Newsgroups: sci.space.history
From: henry@spsystems.net (Henry Spencer)
Subject: Re: Discoverer II and Discoverer Zero
Date: Sat, 4 Jul 1998 18:26:44 GMT

In article <A0Mm1.331$Gy3.1440299@fozzy.nit.gwu.edu>,
Dwayne Allen Day  <wayneday@gwis2.circ.gwu.edu> wrote:
>: Nope, you misread my posting, Dwayne.  The US has not renounced ownership;
>: what it has renounced is the special exemption from normal salvage law for
>: government property...  That is, US government hardware is subject to
>: normal salvage laws, which say that salvage is okay but salvaged objects
>: still belong to their original owner (subject to payment of salvage fees).
>
>I'm still not sure this is correct...

I'd suggest reading "Salvage Law for Outer Space", in the proceedings of
Space 92 (the ASCE engineering-in-space conference), which is written by
an honest-to-God lawyer and discusses the details of Earth salvage law
first.

"Some nations, including the United States, have made an exception to the
rule of sovereign immunity specifically for the purposes of salvage... the
United States permits salvage awards to US nationals, and to foreign
nationals on the basis of reciprocity, for services rendered to government
ships..."

>There are US warships for which
>anyone caught removing objects will be prosecuted.  Further, as I noted,
>there are vast differences depending upon the object and the original
>owner.  The US Navy will NOT let you retrieve a US Navy aircraft sitting
>in 40 feet of water off the coast of Florida.  The USAF will.

The paper does note that salvage awards are generally not granted when
the owner has explicitly refused the would-be salvager's services.

However, I would suspect that at least some of this is just a matter of
the US government getting away with what it can, in the absence of a court
decision saying "can't do that".  It's not rare for such administrative
decisions to be struck down as illegal when somebody challenges them
persistently enough; indeed, there is no shortage of major laws which
would probably be struck down as unconstitutional if/when a challenge to
them reaches the Supreme Court.  (In some cases, such as the "born secret"
status of nuclear-weapons technology, the government has given in and
dropped cases when defendants persisted, to avoid having dubious laws
reach the Supreme Court.)
--
Being the last man on the Moon is a |  Henry Spencer   henry@spsystems.net
very dubious honor. -- Gene Cernan  |      (aka henry@zoo.toronto.edu)

Newsgroups: sci.space.history
From: henry@spsystems.net (Henry Spencer)
Subject: Re: Discoverer II and Discoverer Zero
Date: Thu, 2 Jul 1998 03:13:24 GMT

In article <%lym1.296$Gy3.1267548@fozzy.nit.gwu.edu>,
Dwayne Allen Day  <wayneday@gwis2.circ.gwu.edu> wrote:
>: (And as Dwayne has pointed out, normal commercial salvage law typically
>: does not apply to government-owned objects anyway.  There is *no* legal
>: right to salvage something that belongs to another government.  Actually,
>: it turns out that the US is an exception, because it has renounced its
>: special privileges in this area.  Few other governments have.)
>
>Actually, I'm not so sure this is correct.  My point was that there is a
>distinct difference between a commercial vessel lost at sea and a military
>one.  Governments tend to insist that they still own the ship after it has
>gone down.  I don't believe that the US has renounced ownership...

Nope, you misread my posting, Dwayne.  The US has not renounced ownership;
what it has renounced is the special exemption from normal salvage law for
government property, which essentially forbids any attempt to salvage a
government-owned object.  That is, US government hardware is subject to
normal salvage laws, which say that salvage is okay but salvaged objects
still belong to their original owner (subject to payment of salvage fees).
--
Being the last man on the Moon is a |  Henry Spencer   henry@spsystems.net
very dubious honor. -- Gene Cernan  |      (aka henry@zoo.toronto.edu)

Newsgroups: sci.space.history
From: henry@spsystems.net (Henry Spencer)
Subject: Re: Discoverer II and Discoverer Zero
Date: Wed, 1 Jul 1998 01:41:29 GMT

In article <3599822D.189F@primary.net>,
James A Davis  <jimdavis2@primary.net> wrote:
>You read too much into what I wrote. The act of salvage itself would not
>be illegal. You just could not, as you say, keep the recovered objects.
>But if you keep the recovery a secret no demands for a return to the
>rightful owner will be forthcoming...

The courts take a dim view of someone claiming that he didn't really steal
anything because the owner would never miss the stuff he took.  It remains
theft, even if you don't get caught.  Salvage law does, I believe, include
a requirement to notify the rightful owner promptly.

(And as Dwayne has pointed out, normal commercial salvage law typically
does not apply to government-owned objects anyway.  There is *no* legal
right to salvage something that belongs to another government.  Actually,
it turns out that the US is an exception, because it has renounced its
special privileges in this area.  Few other governments have.)

>...Once the
>recovered object has yielded up its secrets there is really no need to
>hold onto it. Examples of this are aircraft flown by defectors which are
>minutely examined before being returned.

However, those are cases where the loss of the aircraft is known to its
owners.  There can be considerable practical advantage in keeping the
rightful owners ignorant of the fact that you have salvaged and studied
their property, in cases where they don't know about it already.  (The
most spectacular example of this is encryption devices and codebooks,
which quickly become valueless if the true owner becomes aware that you
have them.)
--
Being the last man on the Moon is a |  Henry Spencer   henry@spsystems.net
very dubious honor. -- Gene Cernan  |      (aka henry@zoo.toronto.edu)

Newsgroups: sci.space.history
From: henry@spsystems.net (Henry Spencer)
Subject: Re: Discoverer II and Discoverer Zero
Date: Tue, 30 Jun 1998 20:30:08 GMT

In article <35991A3D.52B0@primary.net>,
James A Davis  <jimdavis2@primary.net> wrote:
>Recovery of abandoned items in international waters (the CIA's Project
>Jennifer comes to mind) could be defended as an act of salvage...

Nope.  There is a widespread misconception that the basic principle of
salvage law is "finders keepers".  It's not so.  Material whose original
owner can be identified continues to belong to the original owner, with
certain fairly narrow exceptions, although he may owe you a salvage fee
(and you may be able to hold the salvaged property hostage until he pays,
the courts willing).  Neglect does not constitute abandonment.
--
Being the last man on the Moon is a |  Henry Spencer   henry@spsystems.net
very dubious honor. -- Gene Cernan  |      (aka henry@zoo.toronto.edu)

Newsgroups: sci.space.history
From: henry@spsystems.net (Henry Spencer)
Subject: Re: Discoverer II and Discoverer Zero
Date: Sat, 4 Jul 1998 18:31:07 GMT

In article <6nk1ol$53t@crl3.crl.com>,
George Herbert <gherbert@crl3.crl.com> wrote:
>>...Neglect does not constitute abandonment.
>
>For commercial items, neglect eventually becomes abandonment,
>though there are exceptions and inconsistent court case results...

*Eventually*.  "In the absence of express abandonment by the property's
owner, United States courts have only found abandonment when adjudicating
salvage of long-lost wrecks."  ("Salvage Law for Outer Space", proceedings
of ASCE Space 92.)

>There appears to be an exception for vessels and vehicles
>which sunk in someone else's territorial waters doing something
>unfriendly or unapproved, and for plausibly deniable recovery
>of items in international waters by governmental intelligence
>agencies, though this is less admiralty law and more general
>international relations.  Governments playing with each other
>have different, and often not fully written down or agreed to,
>sets of rules.

As Jerry Pournelle once observed, there was a time when international law
was taken very seriously, and the counsel to the State Department was one
of the most important officials in Washington... but that was long ago.
--
Being the last man on the Moon is a |  Henry Spencer   henry@spsystems.net
very dubious honor. -- Gene Cernan  |      (aka henry@zoo.toronto.edu)

Newsgroups: sci.space.history
From: henry@spsystems.net (Henry Spencer)
Subject: Re: Discoverer II and Discoverer Zero
Date: Sun, 5 Jul 1998 01:53:51 GMT

In article <7pyn1.355$Gy3.2075800@fozzy.nit.gwu.edu>,
Dwayne Allen Day  <wayneday@gwis2.circ.gwu.edu> wrote:
>...But what difference does this make?  The US maintains ownership.
>Maintaining that ownership allows the US to deny a salvager permission to
>salvage a vessel...

Dwayne, I think you're persistently confusing one thing:  ownership vs.
right to salvage.  Nowhere, at any time, have I said anything intended to
imply that the US has in any way, shape, or form, renounced ownership of
lost vessels.  That's a *very* different issue.

What international salvage law normally forbids, unless the government in
question explicitly gives it up, is any attempt whatsoever to salvage
government-owned vessels.  They are simply outside normal salvage law.
This privilege, the US government *has* renounced.  US government vessels
are subject to normal salvage law, which does *not*, repeat *not*, repeat
*not*, function on the basis of "finders keepers".

That means that, in principle, you are allowed to salvage a US-government
vessel, WHICH REMAINS THE PROPERTY OF THE US GOVERNMENT, and then ask a
salvage fee from the US government for having done so.  At no time does
ownership of the vessel pass to you, except perhaps by explicit act of the
courts following persistent non-payment of the salvage fee.  Salvaging
something does not make it yours.  The right to salvage does not depend on
owning the vessel being salvaged.  This is ordinary salvage law, in no way
specific to the government.

>There have been cases where the US essentially forbids
>salvage on this basis.  Without this proviso, what is to prevent someone
>from, say, diving on a wreck and retrieving souvenirs?

Again, I think you're confusing salvage rights with ownership.  There is
nothing preventing you from diving on a wreck and retrieving things, but
appropriating them as souvenirs is theft -- they belong to the owner of
the wreck.  The fact that you salvaged them is irrelevant; "finders
keepers" is *not* the way salvage law works.

>This has recently
>been an issue in regards to the CSS Hunley, a Civil War era submarine.
>The US Navy asserts ownership and therefore insists on approval of any
>salvage operation.  It could also deny any salvage effort.

It's not clear to me that they legally have the power to deny a salvage
effort.  Explicit refusal of an offer of salvage services does not make a
salvage attempt illegal -- it merely makes it unlikely that a successful
salvager could get the courts to award him a salvage fee.  (Although since
the US Navy would continue to own the submarine regardless, this would
make the effort rather pointless, since there's no obvious way in which
the salvager could profit from it.  He can't legally hang onto the sub
against payment of a salvage fee if the courts refuse to award any fee.)

>I also noted that the US Navy and US Air Force take different approaches
>to this.  The Air Force does not assert ownership over aircraft lost at
>sea.  The US Navy does.

Again, salvage rights and ownership are different things.  I would be very
surprised if the USAF has actually renounced ownership of lost aircraft;
the US government has a history of being most unwilling to let modern
military aircraft (even obsolete ones) pass into civilian hands unless
they have been permanently rendered unflyable.  Sounds to me like the USAF
is just more willing to let people salvage them (and presumably, to pay
the resulting salvage fees to get the aircraft back).  Permitting salvage
does *not* imply renouncing ownership.
--
Being the last man on the Moon is a |  Henry Spencer   henry@spsystems.net
very dubious honor. -- Gene Cernan  |      (aka henry@zoo.toronto.edu)

Newsgroups: sci.space.history,sci.space.policy
From: henry@spsystems.net (Henry Spencer)
Subject: Re: Salvage of satellites...
Date: Tue, 7 Jul 1998 14:06:41 GMT

In article <01bda8d6$39617d40$58299cd1@default>,
steven j forsberg <SFORSBERG@prodigy.net> wrote:
>	Fairly early in our space program, after some argument (naturally), our
>policy was that anything that had been in outer space belonged to the
>nation that had launched it, regardless of its 'current physical status'...
>(for example: de-orbited and landed in Veneuzuela).  The official policy
>(though naturally one couldn't make foreigners follow it) also stated,
>IIRC, that recovery of such items was the business of the government that
>launched it, and 'private' or 'second' country' (i.e. the country it landed
>on!) recovery should only take place with the permission of the launching
>government.

More or less those positions are now enshrined in international treaties,
with almost every nation on Earth signatory to them.

>...And on the converse side, does this also imply that we are
>"accountable" for damages caused by any such re-entry?

Yes.  The practical aspects of this get complex when multiple nations are
involved, mind you, and there have been few actual cases.

Responding to the Subject line...  The bottom line of the Space 92 paper
that I cited earlier was roughly:  "it would make sense for space to have
salvage law, closely modelled on maritime salvage law, but right now the
situation is totally unclear and it's not clear that salvage rights even
exist in space".
--
Being the last man on the Moon is a |  Henry Spencer   henry@spsystems.net
very dubious honor. -- Gene Cernan  |      (aka henry@zoo.toronto.edu)

Newsgroups: sci.space.history,sci.space.policy
From: henry@spsystems.net (Henry Spencer)
Subject: Re: Salvage of satellites...
Date: Thu, 9 Jul 1998 13:57:50 GMT

In article <35A4931B.4F1A@net1.net>, Jim Davidson  <davidson@net1.net> wrote:
>> More or less those positions are now enshrined in international treaties,
>> with almost every nation on Earth signatory to them.
>
>Well, no.  The Outer Space Treaty certainly says what you indicate, that
>space hardware belongs to the nation which launched it, forever.
>However, the Outer Space Treaty has only about 90 or 93 signatories...

Perhaps I should have said "almost every nation on Earth that amounts to
anything" :-), but it would have made for a clumsy sentence.

>> ...roughly:  "it would make sense for space to have
>> salvage law, closely modelled on maritime salvage law, but right now the
>> situation is totally unclear and it's not clear that salvage rights even
>> exist in space".
>
>True.  Although, where clarity is lacking, there is nothing quite like
>action for clarification...

Agreed.  Of course, the clarification may not be in quite the desired
direction, which is problematic if you are trying to assure investors
that your plans rest on solid legal ground.

>...There are plenty of jurisdictions, all of them
>about the same distance from space, which are not signatory to the Outer
>Space Treaty or any other, from which to operate such a business.

However, there is the interesting concept of "customary international
law", which basically says that when there's sufficiently overwhelming
agreement on a principle, it becomes part of the general background of
international law, and is considered binding on *everyone* -- signatories,
non-signatories, ex-signatories, the works.  I'm told that a serious legal
review, done for NASA in the Bush era (when it briefly looked like the
matter might have immediate practical relevance), concluded that most of
the provisions of the Outer Space Treaty probably qualify as customary
international law, given universal acceptance by the spacefaring nations
and the lack of objections from anyone.

(Anyone wanting more details on this, please ask a lawyer -- preferably
a specialist in international law -- not me!)

I'd guess that what's "customary" can probably be changed, given real
action in space and sufficient legal budgets on the ground, but it does
up the legal ante substantially.
--
Being the last man on the Moon is a |  Henry Spencer   henry@spsystems.net
very dubious honor. -- Gene Cernan  |      (aka henry@zoo.toronto.edu)