U.S. Satellite and Space Technology Export Control Law and Policy Reform Blog

New Blog Started!! Please check it out.

2011-04-19T08:07:00.000-07:00

Dear Readers:

For those of you who followed my old blog: "U.S. Satellite and Space Technology Export Control Law and Policy," I am moving to Washington D.C. to start work as an International and Inter-Agency Affairs Specialist with NOAA/NESDIS (Satellite Division).

As part of my move, I am starting a new blog on "space law and policy."

I successfully defend my Doctoral Thesis on April 5th. I begin work in Washington D.C. May 9th.

So...what is this new blog? It is a continuation of my passion for space law and policy. As a U.S. Government Employee, I am certain I will face many interesting professional challenges. But, I will not be engaged with the broader academic and policy community. Therefore, it is imperative I continue to write, publish, present at conferences, and share my ideas. My goal is to contribute to the development of U.S. and international space law and policy. To achieve this goal, I have to maintain focus. I also need to reach out to you, the community, and find ways to work together.

This blog will be tracking developments in space law and policy. These developments will range from issues of civil, commercial, and military concern. I will focus on issues of my current research areas: export controls, U.S.-China relations. But I will also reach out and seek new areas to blog on.

So please, check out the new blog, become a follower, and share your interest.

Also, Please feel free to contact me.

Best,

Dr. Mike

Doctoral Thesis Completed (Submission) - Final Post of this Blog

2010-11-16T09:37:00.000-08:00

It's hard to believe, but I've finally reached the end of the doctoral journey. Next week I will be submitting my doctoral thesis. As a result, this will be the last post I make on this blog.

I send a special thanks to the Canadian Space Commerce Association, the Canadian Space Summit, and all of you who have read my blog and contacted me.

In this final blog, I will share with you my thesis abstract. The thesis will be defended in spring 2011 and should be published as a book thereafter. I look forward to continuing my work in this field and hope to start a new web page/blog shortly. My contact information will still be working.

There is a good chance I will be traveling to China for a few months to conduct research, study Mandarin, and perhaps teach law. I will link from this blog to my new blog once I get settled in China.

If you need to contact me for consulting work etc., please reach me via:

www.aerospaceconsultants.us

Here is the abstract of my thesis submission:

"In this thesis space technology trade and proliferation controls are analyzed, focusing on two substantive issues that illustrate the challenges and opportunities of reform. The first substantive issue examined is the challenge of domestic law and policy reform in light of international regulatory divergence. This issue is examined through a case study of the U.S. commercial communication satellite export control regime. The second issue is the international implications of space technology trade and proliferation control on global civil space cooperation.

The unifying demonstration of this doctoral thesis is that States operate in an international legal system that perpetuates a self-justified security dilemma whose basis originates in the international legal right of States to produce, procure, and maintain space technologies of a military nature. As a result, the international legal system governing space technology trade and proliferation creates a tension between perceived national security needs and the benefits of global cooperation."

Thank you for your support.

Michael

Thesis update - International Law from the Hague

2010-08-04T00:53:00.000-07:00

Greetings from the Hague Academy of International Law! It's been a while since my last post - in part because there has been no substantive political or legal developments in U.S. Satellite Export Controls - and in part because I've been very busy traveling. My apologies for this laxity!

To bring you up to speed - my case study of the U.S. export control regime governing COMSATS is complete. I now have the privilege of looking back on my work and deducing new insights! First and foremost is the finding that the U.S. regime has served a de facto unilateral 'multilateral' regime...as contradictory as this sounds. The second is that a link exists between the lack of international coordination in civil and commercial space technology, arms control and proliferation, and international civil and space cooperation. Indeed, it wasn't until my case study was completed that I was able to see 'that which is not' within system...

I am now beginning the 'last' chapter(s) of my thesis...and this paradoxical unknown is the subject matter. Essentially, I am beginning to understand that the failure of international cooperation in outer space (e.g. where is our international space organization? or international satellite verification system for arms control and proliferation agreements? or international GPS? or international manned space missions to Mars?) is linked to self-justified security concerns that inhibit the political support for greater international cooperation.

As I am now at the Hague, I've been able to test my hypothesis through a discourse (and study) of broader concepts within International Public Law...essentially 'feeling' things out to ensure my understanding of international law and relations is based in reality and not my own subjectivity. This may be a truly original contribution to the field of international space law.

CSCA Annual Meeting Roundup

2010-03-17T05:19:00.000-07:00

Yesterday I attended the CSCA Annual Meeting.

Overall, it was a good experience.

With regards to the presentations, here are some insights I gained:

1) MDA is positioning itself to benefit from U.S. COTS programs (and - as related - is a proponent of fixed price contracting).

2) Canada has IRB (offset) and SR&ED (Scientific Research Experimental Development) tax credits that can be useful in catalyzing businesses.

After reflection, here are a few ideas I've generated from the meeting:

1) With regards to STEM - - it would be useful to create an "engineer" incubator - - a government sponsored engineering firm that undertakes public works projects and whose mission is to train young engineers. The "incubator" could maintain a permanent staff of "older" engineers (teachers) and then hire in 3 to 5 yr contracts engineers right out of university and graduate school. This incubator could also serve as an employer during fiscal recessions, by increasing public works project funding from the federal government.

2) If the U.S. fails to revoke the Strom Thurmond Defense Act USML mandatory listing of space goods and technologies, Canada is in a position to benefit, if it can identify foreign markets not accessible to U.S. firms and develop analog indigenous technologies, products, and applications. The underlying advantage for Canada over its European or Asian competitors is the 'indirect' subsidy of R&D that Canadian companies receive from U.S. Government contracts (e.g. Canada can apply a portion of its revenue generated from U.S. contracts towards indigenous tech development). This would also require a concerted effort by DFAIT and the Canadian Foreign Ministry to enter into technology safeguard agreements with importing countries that appropriately provide for reassurance against unauthorized Canadian technology transfers.

Canadian Space Commerce Association Annual General Meeting

2010-03-15T16:42:00.000-07:00

I am en-route to Toronto to speak at the Canadian Space Commerce Association Annual General Meeting on the subject of export controls.

I feel privileged to have received this invitation and look forward to participating in the event. Several noted leaders in the field of Canadian Space Commerce will be speaking, including Dr. Christian Sallaberger, Vice-President of MDA.

The focus of my presentation will be on the impact of Canadian and US Export Controls, as is relevant to the Canadian Business Sector. I plan on taking my audience through a basic tour of the current policy regimes, supplemented with an interesting historical examination of U.S.-Canadian Integrated Strategic Defense Production and Export Control Policy (1942-Present). I will assess pending legislative changes in the U.S. that will impact the Canadian business sector. Finally, I will provide my own insights on appropriate policy and business strategies for Canada - in particular with regards to emerging markets like China.

I'll post after the meeting on Wed. - so stay tuned for highlights and insights on the annual meeting.

Presidential Study Directive 8

2010-02-03T10:25:00.000-08:00

While health reform gets most of the headlines, behind the scenes the Obama Administration is building momentum on Export Control Reform.

"U.S. President Barack Obama has directed his administration to recommend by no later than Jan. 29 steps leading to an overhaul of the U.S. export control regime, according to a presidential directive signed Dec. 21.

The recommendations are to be based on the findings of a sweeping interagency review of U.S. rules that govern exports of unclassified military and dual-use technologies — including commercial communications satellites — announced by the White House Aug. 13.

“The results of this review shall be used to prepare a comprehensive set of recommendations to create a new U.S. export control system,” states the Dec. 21 document, known as Presidential Study Directive 8. “The recommendations shall include statutory and regulatory steps necessary for implementation.”

When (and if) these recommendations will be publicly available is unknown. What's also unknown is whether Obama will have the political capital to institute comprehensive export control reform. The problems associated with the U.S. export control system have been in public discourse for sometime - and w/regards to commercial communication satellites - an active lobby is on Capital Hill seeking reform. But no significant action in the fields of satellites and space qualified components have been instituted since the enactment of the Strom Thurmond Defense Act of 1999.

Why? This question is of the utmost interest to me as I write the 5th chapter of my Ph.D. thesis. To answer this question I am examining theories of public decision making.

A working-paper by Ronald Cass and John Haring (Boston University School of Law, 2000) may hold some of the clues. In this paper theories of public decision making are examined within the context of export controls generally. They essentially provide two alternative theories to explain what "on the surface" seems as irrational (e.g. maintaining ITAR export controls on Commercial COMSATS). One theory is that there are other 'benefits' not being factored into the typical public discourse associated with the impact of export controls. The second theory is that the public decision maker is receiving a benefit from the maintenance that justifies individual decisions to maintain controls at the cost of negative externalities to other actors in the society. In Chapter 5 of my thesis, I run with some of their theories (expand on them as well) in the applied context of US Commercial Communication Satellites Export Controls.

Report on the 2009 Canadian Space Summit

2009-11-27T12:52:00.000-08:00

Last weekend I attended and presented at the Canadian Space Summit.

The event had a variety of disciplines represented (education, life sciences, commerce, planetary sciences,earth orbit, law & policy). I heard many interesting presentations & met many good people (Terence Dickinson of Skynews gave a beautiful visual astronomy presentation at the Summit banquet).

A few insights that standout:

(1) Commercial Earth Observation is a sector currently experiencing significant economic growth.
(2) Space education can be distinguished from outreach. It is important for the space community to recognize, understand, and implement education & outreach respectively.
(3) The recent U.S. agreement w/India on civil space technology safeguards has been useful is paving the way for Canada to utilize Indian launch vehicles in the near future.

My presentation was well received and with a high attendance (much to my surprise given the 8:30 Sunday morning time-slot!). I received several questions and comments. The Canadian Press also picked up on my presentation in the article Canada's Space Program Hampered by U.S. Laws .

2009 Canadian Space Summit

2009-11-20T11:36:00.000-08:00

Getting ready to hop a train to Kingston, Ontario for the 2009 Canadian Space Summit!! I'll be blogging from the event - so stand by with lots of interesting and fun blog-action.

H.R. 3840 Introducted in the House and referred to the House Committee on Foreign Affairs: "Strengthening America's Satellite Industry Act"

2009-11-09T09:00:00.000-08:00

HR 3840 is a bill similar to HR 2410 (Sec.826) - it provides a legal mechanism to override the 1999 Sec.1512 Strom Thurmond Defense Act that removed Presidential authority to determine what satellite items and technologies are subject to DOS/ITAR or DOC/EAC control.

Like HR 2410, HR 3840 has an exclusion for exports to China.

It also removes the financial burden on exporters under the AECA and provides for the DDTC to be self-financed.

*I support this bill. It is logical and rational - it returns to the President the authority to determine what satellites (and associated SQUIPE - spacecraft, space qualified items, associated propulsion and space related equipment) are categorized as munitions or dual-use for regulatory purposes.

Obama Delegates Presidential Function to Report to Congess as required under Section 1512, 1999 Strom Thurmand Defense Act

2009-11-09T08:42:00.000-08:00

On Sept. 29th, 2009, President Obama issued the following delegation:

"Subject: Presidential Determination on the Delegation of Certifications Under Section 1512 of Public Law 105-261. By virtue of the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of Title 3, United States Code, I hereby delegate to you the functions of the President under section 1512 of the National Defense Authorization Act for Fiscal Year 1999."

Practically, what does this mean?

Very little. The legislation and implementation regulations remain the same. It only delegates a Congressionally mandated reporting requirement.

The Oct. 29th, Asia Times Online Article, "China hawks target U.S. signoff Shuffle," by Peter J. Brown, provides a good background and contemporary analysis of the situation.

Canadian Space Society Presentation on Export Controls and International Multiuse Mission Collaboration

2009-10-27T08:37:00.000-07:00

Nov.20th - Nov.22nd the Canadian Space Society is holding their annual conference.

This year I'll be presenting on the issue of U.S. export controls and their impact on international multiuse mission collaboration (from a Canadian perspective).

Here's the abstract for my paper/presentation:

---------------------------------------------------------------------------------
Abstract

Canada is a space power with unique technical niches that support opportunities for collaboration on space technologies. Such collaboration can include international partners, with each partner providing an element of the mission.
When U.S.-origin space technologies are involved Canada’s ability to collaborate internationally may be conditional on U.S. law and policy. As a result, U.S. export control law is directly linked to the success of Canadian collaboration. Understanding and assessing the impact of U.S. export controls is a prerequisite to the Canadian space sector fully developing the potential of international collaboration on multi-use missions.
This note addresses three questions relevant to the issue of Canadian
collaboration on international multi-use missions with U.S.-origin technology:
1) What is the strategic impact of U.S. export controls for Canada as it relates to
international multi-use collaboration?
2) What recent legislative and regulatory developments in the U.S. are relevant to
Canadian multi-use mission collaboration?
3) What should be the policy of the Canadian Government regarding U.S. export
controls and international multi-use collaboration?
In addition, Canadian space export control policy is also examined more broadly with the goal of providing specific policy recommendation that will enhance Canada’s future as an international space actor.

----------------------------------------------------------------------------------

If you'd like to read my draft paper/presentation for this event, please go to my SSRN Publication Page.

Followup from the Conference in D.C.

2009-10-27T08:33:00.001-07:00

The conference in D.C. was a good experience. It validated that which I knew and that which wasn't been discussed! It's clear that the SIA is pushing for HR 2410 to reach the President's signature. It's a rational piece of legislation w/regards to putting the discretion back in the executive.

It's interesting to note that launch capacity is also a parallel issue. From one perspective, why not allow commercial launches on Chinese vehicles?

What isn't being discussed in the reform are larger question of our human future in outer space, security and strategic rational within the context of long-term international relations, and even the fundamental question of strategic controls in an era of technological globalization.

These are the issues I am tackling in my thesis.

Upcoming Conference on Sat export control

2009-09-27T19:17:00.001-07:00

*Stay tuned! I'm heading to D.c. for the satellite and space technology export control conference. I'll be reporting on the event.

Should be interesting. Here's a link.

Canada-U.S.export control law impact assessment needed

2009-09-27T19:11:00.000-07:00

I've been preparing a research grant to examine the impact of U.S. satellite export control law on Canada's space sector. It's a very interesting (and very understudied) area! The only publication directly on this issue was in Space Policy (Choi & Niculescu, 2006) - - an empirical survey study of Canada's space manufacturers. Canada needs to seriously look at this issue. I foresee Canada at a space law and policy crossroads. It's time for them to consider their space policy through the lens of internationalization and collaboration. A study is needed to assess the impact (if any) of U.S. export control law and Canada's commercial and civil international collaboration.

Obama Admin Reviewing Export Control System

2009-08-21T07:44:00.001-07:00

Van Nuys, CA – Congressman Howard L. Berman (D-CA), chairman of the House Foreign Affairs Committee, today welcomed the Administration’s new initiative to review the U.S. export control system

“I am very pleased to see the Obama Administration will undertake this thorough review,” Berman said. “It is years overdue. A modernized export control system is needed to deal more effectively with the security threats posed by global diffusion of dual-use technologies and to maintain continued U.S. technological leadership.

“Effective export controls are critical to U.S. national security, but they must be responsive to the challenges of the modern globalized world," Berman added. "That is why I have launched a congressional review of U.S. export controls on U.S. goods that have both commercial and military applications – so-called ‘dual-use’ items. I hope to introduce a new Export Administration Act in the beginning of next year that will overhaul the dual-use export control system.”

Dual-use items are those that can be used for both commercial and military purposes, and are therefore unlawful for export to certain countries without a U.S. license.

The fundamental basis for U.S. dual-use export controls, the Export Administration Act of 1979, expired in 1994. It was extended briefly in 2000, and has been kept in force only through the extraordinary authority of the International Emergency Economic Powers Act (IEEPA). Today the White House also announced that under IEEPA it was extending the Export Administration Act by a year.

Satellite and Export Control Conference Fri. Oct 2nd

2009-08-21T07:39:00.000-07:00

I'll be attending the upcoming Sat. and Export Control Conference in D.C..

Should be interesting. Here's a link:
http://www.americanconference.com/trade_defense/Satellite_and_Space_Export_Controls.htm

Movement in D.C. and the Policy Debate - HR 2410 and Congressional Hearings

2009-07-20T12:16:00.000-07:00

There is a lot of action developing in D.C. right now. After 10 years of outdated policy due to the Cox Commission and related Strom Thurmond National Defense and Authorization Act of 1999, it looks like the cries for reform are gaining traction.

The House Foreign Affairs subcommittee held hearing on this issue on April 2nd (http://foreignaffairs.house.gov/hearing_notice.asp?id=1060).

On June 10th the House passed H.R. 2410 (http://thomas.loc.gov/cgi-bin/bdquery/z?d111:hr.02410:). Section 826 of the bill would authorize the President to remove satellites and related components from the U.S. Munitions List, except with respect to exports to China.

One interesting aspect of HR 2410 is the exclusion regarding China. I spent a few years in China and have followed the 'special' status China is afforded w/regards to commercial satellite sales and launches. Ultimately we're going to have to play ball with the Chinese. To what extent is the question. I'm going to reflect on this for a few days and get back to you.