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.