Broadcast 3458 Michael Listner, Space Atty

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Guest:  Michael Listner; Topics:  War as a tool of law, Lawfare and space, state actors compared to the emergence of private actors in space.

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We welcomed back to the show space attorney Michael Listner for a two segment two hour discussion on war as a toll of law, specifically lawfare and its application to outer space.  Note that we read sponsor messages during the midway break between segments one and two.  In addition, I believe it is important to follow along by referencing the Power Point Presentation Michael created for this program which you will find on the blog (archive page for the program).  The PPT is titled "Lawfare: The concept and Its Application To The Outer Space Domain."  We thank Michael for an exceptional document and presentation which I hope all of you will read and use in listening to this discussion.  I would also like to point out that while we followed Michael's presentation, we did not touch on every slide.  On many of the concepts and much of the refence material in the slides, Michael cited examples, sometimes several examples.  I believe it would be challenging at best plus the summary statement would end up being very long so for this program summary, I will touch on highlights and topics, trusting that you will listen with great interest.  Finally, both Michael and I would appreciate your blog comments, even if you want to challenge Michael as he said many time on air, he would welcome your disagreements and challenges.

Michael began the discussion by going back to basic law history, documenting two prevailing views of both the world and law.  He summarized this nicely during the discussion but start at Slide 3 for more information.  As you will he see, Michael was mainly talking about the view of John Locke (The Lockean View) and the view of Thomas Hobbs (The Hobbesian View).  Make sure you get this as these views compete even to today and outer space.  Michael spent sufficient time on relevant world and legal history, even going into detail about freedom of the seas and then extending that to free access to space. Michael does do an exceptional job of connecting this early history to outer space and today so stay with us and do pay attention. 

After time spent with the early history, Michael defined Lawfare though you will find the full working definition starting on Slide 8.  Dr. Doug sent in an email challenging him on the definition as he found another one using Wikipedia.  Michael dismissed the Wikipedia definition and moved forward with his discussion.  A few minutes later, Adrian sent us an email about it not being wise to dismiss Wikipedia.  I read his email on air but Michael had no comment about it. 

Michael talked about the importance of Sputnik which he said was the first outer space lawfare event.  He said, though not intended by the Soviets, that it set the stage for free access of space.  Make sure you listen to the story and why Michael was making the claim about Sputnik being the first lawfare event and establishing free access of space.  This opened a short but very interesting discussion you will want to hear. 

Listener Ben sent us a note inquiring about ASAT weapons and other space weaponry.  Michael talked about ASAT weapons tests, space dominance, even the new Space Force, all in the context of lawfare.  Don't miss it.  Marshall called to suggest lawfare assumes lawyers and politicians do the "right" thing. He referenced WW2 in his discussion.  Michael promoted the Hobbesian view that it was a jungle out there.   This conversation eventually flowed over to China and Russia , the Law of the Sea and China in the S. China Sea with artificial islands and the potential for conflict with the Moon.

Later in the discussion, Paul sent in a note asking if space tourism, space settlement or private businesses operating in space complicated lawfare.  Michael responded for each issues with some pushback, others not being involved and lots of unknowns.  Another listener joined in with an email on the United Nations and the United States, plus the Bogota Declaration came up as an example.  Jurisdictional issues came up plus Michael referenced Starlink issues as probable lawfare issues. 

Listener Gina asked if lawfare was being taught in law schools.  Michael said no but referenced classes and studies on asymmetrical warfare.  Michael then focused on Slide 21 for the Tools of Lawfare which he discussed in detail. Make sure you check out the slide.  Politics was a focus of the balance of the program for both state and private actors.  This part of the program was important so be sure to listen to it.  Michael also talked about the role of NGOs which he termed silent warriors.  Our guest then jumped to Slide 30 with a discussion on the PRC and its use of lawfare as part of its weapons arsenal.  Michael said that our National Security Space Strategy was being revised, the first time since 2011, and he expected to see issues of lawfare in the revision. 

Michael offered us concluding comments plus I asked him to update us on his fine newsletter, The Precis.  You can see a sample of The Precis on is website,  You can reach Michael Listner through me or his website.




using law as a tool of war per Michael's last Space Show visit

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09 Feb 2020 Michael Listner
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