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Michael Listner, Sunday, 12-13-15 December 13, 2015

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Michael Listner, Sunday, 12-13-15


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Guest: Michael Listner.  Topics: Commercial Space Law, asteroid bill, treaties, 2015 space legal issues and more.  Please direct all comments and questions regarding Space Show programs/guest(s) to the Space Show blog, https://thespaceshow.wordpress.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.  For those listening to archives using live365.com and rating the programs, please email me as to why you assign a specific rating to the show. This will help me bring better programming to the audience.


We welcomed Michael Listner back to the show for the last time in 2015.  During the first segment of our two hour discussion, Michael started the 2015 annual space law review by jumping right in to discussing the new Commercial Space Launch Competitiveness Act recently signed into law by President Obama.  In this segment, he hit on key issues including legal jurisdiction on issues would now be federal law issues, the solidification behind SLS making it harder to cancel the rocket project, and the controversial “property rights” section in the asteroid part of the legislation.  There were many questions for Michael regarding the significance and meaning of issues now falling under federal law.  During this discussion, Michael used legal definitions and terminology and we discussed hypothetical situations to try to understand the impact of federal over state law on issues likely to make it to court.  Michael again talked about the asteroid mining part of the legislation (he did so as well on his last show a few weeks ago) which he believes contradicts the Outer Space Treaty.  Michael carefully went through the legal issues including the incorrect comparison of the Outer Space Treaty to the oceans and the Law of the Sea Treaty rather than a more appropriate comparison to legal regimes regarding Antarctica.  Michael posted a good article on this discussion his blog, Space Thoughts, which you can read at https://spacethoughtsblog.wordpress.com/2015/12/11/section-51303-the-oceans-are-not-the-equal-to-outer-space/.  Later in the segment, listeners asked about domestic vs. international legal enforcement of the asteroid mining issues per the legislation, plus many questions came in about The Outer Space Treaty and even The Moon Treaty came up for discussion.


In the second segment, Michael started out by saying that SLS got a big boost which was supportive of commercial space policy.  Jack asked about commercial crew in the legislation, but our focus moved to the RD180 engine because that is a big deal right now.  Michael said it was akin to open warfare between Senator McCain and ULA.  Michael offered us a detailed explanation of the RD180 issue and how it can impact ULA, SpaceX, and actually impact the nation.  Another topic was the return to flight using the Atlas 5 and the RD181 engine for the Cygnus by Orbital ATK.  BJohn and later Freemont John inquired about nuclear propulsion and some of the things discussed in the recent program with Dr. Dewar. Another topic discussed was planetary protection which he said gets its authority from Article 9 of The Outer Space Treaty.  Before the program ended, Michael gave us a status report on The Code of Conduct, the suborbital industry, and the Moon Treaty.


Please post your comments/questions on TSS blog above.  You can reach Michael through me or his blog.



1. B John - December 17, 2015

Micheal, if you visit here again and see this naive question:
Is the surface of Mars legally to be considered to be “space”? At Earth, space begins at 100 km altitude, right? For airless bodies, space goes all the way down to the surface, but Mars’ surface is not “space” anymore than Earth’s surface is “space”. How is space actually defined or interpreted legally? Completely geocentrically?

Michael J. Listner - December 17, 2015

Hi B John,

Thanks for the great question. To answer your question, “outer space” is indeed considered from a geocentric viewpoint. Moreover, there is no internationally recognized delimitation for when the atmosphere end and outer space begins. There is an unofficial recognition of space beginning around 100 km (60 nautical miles); however, when you take into account the affect of solar activity on the atmosphere. For example, when solar activity is high, the atmosphere expands because of thermodynamics and when solar activity is low, the atmosphere contracts again because of the same physical laws. Because of this, where the atmosphere physically ends and outer space begins is not a static.

There are other reasons for not succinctly delaminating the boundary, which have to with national security and sovereignty. Notably, this has been an issue since the beginnings of space law and continues to be so. I would also mention the Outer Space Treaty puts outer space in a geocentric perspective as well. Consider this paragraph from Article I of the Outer Space Treaty:

“The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”

It is express in the Outer Space Treaty that outer space and its free passage principles include the moon, the planets, the asteroids, etc.

Thanks again for the question.

2. J Fincannon - December 16, 2015

Mr. Listner,
Good show as always. Its always good when Dr.L has guests with lots of enthusiasm and information.

I always worry about the planetary protection laws, maybe I am an astrobiologist at heart. I am glad to see it covered with the Outer Space treaty, but wonder if it makes any real difference. Look at Apollo. Obviously they contaminated the Moon and had only a fig leaf of protection from bringing back “contamination”. No test animals were landed and returned. With all the ‘Humans on Mars” talk, the impact of humans on Mars life is brushed aside with “keep out zones”, as if you can keep out the wind or dust being carried from outside the zones. And humans returning to Earth? Its all safe, just like Apollo. 😉
And that is NASA, Elon Musk and others have their own ideas.

I know lawyers love laws and regulations, but does it really prevent disasters such as planetary contamination? Musk wants laws/regulations about AI. I am sure others want the same for nanotechnology, genetic engineering/modification, weather manipulation, you name the latest tech (while nuclear reactors have been regulated to rarity, I like how basement fusion reactors are “legal” https://en.wikipedia.org/wiki/Fusor). Bad actors will not be restrained by laws/regulations so will gain advantage. Its like gun control, make guns illegal and only the criminals will have guns.

So my question is how does society enforce these laws/regulations to assure the bad actors don’t mess everything up. The “Courts”? Embargo? Military force? Or why do we bother with the laws or regulations in technology if a level playing field cannot be attained?


Michael J. Listner - December 16, 2015

Hi James,

I am pleased you found the Show useful. I’ll address your questions:

First, the portion of Article IX that gives the Office of Planetary Protection its mandate reads as follows:

“States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose.”

Note the term used is “harmful contamination” and not just “contamination”. Of course, there is no international legal definition of what “harmful contamination” means, but a rule of thumb might be any contamination that adversely and permanently alters an extraterrestrial environment. Thus, with your example of the Apollo, arguably there was “contamination” what with the excess fuel from the decent engine being vented, trash from the astronauts time on the Moon, including human waste and other trash, RTGs with their encapsulated plutonium. Debatably, what was left over by the Apollo missions did not reach the level of “harmful contamination” in that did not permanently alter the lunar environment.

Conversely, let’s say for example a Mars rover intended to explore a source of water is not properly decontaminated and as a result ends up introducing Earth microbes into the Martian environment. That contamination could end up being harmful if the microbes adapt to the Martian environment and contaminate an otherwise lifeless water source on Mars.

I wrote a blog post about this in response to a silly Quartz article a few months ago. Here is the link. https://spacethoughtsblog.wordpress.com/2015/10/01/addressing-media-missteps-about-the-outer-space-treaty-and-water-sources-on-mars/

Second, don’t presume all lawyers love regulations. Some of us (myself included) believe in regulation to act as guidance. That being said, enforcement in the international arena and specifically with the Outer Space Treaty is a little intricate. First, international law as it relates between the actions of States is difficult to enforce because treaties seldom have punitive measures and because of State sovereignty, which is protected under the UN Charter, treaties are open to interpretation. However, there is the potential of political action and bad public relations that tend to come into play to deter States from acting contrary to international law. Does that answer your question?

J Fincannon - December 17, 2015

Yes, it does clear up some questions I had and confirm some suspicions.

Still, with Apollo, Sagan clearly said and provided analysis to back up his contention that penetrating the surface of the Moon fairly deeply could provide a contamination source to affect existing life (if it existed) that lived below the surface in conjectured habitable zones (possible liquid water, constant temperature, radiation shielding). When the astronauts pounded and cored out their 2.4 m core samples, this provided an opportunity for contamination. Yet, Apollo proceeded to gather core sample.

Early missions to land robots on the Moon were seriously affected by trying to decontaminate the vehicles prior to landing. They ultimately gave up trying to do that and arm waved that the Moon has no life and can support no life.

And the way they brought back the astronauts to prevent them bringing a pathogen back was embarassing. Sure it worked, but it may not have and wasn’t that what the treaty clause all about? To prevent some country from causing a catastrophe. Before bringing astronauts back, I think they should have tested the system with animals.

For Mars, I suggest they are going to the same as with Apollo. Despite the fact that there are winds that can carry contaminates across the surface of Mars or that there may be subsurface aquifers that can carry contaminates 100’s of miles with unknown access points at the surface, they will proceed. And, the possibility of dormant pathogens (like the prions of Mad Cow disease) sitting in astronauts for decades before appearing cannot be ruled out with a 1 year quarantine (or especially the 3.5 day one for Apollo).

So it appears that regardless how laudable a law or regulation is, the politics and other spins to the topic make them pretty ineffective. Too bad!

Michael J. Listner - December 17, 2015

On the other hand, we’ve come a long way since Apollo. When the time comes for humans to return from Mars or even the Moon there will likely be more sophisticated techniques to ensure there is no contamination. On the other hand, if and when asteroid mining commences and those recovered resources are to be returned to Earth, there will have to be protocols in place to ensure the recovered resources are not contaminated. It’s a thorny issue, but keep in mind there will be some level of contamination; the question is does it rise to the level of “harmful contamination.

3. Michael J. Listner - December 15, 2015

Reblogged this on Space Thoughts.

4. Michael J. Listner - December 14, 2015


Thanks for your comment and thank you for calling in with a great question yesterday. I’ll attempt to answer your both your questions together in two parts. First, § 51303 does not create or authorize private “use”. In fact, I believe use of in situ resources and occupation of celestial bodies by private entities is authorized by the Outer Space Treaty. Other than that, § 51303 does not do what its proponents asserts that it does.

Second, as I mentioned during the Show, the Outer Space Treaty is couched in the principle of Roman property law called res communis, which means in essence community property that is owned by no one. That means essentially outer space is community property incapable of being appropriated by any person, which kills any supposed right to private property. Thus, if outer space is “community property” then it cannot be sold by private persons for profit.

Consider the lunar samples collected by the Apollo missions. All the samples collected by the Apollo missions cannot be owned, sold or given away to private individuals per federal law. On first blush this suggests the United States government is exercising sovereignty over the Apollo samples, which would violate Article II of the Outer Space Treaty. However, the nuance is that the Apollo samples hold the legal status of public use property, which is “property” dedicated to public use. This is consistent with concept of the res communis principle in the Outer Space Treaty because the samples were gathered in the course of scientific investigations and exploration and not through a claim of ownership over the Moon; and they are being made available to the world, i.e. they are community property.

Some space lawyers and many space enthusiasts will tell you the Apollo lunar samples are “chattle” or personal property and that the acquisition of the samples creates customary international law for “private property” rights under the Outer Space Treaty. This is an incorrect conclusion that is based more on ideology than legal precedent.

Thanks for the link. I’ll give it a look this week.

5. Fremont John - December 13, 2015

Hi Michael,

Here is the link that David posted in the Blog for Dr. Dewars’ show:


Please take a look at Section 5, Safety on Earth and Going to and From LEO. Dr. Dewar has done a good job of assessing the risks of release of radiation and his analysis, mitigation of risks and proposed next steps (I think) are convincing.

Great show today. I have the following questions:

I believe the germane sections of the OST appear to be:

* the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind


* outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means

1) Could private use and profit from in situ resources authorized by Commercial Space Launch Competitiveness Act be considered carried out for the benefit and the interests of all countries (i.e. the resources are made available, albeit, for sale, to all parties through peaceful free trade)? There is nothing in the first section that says a party cannot profit from the use of space resources. Also, the term “province” is important here. It seems like this could be interpreted as not meaning “ownership” but perhaps, under the sphere of influence of all mankind (i.e. available for commerce by all).

2) The second section applies only to nations. Therefore, why can’t private entities profit from use?

Michael J. Listner - December 17, 2015

I agree. Dr. Dewar indeed does make a good argument in section 5 of his paper. Likewise, I skimmed the rest of his paper and he certainly makes a good case for nuclear propulsion in general.

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