Michael C. Mineiro

Regulation and licensing of US commercial spaceports

Publisher Summary The chapter deals with US federal law and regulation governing spaceport activities derived from a system of federal governance established under the US Constitution. The Constitution establishes three branches of government, each with their own authority and obligations. It is also said that the Congress enacts legislation, the Executive branch, i.e., President implements the legislation, and the Judiciary ensures that Congressional and Executive acts are within the bounds of law. To that end, Congress has passed legislation to regulate commercial spaceports. This legislation is the Commercial Space Launch Act of 1984 (CSLA) and related amendments spoken here. The CSLA and related amendments are coded in 49 USC x70101 (“the Act”). Pursuant to this legislation, the Executive branch has issued regulations for governing commercial spaceport activities (“Regulations”). In addition to this, the President has issued National Space Policy and Space Transportation Directives relevant to spaceport activities (“Directives”). As depicted in the chapter, together, the Act, Regulations, and Directives are the primary laws and regulations governing US commercial spaceport activity.

Sovereignty as the Legal Basis of Export Controls: International Law and Space Technology Controls

This chapter examines the international legal concept of a sovereign State as it is relevant to export control. This relationship between sovereignty and export control is important to the subsequent case study because the international legal concept of a sovereign State and the rights and obligations associated with sovereignty is the critical international law element upon which both international and domestic Comsat export control regimes are established and from which States exercise the legal right for export control regulatory preferences. The current international legal environment is one in which each sovereign State has a unilateral space technology export control system. States may attempt to coordinate their domestic regulations, but there is no supranational authority to regulate and enforce. Only in unique circumstances does international law impose obligations to control space technology exports. The current paradigm of international law therefore limits the options available to sovereign States. Export controls that transcend the unilateral controls of an individual State must be obtained via voluntary bilateral or multilateral agreements and/or arrangements with other de jure States. There is no recognition of alternative cooperative export control arrangements that could supplement the State as the principal export control legal personality, disconnect the concept of territory from the spatial paradigm of export control, or allow for the control of technologies without the inclusion of the concept of an export.

The U.S. Approach to Comsat Export Controls and the Challenge of U.S-E.U. Regulatory Divergence

The narrative of this chapter explores the U.S. and European approach to Comsat control within the context of regulatory divergence. Unveiled to the reader are the policy rationales associated with U.S. Comsat export control, in particular as they relate to China. At the same time, a study of U.S. and E.U. controls reveals a tension as the U.S. attempts achieve regulatory harmonization with Europe. As will be explored in subsequent chapters, the difficulty in achieving regulatory harmonization with Europe is a crucial factor in the effectiveness of U.S. Comsat controls. The chapter begins with a jurisprudential study of U.S. export control law and policy, focusing on the implementation of Congressional policy in U.S. export license authorization system (Section 4.1: An Overview of the U.S. Munitions and Dual-Use Export Control System). Thereafter, the specifics of U.S. Comsat policy rationale, legislation, and regulation are examined (Section 4.2: U.S. Comsat Export Controls). Finally, the European approach to Comsat export controls are explained (Section 4.3: European Comsat Export Controls) and U.S-E.U. law is compared using a qualitative metric of regulatory divergence (Section 4.4: Comparative Analysis of U.S-E.U. Comsat Control).

Technical Characteristics of Space Goods and Technology That Are Relevant to Export Control

States implement Comsat export control systems through a licensing authorization process. Whether or not a license is granted and the conditions of the license are normally determined by three factors:

Efforts to Reform the STDA and China Launch Boycott: A Public Choice Theory Analysis

In previous chapters, evidence was presented that both the STDA and the China Launch Boycott impose economic costs on the United States without a concomitant strategic benefit. It was concluded that these export control measures should be reformed and/or repealed, primarily because of “circumstances where, because of the availability of close substitute sources of supply, they are seemingly incapable of producing any beneficial consequences.” If the evidence and resulting conclusions in the preceding chapters are accurate, then why has the United States not reformed and/or revoked these mandates? Is this an example of a government failure? In this chapter, the question of reform is examined through the lens of public choice theory. The reason public choice has been selected is that public choice theory, when applied to these specific cases, provides realistic explanations as to the legislative process that resulted in the STDA and China Launch Boycott. It is recognized that public choice theory has limitations and is not the only theoretical lens through which to assess these legislative acts. Limitations to public choice theory include the tautological presumption of individual self-interest, assumptions concerning the level of information possessed by a representative individual, maximization strategies of individuals, and most importantly, the implicit inclusion of a metric of efficiency as the proper standard for which to judge a government action. But these limitations do not undermine the insights that are gained through the application of public choice theory for an explanation of the causality of export control reform failure and for the identification of additional values that should be considered in addition to the economic and strategic metrics discussed in previous chapters. Toward these ends, this chapter provides a basic overview of public choice theory and thereafter applies three particular theories to the case-study of Comsat export controls.

U.S. – E.U. Comsat Export Control Regulatory Divergence: An Economic Impact Assessment in Light of Strategic Effectiveness

Export controls invariably impose economic costs on a state and its citizens. A state that imposes export control measures is asking its citizens to do without the immediate advantages of unrestricted trade in order to achieve competing national security and foreign policy objectives. The legitimacy of an export control can therefore be challenged on the basis of economic costs and benefits in light of their strategic effectiveness. The U.S. Comsat export control system is currently subject to significant public criticism. Critics are calling for the revocation and/or reform of two Congressional regulatory mandates: (1) The Strom Thurmond Defense Act (STDA) mandatory listing of Comsats on the USML and (2) the boycott of Chinese launch services as established in Foreign Authorizations Act 1990-91 (FAAA). The principal argument is that these export controls negatively impact the U.S. Comsat industrial base without a concomitant benefit to US national security. The underlying logic of this argument is sound because the rational goal of export controls should be to achieve their strategic intent while minimizing unnecessary economic costs to the public. Towards these ends, this chapter assesses the economic impact of the STDA and China Launch Boycott to determine if they should be maintained in light of their strategic effectiveness. Section 5.1 assesses the economic impact of the STDA on the U.S. Satellite Industrial Base. Section 5.2 assesses the economic impact of the China Launch Boycott. Section 5.3 examines the strategic effectiveness of the STDA and Section 5.4 examines the strategic effectiveness of the China Launch Boycott. Finally, conclusions are made as to whether reform and/or repeal of these mandates should be instituted.

Policy, Economic, and Techno Globalization

Export controls are legal mechanisms that control the movement and transfer of goods and technology. The movements and transfers they seek to control are international. It is therefore important to gauge the international environment in which export controls operate. This chapter identifies and explains three international phenomena associated with globalization that are intimately linked to the law and policy challenges of Comsat export controls: policy, economic, and techno globalization. These three phenomena are the principal non-legal characteristics of the post-cold war international environment that are transforming international relations and challenging the effectiveness of United States export control of satellite technologies.

Legal Reform “Inside-the-Box” of the Current National Centric Paradigm: A Lacuna of Long-Term Strategic Vision

Current efforts in the United States to reform the Comsat export control system indicate the asymmetric costs and internal inefficiencies of the U.S. Congress are under increasing pressure for reform. No longer is the question of reform simply an exercise of discourse. Instead, legislation and executive policy is being written and implemented that will change the future of U.S. Comsat export controls. In this chapter pending and/or recent reform proposals are examined and specific law and policy reforms are recommended. In addition, this chapter identifies an omission in U.S. export control policy. This omission is a failure to recognize space technology trade and proliferation controls is intimately linked to State engagement in global civil space cooperation. This omission is evidenced by the lacunae of U.S. policy to consider how the continuation of the current paradigm of trade and proliferation controls impacts mankind’s future exploration and use of outer space.

Security and Global Civil Space Cooperation: Space Technology Trade and Proliferation Controls as One Part of the Larger Puzzle

As one part of the larger puzzle of international law, international relations, and our collective human future in outer space, this chapter examines how the current national centric paradigm of space technology trade and proliferation controls impacts global cooperation in civil space endeavours.