Gabe Swiney on Art. 9

Amanda Berman Author

03/27/2019 Added

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Attorney Gabe Swiney, State Department, discusses Art. 9 of the OST.

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[00:00:01.150]Hello, I'm Amanda Berman.
[00:00:02.300]I'm a second-year law student
[00:00:03.530]at the University of Nebraska College of Law.
[00:00:05.810]Recently, we were awarded a grant
[00:00:07.970]through NASA Nebraska to create a Space Law Network,
[00:00:10.720]and to that end we are recording introductory videos
[00:00:14.300]about space law as it stands today.
[00:00:17.480]With me today is Gabe Swiney of the State Department
[00:00:20.933]to discuss Article IX of the Outer Space Treaty.
[00:00:24.470]Counselor?
[00:00:26.200]Yeah, so hi, I'm Gabriel Swiney.
[00:00:28.720]I'm an attorney advisor at the State Department,
[00:00:30.790]and I cover space law for the State Department
[00:00:34.580]and for the United States Government
[00:00:36.150]on the international side.
[00:00:38.450]What I wanted to talk about was one of my favorite,
[00:00:41.940]I've called it my favorite, but I think right now
[00:00:43.980]it's my favorite article in the Outer Space Treaty,
[00:00:46.220]which is Article IX.
[00:00:47.900]And for those of you who've read it or looked at it,
[00:00:50.880]you'll see that Article IX is actually this big, long
[00:00:54.210]paragraph that includes a whole lot of different elements,
[00:00:57.540]different legal principles trying
[00:00:58.870]to solve different legal problems.
[00:01:00.840]So I really wanna focus on one in particular,
[00:01:03.600]which is the due regard obligation.
[00:01:06.540]But I'll set that up a little before,
[00:01:09.510]before I get to what it actually says.
[00:01:12.760]Those of you who know about outer space
[00:01:14.550]or think about space things, you know that history
[00:01:18.730]has developed a lot in outer space, right?
[00:01:20.880]When United States and the Soviet Union first started going
[00:01:23.580]to outer space 50-plus years ago,
[00:01:25.900]it really was government actors doing big projects
[00:01:29.750]that sort of everyone knew about, right?
[00:01:31.960]Large rockets, hard to hide, sending large payloads up
[00:01:36.080]in predictable, predictable places.
[00:01:38.560]And obviously, that developed over the years,
[00:01:40.280]and we have communication satellites,
[00:01:43.740]remote sensing satellites,
[00:01:46.170]all of which, for the most part,
[00:01:48.080]are doing predictable things.
[00:01:50.290]What I mean by that is they're in an orbit
[00:01:52.530]that typically is stable, right?
[00:01:54.360]They sort of go in a circle wherever they are
[00:01:56.000]in outer space, in geostationary orbit or low-Earth orbit.
[00:01:59.710]And most of them, until pretty recently,
[00:02:01.050]were quite large satellites,
[00:02:03.490]so easy to track, easy to follow.
[00:02:06.920]And the corollary of that is they're easy to avoid.
[00:02:10.300]If you're going up and doing something else,
[00:02:11.590]you can see what else is up there,
[00:02:13.080]and you can predict where they'll be.
[00:02:14.230]And you can avoid that.
[00:02:15.707]And really that was pretty much outer space
[00:02:18.160]for several decades.
[00:02:20.540]With the exception of debris and pieces that would fall off,
[00:02:23.540]the intentional activities in outer space
[00:02:25.660]were pretty easy to,
[00:02:27.640]what military would say, deconflict, right?
[00:02:29.670]It was pretty easy to deconflict operations
[00:02:31.620]between what you wanted to do in outer space
[00:02:33.080]and what everyone else was wanting to do.
[00:02:35.560]That's changing, and what's changing about it is the rise
[00:02:39.900]of all kinds of new things we're doing in outer space.
[00:02:42.910]Some of it has to do with commercial activities,
[00:02:44.980]other has to do with government activities.
[00:02:47.580]So, for example, there are small satellites,
[00:02:50.190]lots and lots of small satellites,
[00:02:52.280]that largely private companies but certainly universities
[00:02:55.800]and governments are also putting up.
[00:02:57.740]They tend to be in low-Earth orbit right now,
[00:03:00.100]but the numbers are huge,
[00:03:01.560]dozens or hundreds of them potentially,
[00:03:03.390]potentially thousands some companies are talking about.
[00:03:06.110]So that seriously increases just the numbers.
[00:03:08.410]And, of course, these satellites, they're small,
[00:03:10.510]so they're harder to see.
[00:03:12.140]And some of them don't have the ability to maneuver.
[00:03:15.060]That is, they can't shift around.
[00:03:17.040]They sort of are where they are and zip around just
[00:03:19.730]according to the laws of gravity and can't maneuver at all.
[00:03:23.660]So that's one change.
[00:03:25.400]There's also at least the potential for new activities
[00:03:28.790]in outer space that we really haven't seen before,
[00:03:31.560]things like mining the Moon or asteroids,
[00:03:35.050]which could potentially cause, you know,
[00:03:37.680]debris flying off from the Moon or asteroids potentially,
[00:03:40.940]depending on what the technology is being used.
[00:03:43.020]Or, at the very least, it would involve some
[00:03:45.890]sort of industrial activity in a location.
[00:03:48.680]Also, the possibility of commercial space stations,
[00:03:52.130]there's companies working on inflatable space stations
[00:03:54.660]or inflatable add-ons to the International Space Station.
[00:03:58.920]And, of course, again, if you're doing something like that,
[00:04:00.870]if you have a hotel in space, for lack of a better word,
[00:04:04.070]you're gonna want some way
[00:04:05.900]to make sure that your people are safe,
[00:04:08.500]that there's no one else sort of showing up uninvited,
[00:04:11.330]or that there's no debris coming towards you.
[00:04:13.940]So these are all different issues,
[00:04:15.180]but what they have in common, in my mind,
[00:04:17.780]is they increase the need to deconflict operations.
[00:04:22.740]Each one of these raises the potential of interfering
[00:04:25.100]with the activities of others in outer space
[00:04:28.140]and/or could be threatened
[00:04:30.640]by interference from other actors.
[00:04:33.260]So I think, for the first time in really 50-plus years,
[00:04:36.860]we're really faced with a situation
[00:04:40.750]where we really have to solve this problem,
[00:04:42.450]or we have to figure out how,
[00:04:44.320]how do my activities not get in the way of your activities,
[00:04:47.130]and what do we do if they do?
[00:04:49.370]So that's the problem, the sort of the technical problem.
[00:04:52.640]The legal tool we have to solve it is what we have
[00:04:55.730]in this 50-plus-year-old Outer Space Treaty.
[00:04:59.320]And fortunately, there is something,
[00:05:01.010]and it's not a principle that we've really used very much
[00:05:03.520]because we haven't had to.
[00:05:04.970]But Article IX does include two provisions
[00:05:07.420]that are potentially relevant.
[00:05:09.100]One is a non-interference principle.
[00:05:11.770]Now, non-interference shows up
[00:05:13.070]in international law in other contexts as well,
[00:05:16.400]Law of Sea and particularly in radio communications,
[00:05:21.090]for example.
[00:05:22.460]But the principle of non-interference
[00:05:23.960]that's in the Outer Space Treaty is quite weak.
[00:05:25.960]It basically says you actually can interfere,
[00:05:27.940]you just need to think about consulting before you do.
[00:05:31.350]So that's not a great deconfliction tool.
[00:05:34.650]But what we also have is a relatively, relatively unique,
[00:05:38.380]although it pops up in other places a little bit,
[00:05:40.900]concept of due regard.
[00:05:42.890]And what the Outer Space Treaty and Article IX says
[00:05:45.710]is that States should conduct their activities
[00:05:48.500]in outer space with due regard
[00:05:50.030]to the corresponding interests of other States.
[00:05:53.470]Now, that's pretty vague.
[00:05:55.620]It doesn't really say specifically
[00:05:57.500]what you should or shouldn't do.
[00:05:59.410]Like I said, we don't have a lot of practice on this,
[00:06:02.100]very little,
[00:06:03.610]at least explicit practice in exercising due regard.
[00:06:07.380]So how that's gonna be operationalized
[00:06:09.690]is sort of an open question, but it is the tool we have.
[00:06:15.250]You know, sometimes, as lawyers,
[00:06:16.480]it's nice to sort of fantasize about
[00:06:19.350]what you would like, what you would like to create,
[00:06:21.120]what kind of rules you would like to create.
[00:06:23.020]I'm sure all of us could design rules
[00:06:25.490]that would be clearer or easier to follow,
[00:06:28.660]but the Outer Space Treaty is what we have.
[00:06:30.330]It's written in very general terms.
[00:06:32.240]I've described it as sort of the constitution of space.
[00:06:35.050]Because, just like the Constitution,
[00:06:36.500]it really talks about principles, not specific rules.
[00:06:40.340]So we have this sort of high-level principle of due regard,
[00:06:43.530]and we don't know exactly what it means.
[00:06:45.760]But I think it does mean a few things
[00:06:47.580]at the very least, right?
[00:06:49.070]One, you have to think about
[00:06:50.690]what your actions are gonna do to others.
[00:06:52.540]You can't just sort of willy-nilly do things
[00:06:54.130]without considering the downstream effects, right?
[00:06:56.790]At the very least, due regard means that.
[00:07:01.130]And if you have to conduct your activities
[00:07:02.810]in outer space with due regard
[00:07:04.120]to the corresponding interests of other States,
[00:07:06.400]there must be something you couldn't do, right?
[00:07:09.350]For this principle to have any kind of legal content,
[00:07:12.770]there must some extreme case, at the very least,
[00:07:15.060]that would violate the principle.
[00:07:16.300]Otherwise, what's the point of having it
[00:07:17.760]in the Outer Space Treaty?
[00:07:19.400]So, at least at the margins, there must be something
[00:07:21.870]we could come up with, hypotheticals, you know,
[00:07:24.410]tossing buckets of nails out the side
[00:07:25.970]of the International Space Station or something
[00:07:28.360]might violate the principle of due regard.
[00:07:31.640]But somewhere in between there, in the spectrum of danger
[00:07:34.940]or potential for conflict in activities,
[00:07:38.630]it must mean something.
[00:07:39.920]So what I think what we should do,
[00:07:41.300]and here I'm gonna speculate and look forward to the future,
[00:07:45.200]what I hope and anticipate will happen is that space actors,
[00:07:49.660]countries, companies,
[00:07:52.440]non-State, other types of non-State actors
[00:07:54.570]such as academics or the nonprofit sector,
[00:07:59.420]should come together and start talking about
[00:08:01.310]what due regard can mean in practice.
[00:08:03.120]And that can mean different things
[00:08:04.150]for different operations, right?
[00:08:05.610]Small satellites, maybe they need to have little reflectors
[00:08:09.010]on them to make 'em easier to be tracked by radar.
[00:08:12.380]Space hotels, maybe we can agree
[00:08:14.480]on some kind of standoff distance.
[00:08:17.250]You know, you can't approach to an inflatable bubble
[00:08:19.730]within five kilometers without course,
[00:08:22.130]without talking with 'em first.
[00:08:23.500]I don't know, the details could be worked out.
[00:08:26.450]I think we could hang all these conversations
[00:08:28.460]on the legal concept of due regard and see them
[00:08:31.300]as implementation of this Outer Space Treaty obligation.
[00:08:34.870]So that's where I hope the international community,
[00:08:37.690]the space community will move in the next few years.
[00:08:39.730]Because we do have a real problem,
[00:08:41.740]and that's the best legal way I know to start solving it.
[00:08:46.220]Perfect, thank you so much
[00:08:47.500]for that overview of Article IX.
[00:08:50.070]We appreciate your time and help with this project.

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Gabe Swiney on Art. 9

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