Justice Scalia, the Constitution and the Outer Space Treaty

It is with sadness the passing of Justice Antoine Scalia and with it one of the longest serving and perhaps most vigorous justices on the U.S. Supreme Court. Having met the man when he came to my law school for a visit during my first-year of law school, I was impressed with him not only for his Constitutional reasoning but his candor not only when he spoke both orally and through his opinions. Justice Scalia was a constitutional originalist meaning he read the Constitution in the context of the original intent of the framers, which was an antithesis to many of his colleagues on the high court, and provided for a much needed ideological balance.  Yet, for all the jurisprudential clashes Justice Scalia had with his colleagues on the Supreme Court over the divide of originalism, his sharp opinions were directed at the jurisprudence of his colleagues and not at them personally.

What is little known as an appellate judge on the DC Circuit of the U.S. Court of Appeals, then Judge Scalia had an opportunity to interface albeit briefly and indirectly with the jurisprudence of outer space law and in particular the Outer Space Treaty. In Beattie v. United States, 756 F.2d 91 (D.C. Cir. 1984), the United States Court of Appeals for the District of Columbia Circuit had to decide in part whether it had jurisdiction to hear a claim for tort pursuant to the Federal Tort Claim Act (FTCA) that arose in Antarctica.

The Court when questioning whether it had jurisdiction over a claim that had its origin in Antarctica referred to Article VIII of the Outer Space Treaty and recognized that:

The legal status of Antarctica has been most frequently analogized to outer space. United States spokesmen suggested the 1959 Antarctic Treaty as a possible model for an outer space treaty during initial formulation discussions in 1965 and 1966. Obviously, the provisions of a treaty relating to outer space are only relevant to the present case by analogy. However, they are instructive as to the way in which the United States has acted with reference to sovereign immunity and liability for acts of its agents in a context very similar to Antarctica.”

The Court continued its jurisdictional and venue analysis noting:

The [Outer] Space Treaty is obviously not couched in terms of tort claims. However, the basic principle is that in the sovereignless reaches of outer space, each state party to the treaty will retain jurisdiction over its own objects and persons.”

Then Judge Scalia wrote a lengthy dissent in Beattie not focusing on whether the Court had jurisdiction or venue, but on the issue whether the FTCA applies to acts or omissions occurring in Antarctica. Judge Scalia effectively argued his view the FTCA does not apply to acts or omissions arising in Antarctica, and his view was eventually held up by the Supreme Court, which overruled Beattie in Smith v. United States, 507 U.S. 197 (1993).

Even though then Judge Scalia only tacitly brushed the jurisprudence of outer space law, it makes one wonder how he would have dealt with interpreting the Outer Space Treaty and whether his originalist, no non-nonsense approach to interpretation of the Constitution would have applied to the interpretation of that accord. As one who ascribes to Scalia’s view of the Constitution, I would dare take the step and say he would. Bear in mind I am not saying the Outer Space Treaty is on par with the standing of the United States Constitution, especially since the latter gives power to the former and not vice-versa.  What I am saying that as one who ascribes to the jurisprudence of originalism in the Constitution, I also find myself looking to the original intent of the Outer Space Treaty when interpreting it.

Thus my conundrum with the “new” interpretation of Outer Space Treaty to justify the private commercial appropriation of extraterrestrial mineral resources  by analogizing the acquisition of those resources to harvesting fish from the world’s oceans. I have discussed my disagreement with this juxtaposition at length in one of my other writings, and will digress from repeating it here. That being said, the Outer Space Treaty is a foundational component of the jurisprudence of outer space law and to effectively discount the original basis and its foundational legal center affronts not only the original intent of that accord but also brings into question its veracity. In other words, if as space lawyers we are willing to ignore the historical beginnings and intent of the Outer Space Treaty to meet a pragmatic end, which effectively flips the Outer Space Treaty on its head, to what length will we be willing to contort the Outer Space Treaty for other interpretations that do not conform to its original intent.

Regrettably, the Outer Space Treaty appears to be suffering from the same philosophy of the Constitution whereby it is the majority view the Constitution is a “living breathing document” whose meaning changes with time. Much in the same way the Outer Space Treaty appears to be considered a “living breathing document” that is being re-interpreted to create “rights” that were not originally considered as part of the accord when it was drafted. Thus, instead of looking to alternative means to procure “space resource rights” through international accord, the original intent of the Outer Space Treaty is being ignored and reinterpreted to facilitate an end it was not designed to meet. In that case, like originalism, the original intent of the Outer Space Treaty appears to be fading to the minority to meet the conveniences of industry.  However, like the originalism of the Constitution championed by Justice Scalia, just because the original intent of the Outer Space Treaty appears to be the minority position does not make that view erroneous.

In closing, I would like to note an observation by Justice Scalia in a speech regarding the Constitution:

The Constitution is not a living organism.  It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.”

Likewise, the Outer Space Treaty is not a living, breathing organism; it is an international legal document that has the legal standing of a federal statute, which says what it says and doesn’t say what it doesn’t say.  To that extent, the Outer Space Treaty says nothing about allowing the private commercial exploitation of resources nor does it say anything prohibiting it.  Thus, in the case of commercial resource exploitation either way the Outer Space Treaty doesn’t say what it doesn’t say.

 

 

 

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7 thoughts on “Justice Scalia, the Constitution and the Outer Space Treaty

  1. Thank you for your contributions to public discussions on space law. Always interesting.

    However, regarding your stance that the OST disallows ownership of space materials, the original intent of those who wrote the treaty, i.e. primarily the US and the Soviet Union, seems quite clear from their actions at the time and in subsequent years:

    1. As I understand it, early drafts of the OST included a section that would have explicitly assigned a common heritage of mankind tag to materials brought from space to earth. That section was removed from the final draft.

    2. The same spacefaring countries that dominated the OTC later rejected the Moon Treaty, which would have explicitly assigned retrieved materials as common heritage.

    3. Less than 2 years after the OST went into force, Apollo 11 brought back 22 kg of lunar regolith and the US took possession of it as the US did for all the materials returned by the other Apollo missions. It was not declared to be material owned by all mankind.

    4. Similarly, the Soviet Union took possession of the materials returned by the three Luna sample return missions. They were not declared common heritage.

    5. Russia later sold some Luna 16 material at auction. The US has also allowed small amounts of lunar dust to be sold via Apollo memorabilia. (Buy an Alan Bean painting, get some Moon dust from his spacesuit patch that he mixes with the paint.) These may involve small amounts but the principle stands regardless of the amounts involved.

    So the original dominant actors behind the OST rejected in both written law and in practice every opportunity to assign common mankind ownership to retrieved space materials. If Scalia had ever had to address in court the question of ownership of space materials, I strongly doubt he would have ignored the actions of those who wrote the OST.

    Finally, while you may disagree with them, the International Institute of Space Law sees no allowance or prohibition in the OST regarding the ownership of retrieved space materials. I also strongly doubt that Scalia would have taken the position that where there is no explicit allowance, there is prohibition.

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    1. Thank you for your comment. A couple of things:

      1) The Outer Space Treaty is couched in terms of res communis (province of all mankind) and not res nullis (common heritage of mankind).

      2) I am interested to see how a federal court would rule on a domestic case over the Apollo lunar samples. The federal district and appellate courts have ruled on them applying Honduran law, but they have yet to address the issue applying U.S. law, including legal obligations under the OST.

      3) I’ve been openly critical of the IISL “consensus” because that’s all it is; a consensus. It is not a privileged legal analysis nor is it the ruling of court; at most it’s a policy position of non-government organization. Beyond that, the IISL “consensus” is based on a faulty interpretation of what Section 51303 does. Again, until a federal court hands down a ruling, I stand by my analysis.

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    2. One other point to your contention that Scalia would not have taken the position that where there is no explicit allowance, there is prohibition. I recall the federal judge in the Neimtz case noted in the court’s decision that even though the Outer Space Treaty does not explicitly prohibit private ownership that does not mean it allows it. That rationale and the remainder of the judge’s decision was upheld on appeal. However, that case is not published and cannot be used as legal precedent, and it is not to say a different district court and federal circuit would not rule differently. However, the decision in Neimtz at least provides a glimpse of how the federal courts and the Supreme Court aka Scalia might have ruled if it was granted cert and was adjudicated by the Supreme Court.

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  2. “1) The Outer Space Treaty is couched in terms of res communis (province of all mankind) and not res nullis (common heritage of mankind).”

    Thanks, I thought I probably was expressing that incorrectly.

    “2) I am interested to see how a federal court would rule on a domestic case over the Apollo lunar samples…”

    Yes, it would be quite something if a US court ruled that the Apollo lunar rocks were not owned by the US.

    BTW, who has standing to challenge US ownership of the Apollo samples?

    Similarly, it’s not out of the question that in a few years a private company will use an unmanned system to bring back a small sample of Moon rock to the US and start selling slices of it. Who would have standing to challenge the company in US court if the Fed government did not?

    “3) I’ve been openly critical of the IISL “consensus” because that’s all it is; a consensus. It is not a privileged legal analysis nor ….”

    I’m going out on a limb here but I expect this issue will be a popular one in future IISL conferences and journal articles. 🙂

    “… I recall the federal judge in the Neimtz case noted in the court’s decision that even though the Outer Space Treaty does not explicitly prohibit private ownership that does not mean it allows it…’

    In a situation where the treaty neither explicitly prohibits or approves, it would seem to me the actions of the two dominant spacefaring nations that essentially wrote the treaty would be especially important. The treaty they created banned declarations of sovereignty over celestial bodies, yet soon after the treaty went into effect both countries took sovereign ownership of materials they obtained from a celestial body. My guess is that most judges would hesitate to override the interpretations of the treaty by those countries.

    That sovereign ownership of lunar material has lasted over 40 years. Isn’t the length of time a practice has been sustained an important factor in international law as well?

    I’ll also note that the recent commercial space act that included language allowing for ownership of space extracted materials was endorsed by the legal staffs on Republican led Congressional committees and in a Democratic Administration, including the State Department. A judge would have to go against the current (and most likely a future) US government’s bipartisan interpretation of the treaty. Certainly possible but I’d bet most would be reluctant to do so.

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    1. 1) The underlying issue would not be whether or not the US owned the Apollo samples, but rather exactly what is the legal nature of the Apollo sample, e.g. what type of property are they. No one argues that “ownership” of the Apollo samples is inconsistent with the Outer Space Treaty because it is not. The issue of the Apollo samples is not one of ownership, so even the United States government could have standing to seek a declaratory judgment from the federal courts. In the case of the privately obtained materials, any nation that has ratified or acceded to the Outer Space Treaty could have standing for declaratory relief from the U.S. federal courts.

      2) You’re making the assumption the U.S. cannot have ownership of the Apollo samples and be consistent with res communis doctrine of the Outer Space Treaty while at the same time precluding private/commercial ownership. This is a common mistake many make when they assert the Apollo samples are “chattel” (personal use) property; they are not. In other words, it is entirely consistent with the Outer Space Treaty for the U.S. to have “ownership” over the Apollo samples and at the same time forbid private/commercial ownership.

      That being said, the IISL “consensus” is based on a presupposition that Section 51303 does what its proponents says it does; it does not. For all the hoopla over the “bi-partisan” nature surrounding the Commercial Space Launch Competitiveness Act, it goes under-reported the Democrats on the House Science and Technology Committee wanted to hold hearings, bring in experts, etc. to discuss the resource provisions of the bill. The Republicans refused and rammed it though without any hearings or discussions. Thus, the resource provisions in the Commercial Space Launch Competitiveness Act are the result of political lobbying and not a concerted legal effort to create a viable law.

      3) I’ve considered all your arguments in one form or another as they are common. I’ve also considered the issues, and I am confident I could not only dispose of those arguments but also deal with Section 51303 as it relates to the Outer Space Treaty and show it is inconsistent with it. For now I am keeping my powder dry.

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  3. ” In other words, it is entirely consistent with the Outer Space Treaty for the U.S. to have “ownership” over the Apollo samples and at the same time forbid private/commercial ownership.”

    OK, that does surprise me. All other critics of the new law that I’ve come across claim that since the OST forbids a country from declaring sovereignty, which is taken to mean ownership, over any area on a celestial body then neither a country nor its citizens can take ownership of any materials extracted from that body.

    As I understand your interpretation, the Apollo samples don’t belong to the world but like US govt produced public domain information, e.g. Landsat images, the OST allows them to belong to the US citizenry as a whole.

    If that’s true, it brings up some interesting scenarios. Companies can take Landsat images and do all sorts of value added improvements and sell the results even though they don’t own the raw images. Seems like space materials could similarly be declared to always remain in principle in the public domain but private companies could be allowed to process them and add value and resell as they see fit.

    “For all the hoopla over the “bi-partisan” nature surrounding the Commercial Space Launch Competitiveness Act, it goes under-reported the Democrats on the House Science and Technology Committee wanted to hold hearings, …”

    I said it was bi-partisan, I didn’t say it was unanimous. I think “rammed it through” is exaggerated. The final wording of the space mining section did change from the initial version in response to criticism and interaction with the Administration. I’ve seen only positive remarks about the space mining language from the Administration people involved with the bill.

    Anyway, my point is just that there seem to be quite a few space law experts who are neither libertarian nor Republican nor lobbyists for space mining companies who will argue that the OST does not outlaw private ownership of space materials.

    “For now I am keeping my powder dry.”

    I look forward to the legal fireworks. Thanks for taking the time to respond to my amateur legal ramblings.

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