Michael J. Listner

Michael J. Listner


182 comments posted · 1 followers · following 0

3 years ago @ The Space Review: essa... - The Space Review: The ... · 3 replies · +12 points

This article illustrates the fundamental flaw with the discussion of "private property rights" in that there is a misconception "private property rights" are taken in aggregate and not legally separated into real property rights and chattel (personal) property rights. Certainly, this misconception is found when discussing space resources as many who propound the concept do not really understand what the legal effect is. The author's own words support this misunderstanding:

"Two nations, the United States and Luxembourg, have enacted legislation favorable to property and mineral rights regarding space resources. This was met with opposition from some in the international community, who called into question whether such unilateral acts were in and of themselves a violation of the non-appropriation principle of the 1967 Outer Space Treaty."

The flaw in the author's statement is the implication the U.S. law and Luxembourg law create mineral rights, which is a real property right as opposed to the creation of a personal (chattel) property right through "use" in Article I. That space resource laws permit an activity through use to create a personal property interest and not a real property interest is significant as it supports the majority view the prohibition of appropriation in Article II extends to private individuals. Thus, instead of using space resource laws to bolster his assertion space resource laws support "private property rights" they contest it.

This fallacy is all too common and the author is not alone in his misconception as many, including the Building Blocks themselves (I am an Observer for the Space Resource Working Group), do not grasp the legal underpinnings of space resources. All too often space resources is conflated with "mining claims" and real property interests and do not take into account the disparate effect international law has on the meaning of legal definitions for property interests that is key to make space resources a viable legal construct.

3 years ago @ The Space Review: essa... - The Space Review: It&r... · 0 replies · +1 points

There is no "taboo" or "norm" against kinetic ASAT testing.

3 years ago @ The Space Review: essa... - The Space Review: The ... · 1 reply · 0 points

It isn't when it wasn't an ASAT.

3 years ago @ The Space Review: essa... - The Space Review: The ... · 4 replies · -1 points

Sure it is. You have to look everything in aggregate instead of jumping to conclusions.

3 years ago @ The Space Review: essa... - The Space Review: The ... · 6 replies · +3 points

Again, I take issue with the classification of the USA-193 intercept as an ASAT test when it wasn't and why commentators don't point the ASM-135 test in 1985 instead.

3 years ago @ The Space Review: essa... - The Space Review: Weap... · 9 replies · +15 points

A few thoughts:

1) The whole space weaponization debate has been going on since Sputnik and doesn't really seek resolution but rather uses the illusion of resolution of to delay/ It was the Soviet Union who said "nyet" to including "space weapons" in the Outer Space Treaty in favor of separate arms control measures that would have been illusory to the extent they delayed their geopolitical rival.

2) The author is making the assumption the U.S. is going to be the aggressor. What about the PRC or the Russian Federation? Putting aside their respective prattle about peace, cooperation, etc, and looking at what both these States are doing on the world stage (the Ukraine, the South China Sea, etc.) it seems they are the current trouble-makers. Then there are those counter-space capabilities both are developing.; The narrative I've been hearing a lot of lately is Beijing (and Moscow) is afraid of U.S. "space weapons" and they need ASATs as a deterrence. I proffer that is utter hogwash and for the PRC in particular would direct the reader to the teachings of Sun Tzu.

3) I hear a lot of talk about "space weapons" but I don't see an acceptable legal definition. Perhaps Justice Stewart's test for obscenity can be implied in that 'I can't define what a space weapon is, but I'll know it when I see it.'

3 years ago @ The Space Review: essa... - The Space Review: Beyo... · 5 replies · +6 points

That's a nice sentiment but States have interests. Having gatherings talking about peaceful cooperation makes for good optics, but what counts is the realpoltik, especially when some States who promulgate rules have no intention of following them. Take a look at UNCLOS and then shift your gaze over to the South China Sea. If that is how the "rule of law" is going to be treated in one domain, it is a safe bet it will be ignored in others, including outer space.

3 years ago @ The Space Review: essa... - The Space Review: Beyo... · 7 replies · +7 points

While I am cautious about saying "it won't happen", the odds are is it's highly improbable. Treaties are out of favor and even if they weren't, the political support among the States that could make it stick is zilch.

4 years ago @ The Space Review: essa... - The Space Review: Mars... · 0 replies · +1 points

I'm calling shenanigans on this. Where in Article V of the OST or even the Rescue Agreement does it say members States oblige themselves to offer even if another State is not a party? In effect, Lukrum is implying it's a third party and entitled to the benefits even though it doesn't have to follow the rules. The classical rule with regards to third-parties articulated in litigation in the Permanent Court of International Justice (I'm never going to live down actually citing the PCIJ since its been out of existence for decades) is essentially if you're not a party to a treaty you have no rights or duties. Unless you want to venture Article V or the OST, Rescue Agreement, et al are custom, there is no getting around the ordinary mean in Article V. This is the whole fallacy National Geographic blundered into: they probably went to Wikipedia or some other online site about space law, plucked a few things out the writers thought would make a cool plot and forged ahead without a second thought.