On February 7, 2017, at the FAA’s Commercial Space Transportation Conference, Representative Brian Babin, Chairman of the Space Subcommittee of the House Science, Space and Technology Committee spoke on how the U.S. can fulfill its international obligations for commercial actors in outer space. If you wish to read his whole speech, this link will take you there: FAA conference Feb 7 2017 . Among other topics, he addressed questions raised by Article VI. As GroundBased readers know full well, Article VI of the Outer Space Treaty states that “[t]he 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.” The Chairman responded to this provision in a very thoughtful fashion. First, he lays out the domestic philosophy of governing.
[T]he government’s role isn’t to give you permission to do something. The government’s role should be limited to only those areas that require its intrusion, which is a high bar. The burden of proof shouldn’t be on the individual to demonstrate the “right” to act; the burden of proof should be on the state when it seeks to restrict liberty.
In thinking about how this clear statement of philosophy might play out, I see two possible paths. In the one path, the executive branch’s agencies would recognize that because Article VI is not self-executing, and if Congress hasn’t passed a law like it did when it told the FAA to authorize launch, reentry and spaceports, then Article VI poses no barrier to any particular activity. In the second, Congress itself would pass legislation reminding everyone of that point. (I am nervous about processes where Congress would assign an agency the job of “defaulting to approval.” I suspect that was the original intent behind the FAA’s payload review, but I’m not sure it’s worked out that way. The better course might be to create a notification regime, or, better yet, to ensure that an applicant need apply for nothing to operate in outer space.)
The Chairman also discussed what he did not want to see:
[T]he Constitution places the responsibility upon Congress to make legislative determinations regarding what requires federal authorization and supervision. It should not be the case that everything anyone does in outer space requires federal approval. Article 6 grants States the discretion to decide what must be authorized to assure conformity with treaty obligations and how it is to be supervised. Transferring this authority to the executive branch raises serious concerns given how vast the scope of regulatory oversight would be.
Legislative Responsibility and Due Process. Chairman Babin raises a couple of interesting legal points with this observation. As he notes, it is Congress, not the Executive Branch that makes the legislative decisions about what requires federal oversight. Also, if the U.S. decides that more private activities in outer space require oversight, we should identify what those activities are. As the Supreme Court has said on more than one occasion, due process considerations of notice and transparency require that an ordinary person be able to tell what is forbidden and what is required. Saying everything must be authorized would be so broad as to create constant confusion. People would convince themselves that the law cannot possibly apply to playing the piccolo or anything else equally mundane. But we lawyers read the words of a law with exactitude, and if the law says everything then the law means everything. The agency charged with enforcing any such law would have to apply the words as written. Recently, we’ve seen pie in the sky and a proposal for lunar brewing. Are those activities so hazardous they require the expenditure of taxpayer resources?
Discretion. The Chairman is correct to note that the treaty “grants States the discretion to decide what must be authorized to assure conformity with treaty obligations and how it is to be supervised….” (Emphasis added). This means that a country might decide not to regulate the lunar harpist, but go all in on the lunar brewer.
The Chairman also echoes the Supreme Court in noting that, for a treaty that is not self-executing,
the executive branch, unless explicitly authorized by Congress, should not deny an American citizen the right to explore and use Outer Space. I hope that the incoming Trump Administration will closely examine this topic, because this question of how we will regulate our private sector activities is not simply academic. I believe it is one of the fundamental space policy questions of our time. America is great because it is a country where you have the freedom to create without government permission. We are all free, unless we chose, through our legislative process, to limit our freedoms.
Self-executing. As this blog has discussed, Article VI is not self-executing, which means that Congress must provide direction before the executive branch may attempt to enforce that provision. It would be wonderful indeed if the new Administration were to issue a statement recognizing that if Congress has not forbidden a space activity, then that activity is allowed, thus putting to bed the regulatory uncertainty that plagues some. Then, if an agency sought more authority over the private sector it would have to go through the usual exercise of demonstrating to Congress a real need to burden the private sector.