by Joanne Irene Gabrynowicz with the blog faculty
The event page for the Future of Commercial Space Law and Regulation is now live and available. The site includes the agenda, speaker bios, presentations, and downloadable podcasts of the discussions.
The Future of Commercial Space Law and Regulation: Sustained Long-Term Planning and the Complementary Roles of Public & Private SectorsJune 7, 2011 at 2:23 pm | Posted in Blogcast, Space Law | Leave a comment
The final panel was moderated by James A. Vedda and included Jim Dunstan, Mobius Legal Group, LLC; Henry Herzfeld, Research Professor, Space Policy Institute, George Washington University; and James A.M. Muncy, PoliSpace Space Policy Consultancy.
Dunstan started the discussion by looking how the U.S. Space Policy looks forward to and envisions settlement of space. He stated that historically, the space program has been operated in in a top down manner, which inhibits it’s future development. He stated the need for a unified goal for the space development.
Muncy comments focused on the idea of approaching space commerce holistically as opposed to looking at particular interests. He stated theta “business in space should be about business.” Like traditional business it should be about delivering good products to a market. Therefore, he stated that space commerce should be looking at the goals of not just space commerce but also the government. He endorsed analyzing where business fits in to the government’s goals for space.
Herzfeld stated that settlement should not be the objective of space activities. He then noted that as long as there is business is in space there will be an increase in regulations as opposed to a decrease. He noted that space law grew as an outgrowth of the treaties. He drew particular attention to Article VI which makes states responsible for their space actors (including businesses). He stated that this was an exceptional clause, and one that is unlikely to be changed. This, he said, the challenge for regulation of space commerce. He stated that national laws will be the source of these new regulations. He said cooperation between industry and government was how space goals would be achieved. He noted others issues that will affect the future of commercial space such as the increase in space debris. He said that it will be important to make space business a desirable endeavor for private actors.
The discussion moved to issues of orbital debris, and how to deal with the growing problem. The panel discussed whether salvage was allowed or whether it could be allowed. Herzfeld noted that any attempt to salvage would create additional risks and a myriad of other issues. Vedda asked whether there was potential to change the Outer Space Treaty to allow for this. Herzfeld stated that it would be very difficult to change the treaty, and waiting for such a change is impractical. The panel discussed in depth possibilities for regulating space debris and its removal using a variety of methods.
The Future of Commercial Space Law and Regulation: Public-Private Partnerships – Obtaining Better Results in the U.S.June 7, 2011 at 12:19 pm | Posted in Blogcast, Space Law | Leave a comment
by P.J.Blount with the blog faculty
After lunch, the first panel was moderated by Joanne Irene Gabrynowicz and dealt with Public-Private Partnerships. Panelists included Michael J. Mendelson, Asst. General Counsel, Intelsat; Charles Miller, Senior Advisor for Commercial Space, Office of Chief Technologist, NASA; and Don Conners, GeoEye, Inc.
Mendelson began by stating that the international legal regime was developed with the nation state in mind, and not commercial actors. He stated that this was a shortcoming. He then described how the Space Data Association was formed so as to create a private solution to this problem by sharing information among entities. He stated that this association was now beginning to work with government entities as a way to further increase risk mitigation.
Conners began by discussing trends in the public-private arena. He noted scarce funding, governmental actors are looking for cheaper alternatives, and governments are more interested in completing their own operations. He then stated that agreements that step outside of traditional government procurement contracting are very appealing to private companies. He noted that OTA other transactions agreements were more flexible and were favored by technology companies. He also stated that dual use technologies that have usage potential for private users as well as government users allowed companies to lower prices for government users. He stated that these types of partnerships tend to create a faster way for newly developed technology to get to the market.
Miller stated that the United States should dig deeply into Public-private partnerships in order to understand what has and has not worked. He then discussed Space Act agreements and how this “other transactions authority” helps to enrich NASA’s capabilities. He also stated that looking at other models, such as European ones, for these partnerships would help the parties get more out of these partnerships. Historically, he said, public-private partnerships have been used for building transportation infrastructure such as railroads and canals. He moved on to discuss how these partnerships can support national security imperatives. He stated that in the long term public-private partnerships are a fertile ground for development.
During the discussion the panelists highlighted that how to structure these partnerships was the biggest challenge. The stated that a one size fits all approach would not work. Each partnership depended on on the particular facts involved.
The Future of Commercial Space Law and Regulation: Orbital Arc Regulation – Transitioning from Government to the Private Sector Over the Long TermJune 7, 2011 at 11:20 am | Posted in Blogcast, Space Law | Leave a comment
by P.J. Blount with th blog faculty
Lunch presentations were given by Giovanna M. Cinelli, Partner, Jones Day Wahington, DC; Elizabeth Evans, Partner, Jones Day New York; and Del Smith, Senior Telecommunications Counsel, Jones Day Washington, DC.
Smith started with a brief overview of Tongasat episode, and how this effected the practice of orbital slot allocation. Smith analyzed the occurrence as to whether this “appropriation” of the orbital arc was legal and whether it was fair. He gave an overview of the issues involved including issues of non appropriation, free access, and equitable access.H also addressed procedural hurdles in gaining GEO allocations. H suggested that a market approach might be a valuable way to deal with orbital slot allocation in the future.
Smith turned the floor over to Evans. She discussed current orbital arc regulation and ways to move forward. She noted that the space law regime is a product of the Cold War, and the Outer Space Treaty and its progeny were the core of international outer space law. Next she discussed the International Telecommunication Union (ITU) regime, which regulates GEO arc positions at the international level. She stated that it was a very complex system, and that it lacked legal certainty which is problematic for businesses. She noted that the ITU bars allocation to private entities. She also stated that there were issues for the role of developing countries should be in this system. The result is that the ITU has a dual allocation system which incorporates first come first served with equitable allocations. She highlighted other issues including the ITU’s lack of enforcement capabilities, and its inability to stop States from violating slot allocations. She then moved on to discuss whether there was a need for private sector regulation. She stated that it would, but that such a system could not work without a binding dispute resolution mechanisms. She stated that States have been reluctant to adopt new limitations on their use of space, and that this was complicated by the potential for the weaponization of space. She then endorsed an international authority to regulate aerospace vehicles.
Cinelli presentation discussed legal hurdles to a transition to private regulations of orbital slot allocation. First, she discussed the United States space policy and regulation. She stated that the policy sought to facilitate commercial development, but also to pursue the object of national security. She noted that the policy is focused on cooperation as opposed to unilateral leadership. Then she turned to discussing export controls and how those effect the space policy and create hurdles to international cooperation. She concluded by noting that national security concerns such as these were a major hurdle to private regulation of orbital slots.
by P.J. Blount with th blog faculty
The next panel addressed State and Local issues of commercial space regulation. It consisted of Leonard David, Space Journalist, Space.com, Space News, AIAA Aerospace America; Milton “Skip” Smith, Sherman & Howard L.L.C.; Rachael Yates, Partner, Holland and Hart LLP; and was moderated by James A. Vedda.
David’s introductory comments focused on the changing face of space commerce activities. He noted the rise of wealthy investors in the area. He said that this changed the atmosphere for commercial space by changing the nature of investments that are being made in space. He also stated that this changed the business by shifting emphasis to media attention and also changing the speed of developments due to competition. He said that regulations should be adopted that would not stifle innovation and development, but that these regulations should still address risk, especially to third parties. He then moved to a discussion of how developments such as Spaceport America positively affects local economies.
Yates’ comments focused on what happens, in light of liability, when a commercial spacecraft crashes. She focused on liability waivers at the state level and who those waivers protect. She stated that state laws that protect a broader group of people will better encourage space commerce. She then gave analysis of the four state liability laws (Virginia, Florida, New Mexico, Texas). She stated that the language that these laws use may leave companies open to litigation by allowing litigants to recover for certain types of damages not covered under the law. She also discussed that the informed consent requirements differ from state to state, as well as the entities bound by the laws. She concluded the analysis, by noting the exception to protection granted to space flight providers. She then addressed the Enomoto v. Space Adventures case. In which a space tourist sued Space Adventures for brach of contract. In the case, Enomoto paid Space Adventures for a trip to the ISS, but was disqualified for health reasons. She stated that the case appeared to have settled. She noted that in this case there was a choice of law provision. This is important when discussing liability laws, and space flight providers should be aware of this when contracting.
Smith started by stating that state regulations were driven by different motivations than federal regulations. Specifically he stated that state laws are concerned with economic considerations. These laws are developed to enhance state economies by giving companies incentives to operate within the borders of that state. He noted that states do this in a variety of ways in addition to the liability waivers. He noted tax laws and government grants as major tools used by states to encourage space companies to do business within their borders. He stated that states were competing with each other for these companies. He comments then moved to the FAA Centers of Excellence and how the program leads to the development of expertise with a state. He also commented on space act agreements, technology transfer opportunities, small business innovation opportunities, and technology facility development as ways to develop the industry.
The Future of Commercial Space Law and Regulation: USC Title 51 – The Codification of the US National and Commercial Space LawJune 7, 2011 at 7:42 am | Posted in Blogcast, Space Law | Leave a comment
by P.J. Blount with th blog faculty
The next presentation was given by Joanne Irene Gabrynowicz and Robert Sukol, Senior Counsel, Office of the Law Revision Counsel, U.S. House of Representatives.
This presentation was focused on the codification of U.S. Space Law into Title 51 of the United States Code. Sukol was responsible for this codification. He discussed the process of codification. He stated that the codification process was unconcerned with policy issues in the statutes, and that it was instead concerned with organizing federal statutes in a coherent manner. He stated that the US Code is the official codification of federal statutes. He gave a brief historical discussion. He said the codification process began in the 1920s, but that federal space law began in 1958. The result was that these new space statutes found their way into various parts of the code with the bulk going into Title 42: Public Health and Welfare. He stated that there was not organization. To remedy this a new “positive law” code was enacted. A “positive law” code is one that is a federal statute itself. Essentially, he stated that the codification is a reorganization of the law and does not change the law.
The Future of Commercial Space Law and Regulation: Federal Laws and Regulations – Creating and Environment That Really Does “Encourage and Facilitate”June 7, 2011 at 7:39 am | Posted in Blogcast, Space Law | Leave a comment
The first panel of the day was titled, Creating and Environment That Really Does “Encourage and Facilitate.” Panelists included Herb Bachner, Program Manager of Commercial Space Transportation, CSSI Inc.; Rene J. Rey, Senior Aerospace Engineer FAA/ Office of Commercial Space Transportation; and Franceska Schroeder, Fish & Richardson. Joanne Irene Gabrynowicz moderated the session.
The panel discussed priority issues for the next decade. Panelists discussed many issues. One of the first was insurance and liability caps for space activities. This panel focused on regulatory activity by the FAA meant to “encourage and facilitate” commercial space activities. One of the predominant themes in the discussion was the idea of the goals of these regulations and the government in general. A need for a long term strategy was expressed by the panel, and implementing regulations to meet these goals was expressed as essential.
The panel was then asked to address why liability caps should be continued for the space industry rather than others. Schroeder responded that the industry was a risk industry, and that the government realized that a company couldn’t function if it’s existence was put on the line every time it launched a satellite. She stated that the risk allocation made the industry predictable, and that it helped to make the commercial space viable, via a clear and comprehensive contract regime. She also stated that there were numerous policy reasons why the government should promote the industry in this manner, especially the protection of high technology leadership. Bachner followed up on the policy issues. He stated that it was in the government’s interest to be a leader in the field so that it can be at the forefront of developing standards and regulations, which increases safety in the future. He then stated that an industry with a track record for safety, can also become an economic asset. Rey stated that the risk sharing regime should be augmented by more robust insurance regulatory regime.
The panel was then asked whether the government should remove itself from supporting this industry. Schroeder stated that it was in U.S. interest to protect industries that affect national security among other things. She also stated that space infrastructure was critical to so many industries, therefore the governments interest is served by encouraging the industry. Bachner compared the space regulation to aviation regulation. He stated that the regulatory roots were different which led to space being regulated in segments, which is not necessarily bad, but that it creates more discussion on each element.
The Future of Commercial Space Law and Regulation: Setting the Stage – Where We Are in Commercial Space, How We Got Here, and What Lies AheadJune 7, 2011 at 6:59 am | Posted in Blogcast, Space Law | Leave a comment
by P.J. Blount with th blog faculty
The National Center for Remote Sensing, Air, and Space Law is hosting a symposium titled The Future of Commercial Space Law and Regulation at Jones Day in Washington, D.C. res Communis will be live blogging the event.
James A. Vedda, Senior Policy Analyst at the Center for space Policy and Strategy at The Aerospace Corporation, started the morning with a discussion of space commerce, by comparing the space industry to other industries. He noted that compared with other major industries, the space industry is small. However he noted that space technologies enable many other industries. He then discussed the United States National Space policy which includes a mandate to “encourage and facilitate” commercial space. He stated that there were mixed results from this policy. He said that the majority of space applications used space as a vantage point, and then made suggestions to broaden these uses. He stated that the challenges to law and policy were to overcome short term thinking, and adopting long term strategies.
Joanne Irene Gabrynowicz, Director of the National Center for Remote Sensing, Air, and Space Law, then gave a brief overview of space law. She stated that the core of space law was the treaty regime, which contemplates commercial space actors. She said that this regime has been augmented by decades of commercial practice. Next, she noted the heart of U.S. national space law was the NAS Act of 1958. She then gave an overview of it’s development and how that development has addressed commercial space. She stated that the law developed to govern many facets of space activities. She noted that currently there is a great deal of regulatory activity to further refine the laws. Finally, she discussed the codification of Title 51, which puts all of U.S. space law in one place.
The Fifth Eilene M. Galloway Symposium on Critical Issues in Space Law: Lunch Speaker – Marcia SmithDecember 3, 2010 at 5:11 pm | Posted in Blogcast, Space Law | Leave a comment
by P.J. Blount with the blog faculty
The Lunch Speaker at the Galloway symposium was Marcia Smith, Space Policy Online and Space and Technology Policy Group, LLC. Her presentation was titled “The 2010 U.S. National Space Policy and Its Potential for Upholding the Principles of the Outer Space Treaty Regime.”
Her comments centered on how the new United States Space Policy issued by the Obama administration differed from the previous policy from the Bush administration. She emphasized that the policy focused on International Cooperation as a way to increase space security and encourage the peaceful uses of outer space. She noted that this was step towards engaging the international space community in order to accomplish exploration goals. She also discussed how the idea of U.S. leadership in space exploration was still in the space policy, but had less emphasis than in previous policies.
The Fifth Eilene M. Galloway Symposium on Critical Issues in Space Law: International Relations and Foreign AffairsDecember 2, 2010 at 1:26 pm | Posted in Blogcast, Space Law | Leave a comment
The first panel after lunch was on “International Relations and Foreign Affairs” and was moderated by Dr. Marietta Benkö, Executive Editor, German Journal of Air and Space Law, University of Cologne/Institute of Air and Space Law, Germany. Panelists were Dr. Bin Li, Associate Professor, Asst. Dean, Director, Institute of
Space Law and Assoc. Director, Institute of Aviation Law, Beihang University School of Law; Theresa Hitchens, Director, UN Institute for Disarmament Research, Geneva, Switzerland; Prof. Sergio Marchisio, University Sapienza of Rome, Director Institute for International Legal Studies (National Research Council, Italy); and Michael Mineiro, McGill University, Canada. Unfortunately, Hitchens’ flight was delayed so her presentation was given by P.J. Blount, Research Counsel and Instructor, National Center for Remote Sensing, Air, and Space Law.
Li’s presentation was titled “China’s Current Legislative Efforts to Control and Manage Space Debris” and focused on Chinese attempts to use regulations to mitigate space debris. After giving a short overview of the hierarchy in China’s legal system, Li turned to specific regulatory mechanisms in China that address space debris. He first turned to Chinese regulations on the licensing the launch space craft and on the registration of spacecraft. He stated that these were important steps towards mitigation efforts since they helped to give the relevant authorities information that could be used in debris mitigation. He then moved to a discussion of the Interim Instrument of Space Debris Mitigation and Management, which has been promulgated by State Bureau of Science, Technology and Industry for National Defense (SBOSTIND). This measure deals with debris mitigation from civil launch activities. He stated that it was a major step for China in mitigating its space debris production for the benefit of all space users.
Hitchens’ presentation, “Article IX of the Outer Space Treaty, Data Sharing, and Space
Situational Awareness,” focused on Space Situational Awareness (SSA) in light of Article IX of the Outer Space Treaty. It pointed out that Article IX creates standards of care for space users, and creates affirmative duties to engage in consultations if one State’s activities might cause harmful interference to another State. However, the presentation pointed out that Article IX was vague in relation to the rights and obligations that it actually created. The presentation highlighted that in order to properly accomplish much of what Article IX endorsed, a State would need SSA capability or access to data from a State with SSA capability, thus the question arises as to whether that capability is required by the treaty. The presentation noted, however, that there are numerous complications to such a requirement such as technical factors, the vague language of the treaty, and possible antithetical state practice.
Marchisio presented “The Principle of No Harmful Interference and the Draft Code of Conduct on Space Activities.” He first briefly discussed the origins ot the principle of no harmful interference as found in Article IX of the Outer Space Treaty as well as in the ITUs Radio Regulations. Then he noted that it had been adopted in the draft European Code of Conduct on Space Activities. He stated that this code was meant to be a Transparency and Confidence Building Measure, and that these sorts of instruments were specifically called for in numerous United Nations General Assembly Resolutions. He stated that the code was a self sustained initiative that the EU intended to be a diplomatic initiative that should lead to an ad hoc diplomatic conference, and that it was not intended to be presented to the Conference on Disarmament or UNCOPUOS. He noted that the code was a voluntary nonbinding instrument that intends to adopt a systematic approach to address all dimensions of space operations by adopting core principles that could increase space security. He concluded by noting that the article did not intend to compete with Article IX, but was intended to comply with Article IX.
Miniero’s presentation was “Principles of Peaceful Purposes and the Obligation to Undertake Appropriate International Consultations Under Art. 9 of the Outer Space Treaty,” and it attempted to address the idea of due regard found in Article IX. he first noted that there were three types of harmful interference in space: radio interference, observational interference, and physical interference. He stated that in order to understand the concept the concept of due regard in Article IX it must be read in context of the practical context of Article IX. He stated that the article has three guiding principles: cooperation, mutual assistance, and due regard. He said that due regard as found in the Outer Space Treaty should be read as “an obligation to take into account, both prior to (planned) and during (ongoing) space activities and experiments the legal rights of other States Party in the peaceful use and exploration of outer space, the moon and other celestial bodies.” He concluded by analyzing how the principle of due regard interacts with the consultation clause of Article IX.