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Guest: Dr. Mark Sundahl; Topics: Outer Space Treaty (OST), space law issues, space regulatory concerns and needed clarifications. Please direct all comments and questions regarding specific Space Show programs & guest(s) to the Space Show blog which is part of archived program on our website, www.thespaceshow.com. Comments and questions should be relevant to the specific Space Show program. Written Transcripts of Space Show programs are a violation of our copyright and are not permitted without prior written consent, even if for your own use. We do not permit the commercial use of Space Show programs or any part thereof, nor do we permit editing, YouTube clips, or clips placed on other private channels & websites. Space Show programs can be quoted, but the quote must be cited or referenced using the proper citation format. Contact The Space Show for further information. In addition, please remember that your Amazon purchases can help support The Space Show/OGLF. See www.onegiantleapfoundation.org/amazon.htm.
We welcomed back to the program Dr. Mark Sundahl to discuss the Outer Space Treaty (OST), in particular several of its articles that are the subject of congressional hearings and commercial space interest. During our 90 minute one segment discussion, we started out talking about the OST and the need for clarification with the regulatory process for operating in space. As you will hear, there is a gap between the launch and the return of the vehicle. What happens within that space can be confusing. Even commercial companies are asking for a light touch regulatory clarification process. Our guest talked about this being an issue in recent congressional hearings with both the House and the Senate. Furthermore, each body has proposed legislation in this area which Mark described so don't miss what he said. We talked about the benefits of regulation for industry as opposed to having no regulation which we also talked about since there are commercial space interests that oppose all regulations. Again, don't miss this discussion.
Another topic related to this subject had to do with jurisdiction. Would regulatory jurisdiction remain with the FAA or be handed over in part to the Department of Commerce as suggested in some of the proposed legislation. Mark also talked about current regulatory issues where the FAA has been issuing guidelines but with reservation due to the lack of clarity. Mark said the FAA was not comfortable with the scope of authority in some areas and has made a point of saying that. Later in the discussion, a listener asked about Article 6 compliance around the world with other space agencies and organizations. Note that our guest said there were no guidelines, no standards and that the field can be a black box. Before leaving this discussion, listeners raised questions about compliance, who might be a complaining party, and enforcement provisions.
The subject of international law came up. This turned into quite the mini discussion as to the importance of international law, not just in space but across the board. This prompted a call from Dave Huntsman on several issues, including some of the fall out to the 2015 commercial space law act that granted somewhat quasi-U.S. property rights regarding deep space mining. Many international organizations, space attorneys, and other did not like that and still make their objections known. Mark and Dave had a most interesting conversation on this issue plus others including what is going on in Luxembourg and the UAE so don't miss it.
Next, we went over to Article 9 of the OST on planetary protection. Mark talked about sterilizing spacecraft, contamination issues but keeping things in balance. One point he made was that if the costs for compliance were out of kilter and not economic, a problem would exist. This led me to ask him about Article 9 not being self-executing as we have heard from other space attorneys on The Space Show. Mark disagreed with those that say Art. 9 is not in force because it has not been executed by Congress and the president. Listen to what he said in response to this question. His perspective is different from what we have heard from others talking about this issue.
We asked Mark about the need to clarify the OST on weapons in space. This opened up a discussion about space weapons in space and on Earth, war, self-defense in space and related topics of non-aggression and treaty enforcement. Mark said if an Act of War took place, that would have nothing to do with the OST and would be applicable under other treaties and UN documents. Don't miss this discussion.
Before the show ended, we talked about space property rights. Mark thought the issue was resolved with work arounds. While one would not have a deed, one could hold the "land" while using it to produce commercial revenues. They can occupy the land and they would have exclusive use under the existing treaty. The enforcement of the non-interference clauses in the treaty were discussed so don't miss how this would play out in the treaty. He talked about the need for international cooperation in this area and said the treaty required it.
As the show was ending, James asked him about his law students and their interest in commercial space law. Mark said it was growing and mentioned new programs for space law being developed by both his law school and himself. This seems like a good time to be a law student with an interest in commercial space law.
Please post your comments/questions for Dr. Mark Sundahl on TSS blog. You can reach Mark through his faculty page or me.