Article VI, the FAA’s Payload Review, and Foreign Policy Considerations

After last Friday’s post on the Outer Space Treaty’s Article VI, which states that the activities of non-governmental entities in outer space shall require authorization and continuing supervision by the appropriate state party to the treaty, I had some interesting conversations on the topic at a couple of conferences. One person pointed out that the FAA’s payload review authority allowed the FAA to take foreign policy interests into account when making a payload determination. This is true and not inappropriate, but should not be applied for Article VI reasons in light of the fact that the provision is not self-executing.

When conducting a payload review, the FAA must do so consistent with public health and safety, safety of property, national security and foreign policy interests. The FAA’s foreign policy authority may be a double-edged sword for industry. (If it were a light saber, we’d speak of whether it glowed blue or red.)

On the one hand, the FAA could use its powers to encourage, facilitate and promote. For example, were a prospective lunar harpist to seek a payload determination from the FAA, the FAA would engage in its normal practice of inter-agency consultation. The U.S. Department of State might raise concerns with respect to the fact that Congress has not passed legislation to regulate harp playing despite Article VI providing that all States Parties to the treaty authorize and continuously supervise the acts of their nationals in outer space. With its own foreign policy authority, independent of that of the State Department, the FAA could determine that because Article VI is not self-executing, until Congress acts, the U.S. has not determined that playing the harp constitutes the type of activity requiring oversight under Article VI.  Having satisfied its consultation obligations the FAA could then issue a favorable payload determination.

Conversely, the FAA could worry that other countries might raise issues about Article VI authorization and continuing supervision of a lunar harpist and contemplate denying the harpist’s requested payload determination. Such a determination should, however, run afoul of the fact that Congress has not determined that lunar harp playing is the kind of activity that requires federal oversight. The FAA must make any policy determinations in accordance with U.S. law, and a non-self-executing treaty is not, as noted by the Supreme Court’s Medellin opinion, binding federal law. To treat it as such would raise the question of whether the FAA was usurping Congress’s legislative role.

Lunar harp playing is a vaguely ludicrous example of an activity that could take place extra terrestrially, but it makes the point that the Outer Space Treaty left the determinations of what requires authorization and continuing supervision to each signatory nation. If Congress hasn’t decided that lunar harpists or miners require oversight for their respective activities, they don’t.  The treaty does not say which activities must be regulated, and in the United States that determination lies with Congress. For the FAA to say that it had the ability to make such determinations about a non-self-executing treaty would be to say that it, rather than the legislative branch, could decide which activities required federal oversight.

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