference of meaning between “global commons” and “common” as used by, say, Grotius in The Freedom of the Seas, is incorrect. This is not to say that the law violates the Outer Space Treaty, but this does seem to be an unhelpful semantic fight that does not clarify what sort of common status the U.S. objects to and which it accepts with regard to space; there’s an underlying opposition to the Moon Agreement (which I share), but this line is phrased in a way which obfuscates what specifically is being targeted. If the “Common Heritage of Mankind” idea is thought to entail or imply some undesirable restrictions on action in space, better to attack that by name (though I am not sure the doctrine has a clear enough definition to even be worth attacking in the text of the upcoming law).
There is also a line in H.R. 2809 which states, “The Federal Government shall not presume all obligations of the United States under the Outer Space Treaty are obligations to be imputed upon United States nongovernmental entities.” Depending on how broadly this was applied, it might create tension with Article 6 of the Outer Space Treaty—though as a domestic legal matter it is not necessarily incorrect. In the United States not all treaty provisions automatically create legal obligations for U.S. citizens as individuals. When discussing whether U.S. treaties bind U.S. citizens we need to distinguish whether the U.S. government is potentially in violation a treaty based on the actions of its citizens and whether the citizens are, in the absence of follow-up legislation, violating U.S. law by violating the provisions of a treaty—my impression is that these questions have often gotten conflated in discussions of the United States’ responsibility to authorize and supervise space activities with the result that people end up talking past each-other.
lawless.tech: Recently President Trump ordered to establish so-called Space Force. What do you think about potential militarization of the outer space? Should we avoid such a militarization or it’s a good thing? If it’s better to avoid the militarization processes, what could be the right way to do it?
Ian Perry: While grandiose interpretations of the proposal have made for entertaining memes, a Space Force would initially involve moving space-related assets (such as control of spy satellites) out of other branches of the U.S. military into an independent branch. It would not necessarily involve additional militarization of space, with the caveat that an independent force could more effectively expand a military presence in space if that is what is desired.
I think an independent or semi-independent branch is probably good for the United States. The Air Force, which as I understand it has a space budget larger than NASA, has a reputation for being dominated by fighter pilots — I suspect having a branch dedicated to space would be more competent at space than a branch where the hierarchy is slanted in a different direction. An independent organization’s incentive structures would likely be more tailored towards excellence in space.
Conclusion
It appears that the current legislative situation in the U.S. isn’t perfect at the moment, even though it’s way better than in many other jurisdictions. However, the legal problems with non-telecommunications, non-remote sensing, and other things mentioned above might find a solution in the nearest future, provided H.R. 2809 passes the Congress.
Things aren’t that clear for the international space law, though. The second part of the interview covering those issues will be issued soon. In particular, we will discuss the concept of the common heritage, future decommissioning of the ISS and its potential legal consequences, as well as the present and the future of the international space legislation. Stay tuned.
This post originally appeared at https://lawless.tech/space-lawyer-ian-perry-u-s-law-treats-space-resources-like-fish-in-the-ocean/
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