There are many claims these days that a new regulatory regime needs to be in place in order for a private entity to operate in outer space. These claims should not be treated as correct to the extent that they claim that private parties may not operate in outer space unless authorized and continuously supervised. As noted in a previous post, not all provisions of the Outer Space Treaty are self-executing, so until Congress acts, those treaty provisions don’t bind private operators. That logic applies to the treaty’s Article VI as well.
Article VI of the Outer Space Treaty is Not Self-Executing. Article VI states:
States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.
This provision may place an obligation on the United States government. It does not place a barrier in the way of any particular activity by a private actor in outer space. That is because Article VI is not self-executing. It is true the Constitution makes treaties the supreme law of the land, but only if they are self-executing. If a treaty promises that the signatories shall go off and do something to carry out whatever the signatories agreed to, it necessarily requires additional action by someone in the government. In the United States, that someone is Congress.
As the Supreme Court noted in Medellin v Texas in 2008, “not all international law obligations automatically constitute binding federal law enforceable in United States courts.” The origins for this can be found in the early 19th century case of Neilson v Foster (which was reversed on other grounds):
Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the Legislature whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the Judicial, Department, and the Legislature must execute the contract before it can become a rule for the Court.
In Neilson, the Court interpreted the English version of a treaty with Spain regarding a transfer of land to the United States. The English text said that the Spanish land grants to plaintiffs “shall be ratified and confirmed to the parties in possession thereof.” The Supreme Court said that Congress therefore had to first enact legislation because the text of the treaty required further action, namely, the ratification and confirmation.
Similarly, the Medellin Court looked to the text and history of a treaty to determine that Article 94 of the UN Charter was not self-executing, because, although the treaty said, “[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party”, the Court did not find the provision immediately operable because it spoke of future action.
The text of Article VI is remarkably similar to that of the Neilson treaty. Both use the term “shall” to indicate future undertakings on the part of the signatories. Both require implementing legislation, which necessitates policy judgments by the legislative branch. Additionally, for Article VI, given the paucity of commercial activity in 1967, it could only address future activity and a future legislative response. Even if the text weren’t so clear, the history of the Senate’s confirmation of the Outer Space Treaty supports the text. Indeed, Ambassador Goldberg, when testifying to the Senate, stated that not all provisions of the treaty were self-executing. Accordingly, Article VI is not self-executing and the Executive Branch should not treat it as a barrier that applies to commercial actors.
Not All Activities Require Regulation. Article VI requires that a State Party authorize and continuously supervise its nationals. The treaty does not say what activities require authorization. Nor does it define “continuing supervision.” These answers are left to the signatory states. For example, the USSR might have instituted price controls on platinum group minerals to supervise sales. Hong Kong likely wouldn’t. In the United States, the U.S. Congress must decide what activities require authorization and supervision. This means that the Executive Branch should wait on Congress to tell it what activities might rise to the level of concern—for whatever reason—that they require regulation.
Continuing supervision. I long ago sat in on a class called something like Telecom for Poets. One of the things I remember from it was the visual depictions of what frequencies looked like. X-rays were short sharp spikes all smashed up against each other. Other frequencies looked like long, languid stretches of string, barely shaped by a curve. Both of these, the professor said, were continuous. We students gasped, but we got it: “continuous” can mean different things in different contexts. In fact, even now we see different examples of what “continuous supervision” means in the regulatory environment. One agency will send inspectors to all launches but not necessarily all component testing. Another agency will travel abroad with its regulated entities to ensure against the unlawful transfer of technology. Another one shows up after an accident happens. Different resources and different priorities drive different levels of supervision, but they may each be characterized as providing continuing supervision of some sort, regardless of the frequency.
Activities. Congress should not pass legislation that encompasses everything anyone might do in outer space. That would be the equivalent of federalizing Connecticut, and it’s not necessary. Life is full of activities, from the benign to the ultra-hazardous. Not only will persons engage in activities that might endanger themselves,their customers, or their neighbors, but they will also perform more ordinary acts. A musician may decide to play the harp on the Moon. Lots of people will brush their teeth in outer space. Rather than enacting overly broad legislation that transfers all legislative powers to an agency, Congress should make decisions about what requires oversight and what does not. (Indeed, such a transfer would only prolong any regulatory uncertainty as industry faced the possibility of having to obtain permission for every little activity proposed.)
Other decisions that require Congressional determinations: Congress, in deciding to regulate an activity of a private U.S. entity in outer space , would have to pick an agency to do the regulation. Perhaps the Department of Housing and Urban Development could oversee space habitats. Perhaps the Department of the Interior would acquire jurisdiction over space mining. Or, maybe the Department of Commerce. What would the regulation look like? Would it be a license, a permit, a certificate? Would regulations address safety issues, national security, or food safety? Let’s not forget that a State Party “shall bear international responsibility” for, among other things, “assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.” Although not many provisions of the Outer Space Treaty clearly apply to a country’s nationals as private entities, perhaps Congress could address Article IX’s prohibition on interference by a country’s nationals, and enact implementing legislation to carry that out. (As noted in the previous post, the harmful contamination provision of Article IX only applies to State Parties so should not fall within the responsibilities intended by Article VI.)
Until Congress acts, the government should not claim that Article VI prohibits all or any particular private activity. Indeed, given the close textual analysis that the Supreme Court applies to treaties, Article VI’s potential obligation on the government does not, even on its own terms, constitute a prohibition on the private sector.