Highway to the Danger Zone: United States Legislative Framework Regulating the Commercial Space Sector

The last decade has been witness to a rapid rise of the commercial space sectors of many countries. This development offers myriad prospects for the development and exploration of outer space, but simultaneously poses threats to the international community if not regulated properly. The potential dangers of outer space activity were recognized by both the United States and the former Soviet Union in the midst of the Cold War, which led to the concretization of the international legal regime regulating outer space activities. However, without the enforcement of these legal standards at the municipal level of the state, this regime is ineffective. Therefore, it is an imperative that all states with a commercial space presence develop national space legislation that appropriately incorporates international standards. The U.S. space legislation is, at present, the most robust legal framework which addresses many of the necessary concerns. At the same time, in attempts to promote the growth of its space sector, the U.S. regime regulating commercial space ignores some of the standards developed in the international regime. The critical evaluation of the salient features of the U.S. legislation undertaken by this article serves as a guide for many states seeking to develop their own legislation regulating the commercial space industry. It serves as a guide to adopting comprehensive standards of protections provided for in the U.S. legislation and the International Law Association’s “Model Law on National Space Legislation,” but also cautions against the dangers of weaponization, poor environmental protection, and exposure to international liability. A thorough legislative framework that adequately balances economic, strategic, and political concerns with accepted legal principles of international law is essential to prevent commercial space activities from becoming a “highway to the danger zone.”     

Viewpoint: Space System Negation in the Context of Space Policy and Law

For 21st century warfare, space is the unquestioned new high ground for military operations. The United States (U.S.) has relied on satellites for significant support to military operations and activities since Desert Storm in 1991. Indeed, the U.S. enjoys an asymmetric advantage in modern warfare utilizing our space capabilities. States with interests hostile to the U.S. believe that the significant dependence on space assets by the U.S. military could become its “Achilles heel” in future combat operations. What are the legal and policy bases for the U.S. to respond to threats to space systems that provide support to our military forces? Should the U.S. rely on space arms control initiatives to ensure security in space? This Viewpoint analyzes the international space law regime and U.S. National Space Policy framework applicable to the conduct of military space operations and activities, including the use of force in space to protect and defend our satellite networks as well as our military forces.     

Export Controls and United States Space Power

This article assesses the impact of export policy on 21st century United States space power. The efficacy of current export controls in preventing the proliferation of space technologies and maintaining United States advantage is evaluated. The study finds that space launch technology has been and remains highly globalized; the United States has lost significant international communications satellite market share, but it maintains a tangible lead in position, navigation, and timing systems; and the recent growth in foreign imaging systems, both radar and optical, have eroded any advantage the United States once enjoyed. Furthermore, export controls have not appreciably slowed the internationalization of space and breaking dependency on the United States is a common underlying theme. The paper goes on to highlight the unintended consequences stemming from current policy, including limiting access to advanced technology of foreign origin, limiting access to foreign-born expertise, and adding “fog” and “friction” to the execution of programs that include foreign content. This paper finds current export control policy is incongruent with 21st century space power programs and initiatives, such as Operationally Responsive Space, Coalition Space, and “Soft” Space Power. Export control reform is suggested herein on the basis of developing a trusted community of trading partners.     

A practical analysis of shared‐appreciation mortgages

Abstract

When the development of large‐scale public housing projects was discontinued in the 1970s in both Canada and the United States, the policy response was very different. This article reviews the nature of the dissimilar low‐income housing policy paths, documenting the role of federal housing policy in the evolution of a significant nonprofit “third sector” in Canada's housing system; the decision of the U.S. federal government to rely on the private sector for subsidized rental supply; and, with very little help from the federal government, the ‘bottom‐up” attempt to develop a nonprofit housing sector in communities throughout the United States. In Canada, a permanent stock of good‐quality, nonprofit social housing was created along with a growing and increasingly competent community‐based housing development sector.

The Canadian experience demonstrates that it takes time to build the capacity of the nonprofit sector. The U.S. experience demonstrates that there is a great deal of community‐based talent ready and willing to provide nonprofit housing if reliable and adequate funding is available. Canada has made outstanding progress relative to the United States in the area of affordable housing supply, creating yet another small but significant difference in the quality of life for lower income households. The general Canadian approach to consistent national support of nonprofit and cooperative housing can be applied in the United States. Canada's relative success is not based on unique structural or systemic differences—that is, it is a matter of political choice and political will. The United States should look to Canada's 20‐year experience to determine whether some of the mechanisms used to support Canada's nonprofit sector might be transferable to the United States.     

Access to Space: A Strategy for the Twenty-First Century

The United States (US) launch infrastructure is at a crisis point. Human access to space embodied in the Space Shuttle is due to be phased out by 2010. Currently, there are no heavy lift, 100 ton class launchers to support the US national vision for space exploration. Medium and large expendable launch providers, Boeing's Delta IV, and Lockheed-Martin's Atlas V Evolved Expendable Launch Vehicles are so expensive that the Delta no longer carries commercial payloads and the Atlas is unlikely to show significant growth without equally significant cost reductions and commercial traffic growth. This set of circumstances questions US dependence on these launch vehicles for national security purposes. High cost growth also exists with small launch vehicles, such as Pegasus, and the promising new field of small and microsatellites is little developed in the US, while foreign efforts, particularly European, are expanding largely on the availability of low-cost Russian boosters. One bright point is the emerging private sector, which is initially pursuing suborbital or small lift capabilities. Although such vehicles support very limited US Department of Defense or National Aeronautics and Space Administration spaceflight needs, they do offer potential technology demonstration stepping stones to more capable systems needed in the future of both agencies. This article outlines the issues and potential options for the US Government to address these serious shortcomings.     

Legal Issues of Satellite Telecommunications,The Geostationary Orbit,and Space Debris

Satellites are the best means for a rapid expansion of telecommunications services nationally and globally. However, the level of that expansion is greatly determined by the availability of the two indispensable tools for satellites, which are orbital positions and radio frequencies. Growing demand for geostationary orbital (GEO) slots and radio frequencies by a rapidly increasing number of commercial satellite operators and expanding dependence on satellites for military purposes give rise to shortage of slots and spectrum to allocate as well as an increase in satellite interference. Concurrently, increasing space activities and anti-satellite (ASAT) tests are generating man-made space pollution, particularly space debris, and consequently are making the use of outer space more expensive and dangerous. The problems shortage of appropriate orbital positions, satellite interference and space debris are serious. Unless resolved in a timely fashion, they would pose significant barriers and dangers to all (civilian, commercial and military) satellites and could result in denial of access to space in practice by all states. This paper first describes the current situation of shortage of GEO positions and increase in satellite interference. Secondly, current international regulatory regime governing the access to and use of these tools has been analyzed with a view to highlight the weaknesses therein. Thirdly, the problem of space debris is discussed with a view to show how difficult it is becoming to carry on space operations and how important and urgent it is to have an appropriate legal regime in place. Finally, a few recommendations are made emphasizing the need for international cooperation in order to strengthen the international regulatory regime so that the required telecommunication services remain readily available to all and outer space remain pollution-free environment to be used for and by all states.     

International social security agreements: the U.S. experience

International social security agreements are advantageous both for persons who are working now and for those whose working careers are over. For current workers, the agreements eliminate the dual contributions they might otherwise be paying to the social security systems of both the United States and another country. They also favorably affect the profitability and competitive position of American companies with foreign operations by reducing their cost of doing business. For persons who have worked both in the United States and abroad, and who are now retired, disabled, or deceased, the agreements often result in the payment of benefits to which the worker or the worker's family members would not otherwise have become entitled. Credit for social security coverage the worker earned in the United States and the other country can be combined, if necessary, to meet eligibility requirements, and partial benefits can be paid by one or both countries. Because international social security agreements benefit both workers and employers, the agreements program is supported by organized labor and the international business community. Since the first agreement was signed 15 years ago, every Presidential administration has endorsed the program. In view of this support, and the fact that the agreements enhance the image of the United States as a socially progressive member of the international community, it is expected that totalization agreements will be concluded with additional countries in the future.     

Development of the Natural Resources of the Moon and Other Celestial Bodies: Economic and Legal Aspects

The path of gradual commercialization of current space applications, such as launch services, satellite communication services, direct broadcasting services, satellite remote sensing and navigation services, and satellite weather monitoring services, will most likely be followed by future activities of use of space resources. Ventures, like mining the natural resources of the Moon and asteroids, are likely to become technologically feasible in the near future. The question is what would be the most appropriate approach to address the future needs of exploitation of space resources: should it remain the exclusive province of state governments; should the private sector take over such space activities; or should a public-private partnership type of venture be encouraged? As state governments are becoming constrained by budget deficits, an increased reliance on private sector involvement in space activities involving the extraction and use of space resources is to be expected. When deciding whether to invest in commercial ventures of resource use exploitation, any potential private investor will be faced with the issues of economic costs, risks, and perceived regulatory barriers. This study argues that the perceived regulatory barriers, i.e., the licensing requirement, the “common heritage of mankind” principle of international space law, and protection of intellectual property rights, are not obstacles to economic development. Governments should provide both policy and regulatory incentives for private sector participation in the area of space natural resource use by funding basic research and development and by sponsoring liability insurance for private ventures among other incentives.     

Space Weapons: Alternatives for Today

The massive budgets for U.S. military space and missile defense represent the beginning stages of a new arms race in space. But with the United States facing record budget deficits and record defense spending and with the international community expressing increasing concerns about the weaponization of space, the next administration faces some real questions about how hard it wants to push for new attack weapons in space.

No matter how the upcoming U.S. presidential election turns out, the next administration faces dilemmas with respect to the lack of a justifying threat, the technical difficulty and cost of placing weapons in space, how far its international partners want to go with missile defense and with weapons in space, and, finally, the type of international negotiations in which it is willing to engage. Each of these situations creates alternatives for today, alternatives which the next U.S. President will confront and the international community can and should engage.     

Viewpoint: Bureaucratic Politics and the Case of Satellite Export Controls

The export control regime applied to commercial satellites in the United States (U.S.) is not rational suggesting that the desired policy outcome of this regime is not met. The regime under review is the International Traffic in Arms Regulations. Commercially available technologies were placed within this regime to make sure that such technologies do not harm U.S. national security interests. It is argued in this viewpoint that not only does this regime weaken national security, but it also affects commercial space. The commercial space sector is affected through a cost of compliance with the regime. Discussed herein is the political process of export control and commercial satellites with particular attention to how that process is influenced by bureaucratic politics.     

Law of Space Resources and Operations on Celestial Bodies: Implications for Legislation in the United States

The U.S. assertion of a right to own resources harvested from space is consistent with the distinction in international law governing analogous res communis areas between resources harvested from a common area and the common area itself. Under the Outer Space Treaty regime, private entities do not have any more right to appropriate celestial bodies than governments do. However, U.S. law does not give private entities such a right. The U.S. Commercial Space Launch Competitiveness Act’s chapter on Space Resource Commercial Exploration and Utilization generally avoids taking a position on exactly how to deal with disputes in the event the activities of entities from the United States and other states interfere with each other. The U.S. law does not assert a right to declare safety zones or otherwise exercise jurisdiction outside space objects, but doing so can, under some circumstances, be consistent with international law. Many of the specifics of what rules will govern the gathering of space resources remain undetermined, yet the act’s basic premise is correct: international law and the treaty obligations of the United States allow for the U.S. government to authorize its citizens to own resources obtained from space.     

A European “Equivalent” to United States Export Controls: European Law on the Control of International Trade in Dual-Use Space Technologies

This article analyzes the system developed within Europe, more precisely within the European Union through European Community law, to address the security-sensitive issues involved in the export of hardware, software, and knowledge for the purpose of space activities and major space applications. The subject is introduced with reference to the far better known export control developments within the United States, such as those concerning International Traffic in Arms Regulations, and the international understandings under the Missile Technology Control Regime and Wassenaar Arrangement. European Community Regulations for export controls provide for a complex system of balances between national sovereignty and Europe-wide harmonization. This European Community regime, though ultimately still dependent upon individual state's sovereign controls, establishes an interesting measure of international harmonization in security-sensitive export controls. Although the European Community regime is fraught with many complexities, it manages to avoid some of the pitfalls evident in the United States and international regimes, notably the confusing discussions on discerning weaponry proper from other space items with dual-use potential. This is the result mainly of an approach characterized by a primary intention to harmonize, rather than to apply strict controls per se, resulting in a transparency and consistency that are not only valuable to commercial entrepreneurs, but also to those concerned primarily with the security risks posed by the international space industry. As for the space industry in particular, it is helpful that the European Community regime specifically carves out civil space activities, for example if conducted within the context of the European Space Agency or national space agency activities.     

The Brazilian Space Industry: Geostationary Satellite of Defense and Strategic Communication Program

Autonomy in satellite communications is a major defense issue for peripheral countries, a problem increased by the difficulties in investing in the construction, launching, and operation of satellite platforms. Indeed, the objective of the present article is to evaluate the Geostationary Satellite of the Defense and Strategic Communication Program as a starting point for the Brazilian space industry, a subsector of the aerospace industry. Thus, the article evaluates the opportunities this program generates for a dormant sector in the country. The goal-attainment model is used to assess whether the policy attained what it prescribed and the impacts of those achievements. In addition, the side-effects model is applied to verify the opportunities prompted by policies and private sector investments outside the determinations of the main regulations and how they help to strengthen the Brazilian space industry. Finally, the article concludes with a discussion of the current situation of the Brazilian space industry and defends the main argument that the creation of Visiona as an integrator company, responsible for contracting firms to execute the satellite project, is of strategic importance for the Brazilian space industry.     

Chinese Capabilities as a Global Space Power

Since the early 1960s, China has been enhancing national power and, in this regard, Chinese space capabilities play a pivotal role. Today, China is second among spacefaring counties, behind the United States, as a measure of human spaceflight, as well as in commercial and military satellite systems. Chinese space technology, in contrast to developed nations, is comparatively cost-effective; China is sharing it with developing nations for their space programs, consequently expanding the pool of spacefaring states. Most significantly, China’s nuclear, military, and space capabilities provide it with an opportunity to reassert itself as a global power, enhancing its strategic outreach and preventing adversaries from contemplating strategies against it.     

U.S.-India Space Partnership: The Jewel in the Crown

The new strategic partnership between the United States and India is creating opportunities for security cooperation. A key element in this partnership—U.S.-India space cooperation—will most likely become the defining relationship for international space cooperation around which other space-faring nations will posture. The Indian space program is rapidly developing world-class capabilities and presents itself as a worthy partner. The U.S. space program should be able to provide innovative ideas for fruitful collaboration. Despite these propitious circumstances, there are potential obstacles of cost, security, and risk. The biggest obstacle, however, might simply be bureaucratic intransigence and inertia. The opportunity is here, now, for the United States and India each to add an important new jewel to their crown of international space cooperation activities. Most importantly, this new space partnership should enhance the security and prosperity of the United States, India, and the world.     

European Union Space Initiatives: The Political Will for Increasing European Space Power

The European Union (EU) is the newest actor in the European space sector and is cultivating the political will to make Europe a world class space power comparable to the United States (US). The Galileo satellite system and the Global Monitoring for the Environment and Security space program are the most visible manifestations of this will. This article suggests that Europe can approach comparable space power if capabilities are considered rather than just budgets. The paper discusses the catalysts driving EU space initiatives, and assesses the EU's nascent European Space Policy and European Space Program, and EU organization and funding for space. Of importance are the asymmetric means for Europe to increase its space capabilities and the implications this has for the trans-Atlantic relationship with the US. The analysis is directed to the security, civil, and dual-use space sectors within the security aspects of EU space initiatives. This article also provides a baseline to track changes in EU space policy, organization, and funding dynamics.     

Protection of Commercial Satellite Communications Infrastructure

Although a nation's interest in protecting its commercial assets in space would seem obvious, the task of protecting commercial satellites is inherently complicated. Protection of commercial space infrastructure requires coordination among multiple actors in the public and private sectors. Although most public sector actors ultimately report to the same political leadership, the process of establishing coherent policies across agencies can take time. Coordination is even more complicated in the private sector, where multi-national firms compete against each other for profits by serving a wide range of customers.

Given the complexities of this process, it is not surprising that efforts to protect commercial satellite communications (SATCOM) networks have been slow in coming. At the same time, recent progress in the U.S. may pave the way for a more coherent approach to commercial SATCOM protection. If successful, these efforts can provide increased assurance of uninterrupted satellite connectivity, thus benefiting the economic and national security interests of America, its allies and its trading partners.     

Challenges of Local Ownership: Understanding the Outcomes of the International Community’s ‘Light Footprint’ Approach to the Nepal Peace Process

This article investigates whether a ‘light footprint’ approach to peacekeeping and peacebuilding by the international community more effectively addresses local drivers of conflict than the dominant model of large, multidimensional peace operations. It considers international engagement in the Nepalese peace process through the United Nations Mission in Nepal (UNMIN), and argues that the international community’s approach to local ownership became more focused on non-imposition and therefore less politically engaged over time as a result of both local and international factors. This facilitated local elite ownership of the process, which fundamentally undermined the international community’s capacity to support peace consolidation as elites moved away from key transformational pledges of the peace settlement.     

Viewpoint: China and Space War

In January of 2007, China knocked one of its weather satellites out of orbit, and threw the international community into panic. Some figured the satellite-killer test was the harbinger of a future war in space that could cripple a technology-dependent United States military. This viewpoint examines the possibilities of a Chinese assault on American satellites.