Space and Cyber Law: Continued Discussion of Property Rights

Lest I start my career with an unresponded-to accusation of laziness, I would like to address some of the points made in Mr. Simberg's response to my last post.

Setting aside what I think is an unfair accusation of disingenuity, this is simply wrong. The legislation makes no ?promise? to not take military or other action. It simply refuses to promise to do so. As I note in the paper, how the U.S. government would respond to a transgression against a recognized property owner, or whether it would, is completely unspecified by the proposed legislation ? it would be a political decision taken at the time of the encroachment. For the government to recognize the right of an owner to lunar real estate is no more an ?appropriation? or declaration of sovereignty than is our recognition of Israel or Taiwan?s right to exist. Surely Mr. Dawson isn?t saying that our stance toward those two nations represents a declaration of sovereignty over them?

First, the promise not to take military action to which I was referring concerned the party with the rights the US would be "recognizing."? Meaning, through the legislation the US would be promising not to challenge the rights of the private company.? I was not addressing the part of the legislation stating that the US makes no pledge to defend the private company.? Second, I would say that the US' position on Israel and Taiwan's right to exist is a clear indication that the US recognizes those States' sovereignty over their respective territories.? In the same way, recognizing the property rights of a foreign company could be recognition of the sovereignty or appropriation of that land by the company's State.? Mr. Simberg also suggests that the legislation does not purport to grant rights:

Again, there is confusion here. The legislation does not provide a way for the the U.S. to ?grant? a property right ? it cannot do so without a sovereignty claim, which would be a treaty violation. It simply requires that such a right be recognized by the U.S. government.

?It is unclear to me how a right that has not been granted can be recognized.? Furthermore, Section 4(4) of the proposed legislation reads:

Recognized ownership of land under this law shall include all rights normally associated with land ownership, including but not limited to the exclusive right to subdivide the property and sell portions to others, to mine any minerals or utilize any resources on or under the land, as long as it is done in a responsible manner which does not cause unreasonable harm to the environment or other people

?It is equally unclear to me how the US is defining the rights it is not creating, but simply recognizing.? Mr. Simberg went on to discuss my concerns that if acting alone, the US would be put at a disadvantage:

First of all, the legislation does not propose that this be done unilaterally ? it explicitly calls for the State Department to negotiate with other nations to get agreements of reciprocity. And it would not at all ?require? the U.S. to ?recognize the appropriations of outer space by other nations.? In fact, it is just the opposite. The legislation is very clear about what the U.S. will recognize and under what conditions, and one of them is that it not be a national sovereign claim. I have to wonder if the critics of the proposed legislation have actually read it, or if they take the Eric Holder approach to legal analysis?

?Section 9 of the proposed legislation certainly urges other nations to take similar actions.? It even goes so far as to guarantee the protections of the law to countries that offer similar protections, through legislation or international agreement, to US citizens.? However, there is nothing that would require that the country offer such protections.? Therefore, the risk of the US ultimately proceeding unilaterally still exists.? And yes, Section 3 limits applicability of the legislation to those companies and individuals that are not controlled by any sovereign State.? This would not stop another State from arguing that the US' recognition of the rights of one of its private companies constituted recognition by the US of that State's sovereignty over the land in question.? Such recognition, it could be argued, would be a necessary first step to recognizing a land right if the US was not purporting to grant the right itself.? Given the sometimes vague nature of the outer space treaties, I believe it to be disadvantageous to provide this opportunity.

I would like to thank Mr. Simberg for taking the time to respond to my first post.? One of the most redeeming qualities to blogging, I find, is that it allows the opportunity for faster and fuller debate than does the slow exchange of published papers.

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