23 September 2009

National Sovereignty Over the Geostationary Orbit

A recent comment on my article, "Who Owns the Geostationary Orbit?" in the Annals of Air and Space Law, Vol. XXXI:

This is an excellent article and a very convincing argument – I’m definitely going to cite it in my upcoming works. I guess what’s particularly interesting to me is something you also point out in the article – although the reasoning behind the Bogota Declaration is clearly spurious (as your article shows so well) it seems to me that there is, however, something peculiar about the geostationary orbit. The GSO seems unlike other orbits to me in the sense that it seems to be much more of a kind of ‘fixed territory’ in the sense that there’s a limited amount of “space” (forgive the pun) there. Countries who’ve placed payloads into that orbit, it seems to me, “occupy” it in a de facto sense. I haven’t done any historical research into this whatsoever, but I imagine the Bogota Declaration was probably a poorly reasoned way of developing nations to stake a future “claim” on space in that orbit, despite the fact that they were/remain unable to utilize it. I imagine the equatorial states worry that by the time their countries have the economic means to deploy their own payloads into GSO, there will be no room left (I’ve read that GSO ‘slots’ will probably fill up in the next few decades). I think you’re right in pointing out that the closest land analogy to the orbit is Antarctica, but there’s a key difference: Antarctica isn’t going to be ‘filled up’ anytime in the foreseeable future, has little commercial potential, and has little military value. The GSO has all. This is certainly not a criticism of your article – I’m trying to get at a different question than the one you’ve raised. I’m interested in trying to think about the GSO as a kind of “territory” in precisely the way your article seems to suggest we should think about it.

Let's address some technical concerns first. A small equatorial state such as Ecuador could just as easily be served by a geostationary satellite positioned above a point in the Pacific Ocean a degree or two to the west of its territory: just point the ground antennas a few degrees to the west. The interests of Ecuador wouldn't be harmed or diminished in any substantive way. On the other hand, a large equatorial state such as Brazil has so large an arc of the GSO above its territory that it ought to be fairly easy to share that arc with other users. Of course, given more users, GSO slots will tend to fill up, all other things being equal. However, all other things are not equal. Using 1960s technology, the GSO slots would have filled up many years ago, but as satellite communications systems have become more capable, more utility has been extracted from each GSO slot.

Now to the legal issues. The "fixed territory" character of the geostationary orbit is an illusion, and therefore so is any claim over a segment of the GSO based on national territory. Imagine two automobiles traveling along a road side by side in adjacent lanes at the same speed. From the point of view of one, the other is stationary, yet neither one is stationary. One car has no claim over the space in the adjacent lane. The other auto has the right to pass through that adjacent space, or to remain in that space for some unspecified time.

The geostationary orbit is a consequence of the Earth's rotation; if the Earth did not rotate, there would be no GSO. Suppose there were a nation on the Moon centered at zero degrees latitude, zero degrees longitude, and extending for several degrees from this point north, south, east and west. There would be an object constantly occupying the arc of selenostationary orbit directly above this lunar state's national territory, and according to the reasoning of the Bogota Declaration, the object permanently occupying this selenostationary slot would be the national territory of this lunar state. That object is Earth.

The right to overfly national territory is absolute, regardless of the transit time. This right of overflight became instant customary international law with the launching of Sputnik 1 and the absence of objection by any overflown state. According to Article 2 of the Outer Space treaty, no part of space, including any segment of the GSO, is "subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." Certainly, a satellite positioned in the GSO uses and occupies that position, but Article 2 prohibits neither use nor occupation, it only prohibits either of these as a means of national appropriation. The use and occupation of GSO slots is is clearly not national appropriation, since these slots are licensed by an international organization, the International Telecommunications Union.

I am not unsympathetic with the concerns of equatorial states, that they may become launching states in the future, and find that their national interests conflict with the interests of those of other entities who have satellites in the GSO above their national territory. These interests will need to find an equitable balance, which suggests that the rules of the ITU may need some adjustment in the future to accommodate new users of the GSO.

By the way, an unintended consequence, not considered by those who disparage the Article 2 principle and who would like to see successfully asserted claims to territory on the Moon, is that any such successfully asserted claim would jolt the life-force into the Bogota Declaration, setting loose a Frankenstein monster upon the international law regime of outer space.

21 September 2009

Response to "Habitat Hermit's" Comment

I thank you for your comment.

I submitted my rebuttal to The Space Review three weeks ago, and so far it has failed to publish my rebuttal. One ought to question why The Space Review would publish a piece that monstrously misrepresents an author's work, while not allowing the author the equal opportunity to correct the record. What is this publication's agenda?

Both the Outer Space Treaty and the Moon Agreement are international law; they are both deposited with the United Nations, they are both open for signature, and they are both binding on the states that have ratified them. The distinction is that the Moon Agreement has few states parties.

While I take appreciative note of your apology for the third paragraph of your post in The Space Review as "scathing" and "entirely misdirected," let me nevertheless address some of the issues you raise.

When you state that my book "seems to base itself on an ultra-extreme statist interpretation of the OST that neither the former Soviet communists, nor the US, nor Russia, nor China, nor the EU, nor Japan would subscribe to," frankly, that doesn't even make any sense to me. And if any of that were true, is it credible that my work would have been approved by a committee that included a professor who teaches international law as well as a career US Foreign Service officer of ambassadorial rank who was on the negotiating team of strategic arms treaties, or that Aerospace Corporation analysts would have briefed my work to senior NASA managers?

Nor is my alleged "ultra-extreme statist interpretation" why "the author of the book thinks the Moon Treaty is a good idea." I think it is a good idea because I reach conclusions that are opposite to yours. You state that "in reality the OST and the Moon Treaty are in deep conflict because the Moon Treaty contradicts the OST on the issue of Earth-government authority over non-Earth assets; the OST argues against such authority while the Moon Treaty takes such authority for granted." Given your premise of "the inherent contradiction between the Outer Space Treaty on one side and the Moon Treaty/Moon Agreement on the other," how can you explain the fact that the same states that ratified the Outer Space Treaty between 1967 and 1979 apparently reversed themselves so completely in negotiating the Moon Agreement between 1972 and 1979? Nowhere in the scholarly literature have I seen anyone else make this assertion; rather, the weight of scholarly opinion is that the Moon Agreement adds specificity to the principles declared in the Outer Space Treaty. Cite chapter and verse if you think otherwise. Exactly where does the Outer Space Treaty argue against such authority? Meanwhile, the Moon Agreement does not take such authority for granted; it merely commits states parties to "undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible." Now, in international law, the word "regime" has special meaning. It does not mean "regime" in the sense of a sovereign government, complete with coercive mechanisms such as police and/or other armed forces. Rather, it means "a set of rules" established to govern specific activities. For instance, the General Agreement of Tariffs and Trade was a regime (a set of rules) without an organization for four decades before the Uruguay Round of GATT established the World Trade Organization. It seems obvious that when the exploitation of the Moon and other celestial bodies is about to become feasible, there will need to be a set of rules to ensure that commercial operations do not interfere with each other, or are not interfered with by other entities. Indeed, a regime of legal certainty is conducive to a favorable investment environment. In my view, this provision of the Moon Agreement was meant to address this need.

Whether or not you agree with my positions on points of international law pertaining to outer space, I hope you will at least recognize that in the long run we want the same thing: the efflorescence of the human species into the cosmos. I believe in international law as a means to this end, and not a barrier to it.

02 September 2009

Convenient Untruths From a Space Priest

Taylor Dinerman's review of The Development of Outer Space: Sovereignty and Property Rights in International Space Law is full of misperceptions and distortions of my work.

"Thomas Gangale makes the case that it is now settled international law that there can be no private property on the Moon or on other bodies, at least as private property is understood here on Earth." Quite the contrary, I make the case that there can be a form of private property on the Moon and other celestial bodies under existing international law that ought to satisfy commercial interests.

"He makes the case that some sort of internationally recognized body, probably under UN control, will have to legitimate any commercial activity." This is untrue. No UN body is required to "legitimate" commercial activity. Obviously, disputes over conflicting interests may arise, and an international legal structure might be a preferred mechanism for resolving such disputes. Such a structure might develop organically along the lines that Declan O'Donnell envisions, rather than be imposed by new treaty law.

"He believes that there may be a way for private companies to harvest lunar resources without contravening the provisions of the OST, but he cannot clearly define how this would work." When the US and USSR returned samples from the Moon and their ownership of those samples went undisputed, it became instant customary law that extraterrestrial materials, once removed from their natural state, become property. Clearly defined, that is how it works. Furthermore, the Lockean principle of mixing soil and labor to create a property right was codified in the Moon Agreement.

"Gangale believes that the day of the nation-state is almost over...." This is untrue. I make the fairly obvious observation that the Westphalian nation-state system had a beginning only 360 years ago and is likely to have an end... someday. The weather forecast for tomorrow: the sky is not falling.

"He quotes former ultra-leftist German Foreign Minister Joschka Fischer...." To use Dinerman's own intellectually penetrating question, "So what?" I quote a hundred people, including ultra-rightists who never held any position of trust in any country.

"Since there is no authoritative interpretation of the [Moon] treaty, or of the OST for that matter, he chooses to use the Law of Treaties to push for an interpretation depending on such things as 'preparatory work' and 'negotiating history'." Having repeatedly demonstrated his contempt for truth, here Dinerman exposes his contempt for international law. I point out a fact that opponents have conveniently ignored for thirty years, that the transmittal document that accompanied the Moon Agreement contained the authoritative interpretation of provisions of the agreement that were points of contention. As for the Law of Treaties, I choose nothing, push nothing. It is a fact that the US has had the long-standing practice of abiding by the Law of Treaties despite its failure to ratify the convention, which is quite typical of US behavior in international law. Thus the US “chooses" to be "pushed" by the convention's provisions, among which is a formula for the interpretation of treaties.

"If the US had signed the Moon Treaty it would indeed have been negotiating 'under the gun'." This is preposterous; which nation has the most guns?

"If and when a private organization begins operations on the Moon, the [Outer Space] Treaty will face either ruin or major revision." An interesting assertion, but where is the supporting legal argument? The Outer Space Treaty is a declaration of principles; specifically, which principles would come into conflict when a private organization begins operations on the Moon?

"A good case can be made that since space operations are an essential enabling technology for all modern military forces, the peaceful uses clause of the treaty has already been rendered, in effect, null and void." In that case, Dinerman should present his good case; I suspect that he cannot. The use of military communications satellites, surveillance satellites, geodetic satellites, and other enabling technologies for military forces preceded the Outer Space Treaty, and the treaty was never intended to prohibit such uses.

A lot of what Dinerman dredges up is relevant rhetoric about his dislike of the European Union, arms control, the Land Mine Treaty, climate control, et cetera. His review is more about his own world-view than about my work: "The truth is that international law has been losing its legitimacy for decades." From this premise, it is clear that Dinerman has no object other than to cast doubt on the legitimacy of any work on the subject of international law that does not conform to his opinion.

There is no "racial put-down" in my book, and Dinerman's misrepresentation is nothing other than a pathetic attempt at character assassination by playing a “race card,” for it is scarcely conceivable that he could have failed to recognize the allusion to Rudyard Kipling's infamous "white man's burden" justification for subjugating and exploiting non-Europeans. Dinerman's purpose is further revealed by his likening my views to those of "slaveowners of the Old South." This is despicable.

The most open-minded statements in Dinerman's review are "Gangale may have the law on his side" and "He may be right." Perhaps this is what frightens him. But I may also be wrong; one cannot embark on any worthwhile intellectual journey without assuming that risk. Most frightening of all must be the fact that I am an apostate; I put my blind faith in thirty years of propaganda against the Moon Agreement… until I made a thorough study of the agreement and its associated documents. I found these, and the arguments in favor, to be overwhelmingly persuasive, while the arguments against ranged from manifest misinterpretations to monstrous distortions. I did not set out to vindicate the agreement, but that is where the data led me.

I invite any serious student of international space law to make his or her own voyage of discovery, and to engage in thoughtful discourse. I wonder when the citizen pro-space community will undergo a Reformation and challenge the orthodoxy of the self-anointed priestly class that presumes to hand down Truth from on high. It is the province of every person who prizes free intellectual inquiry to ask, "What is Truth?" For me, it is a journey, and certainly not a predetermined destination.