By the Outer Space Treaty’s Own Terms, The U.S. Complies with Article VI of the Treaty

I participated in a lively debate last week at the International Institute of Space Law’s Galloway Symposium on Critical Issues in Space Law. The other panelists were my friends and colleagues Professor Diane Howard of Embry-Riddle Aeronautical University’s Commercial Space Operations Program and Professor Matthew Schaeffer of the University of Nebraska’s Space and Telecom Law Program. We discussed whether the U.S. complies with the requirement in Article VI of the Outer Space Treaty that each country authorize and continuously supervise the activities of non-governmental entities in outer space. In posts here and in various other fora I’ve noted that current law allows U.S. private entities to operate in outer space without authorization or supervision because the treaty is not self-executing. The question at the Galloway was slightly different: is the United States itself in compliance with Article VI? I said yes because the treaty leaves to each country the decisions about how to comply with its rather ambiguous terms.

Before the debate, the State Department’s Legal Adviser delivered remarks, which may be found here, to commemorate the 50th anniversary of the Outer Space Treaty. In discussing the Space Resource Exploration and Utilization Act of 2015, which recognizes rights in extracted space resources, the Legal Adviser noted that the same law “recognizes that non-governmental space resource utilization activities are ‘subject to authorization and continuing supervision by the Federal Government.’” He is correct about what the law says, but, oddly, the law does not provide for either authorization or continuing supervision. It identifies no agency to provide that authorization or supervision, and no licensing or certification regime. That is because it does not need to, and this provision might usefully be dropped the next time Congress addresses the issue.

Instead, Congress should recognize that unless it decides a particular activity requires regulation, the activity may proceed without government oversight. This decision would comply with Article VI. Article VI contains three relevant ambiguous terms that the drafters appear to have left to different countries to define as they see fit, and, eventually, the decisions of the different countries will start to form customary international law.  The terms are “authorization,” “continuing supervision,” and “activities.”

Authorization

Each country must authorize its nationals’ activities.  Each country has its own processes and terminology for how it authorizes something. The United States alone authorizes regulated activities by certificate, certification, approval, license, registration, waiver, or exemption. A driver’s license is not too difficult to acquire, depending on where you live. Aircraft certification is a lot harder, even though the Federal Aviation Act calls for the “minimum” standards required for safety.

Continuing supervision

The signatories to the treaty are supposed to require continuing supervision of their nationals.  “Continuing supervision” is a matter of frequency. Some agencies conduct annual inspections. Others oversee regulated activities on a daily basis. Some only show up after an accident.  The frequency may not be the same, but the supervision may still be called continuous.  The nature of the supervision may differ.  Argentina might decide to conduct annual inspections of a regulated space activity.  Brazil might want monthly reports.

Activities

Finally, and most importantly, the treaty leaves it to each country to decide what activities require supervision and authorization. The treaty does not say all activities require oversight. It does not say which particular activity requires oversight. Rather, it leaves to each country’s policy makers the decision as to where to draw the line. And draw lines they must, so as not to waste resources, unduly burden the industry, or cause confusion. For the U.S., the entity that makes those determinations is the U.S. Congress. If Congress hasn’t said that a lunar music hall requires a license, then an orchestra playing music in the Tycho crater would not violate Article VI.

Article VI is structured so that a country need not expend resources on frivolous activities such as brushing one’s teeth or playing the harp in outer space. Each country may itself decide what activities require authorization and supervision. Thus, if our decision makers haven’t decided that a particular activity needs authorization, it doesn’t. (Strangely, Congress’s recent language about how resource extraction shall be subject to authorization and supervision appears, from one perspective, to have outlawed commercial mining. Given we all know that was not the intent, the topic will be the subject of a separate post.)

As a matter of past practice, Congress has always identified what activity it wanted regulated, and it has done so with the proper level of specificity that due process considerations of notice and transparency require. Congress required the FCC to license satellite transmissions. It required the Department of Transportation (DOT) to license the launch of launch vehicles. Later it required DOT and the FAA to license the reentry of reentry vehicles as well. Congress also mandated that the seemingly benign activity of taking pictures of Earth—“remote sensing,” in the vernacular—requires regulation, too. The point is, each time Congress determined that something required oversight, it identified the activity in question, and it did so with sufficient clarity that persons of ordinary intelligence could tell what was forbidden and what was required.

As a matter of policy, the U.S. Congress may determine that there are good reasons to expend government resources and the taxpayers’ dollars on a particular activity. Hypothetically, Congress could say that robotic mining of rocks in space really far away does not require regulation because no one lives on that rock, it has no visitors, and no one will get hurt by it. Or, it could say that bringing all those platinum group minerals back to Earth at once will wreak havoc on the economy and then set up an agency to oversee pricing. Or not. In another scenario, even if Congress ignored asteroid mining, it might forbid the reentry of anything large enough to make a crater the size of the Yucatan. These are all the types of considerations that may lead to legislation and regulatory oversight. But they are not in Article VI.

Just as there are serious activities that someone may say require oversight, there are a host of other activities that don’t.  One hears no lamentations over the lack of authorization of space tourists. Space tourists exist now. Lunar habitats and space mining don’t. If this were an American pie would it need a license? At the Galloway it was suggested that space tourists are covered by a launch license. That doesn’t seem right, because launching and tourism are very different activities. If space tourists could be covered by a launch license for purposes of satisfying Article VI, why couldn’t an orbiting habitat be covered by its FCC license?

In short, Article VI leaves at least three decisions to each country that signed the Outer Space Treaty: What form should an authorization to take? How frequent must the continuing supervision be? And, what activities require any authorization at all? If Congress doesn’t think playing the harp in space requires authorization, then it doesn’t, and the U.S. is still in compliance with Article VI.

Treaty Conformity

As a side note, Article VI does require each country that signed the treaty make sure its nationals’ activities are “carried out in conformity with the provisions set forth in the present [t]reaty.” Some say that means a non-governmental entity must comply with all the treaty provisions, even the ones that only apply to nation states.  The better interpretation might more accurately apply to nationals only the treaty provisions that apply to nationals.  There aren’t a lot of provisions that apply to non-governmental entities, but Article IX does require a country to consult with another country if it has reason to believe an activity planned by it “or its nationals” might interfere with that other country’s peaceful exploration and use of outer space.  (For a related discussion of why Article IX’s restrictions on harmful contamination do not apply to the private sector, see this.)

 

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