Opportunities for the President and Congress to Ensure that Regulatory Agencies Do Not Improperly Use the Outer Space Treaty to Deny Access to Space or Impose Burdensome Costs

There has been a lot of discussion in the past couple of years about whether and how the Outer Space Treaty applies to private companies such as lunar habitat operators and asteroid miners, and whether these private actors may be denied access to space until Congress passes a law authorizing them.  Additionally, there is continuing discussion over whether and how the federal government may apply NASA’s planetary protection policy to private actors in space.  As discussed on this blog and as I have testified, under the law the regulatory agencies may not deny private actors access to space or impose planetary protection on private actors.  What should be done when not everyone agrees?

Solutions are available. The President by Executive Order, or the Congress through legislation, could ensure that NASA, the State Department, and the regulatory agencies do not deny private operators access to space by attempting to enforce treaty provisions that do not apply and are not self-executing.  This could be done for both Article VI of the Treaty, which requires countries who signed the treaty to authorize and continuously supervise their “non-governmental entities,” and for Article IX’s mandate to avoid harmful contamination of celestial bodies.  Its “planetary protection policy” is how NASA avoids harmful contamination from its own activities.

Because neither of these parts of the Treaty are self-executing, and because they are thus not domestically enforceable federal law, the President could ensure that regulatory agencies such as the Federal Aviation Administration, the Federal Communications Commission, and the National Oceanic and Atmospheric Administration, as well as NASA and the State Department, do not deny access to space to private operators on the basis of Articles VI or IX.  An Executive Order is a perfect vehicle for ensuring that relevant portions of the government are reminded to comply with existing law.

Congress could follow a similar approach.  It could through legislation also direct the regulators that they may not deny or attempt to deny access to space on the basis of non-self-executing treaty provisions, including both Articles VI and the harmful contamination provisions of Article IX.

Authorization and Continuing Supervision.

The FAA’s press release about its 2016 favorable payload review of Moon Express’s operation of a spacecraft and lunar vehicle shows that the FAA is attempting to enforce Article VI against private actors, even without implementing legislation from Congress.  The FAA noted that Article VI requires authorization and supervision of the activities of non-governmental entities in outer space, and that the FAA consulted with and considered comments from the Department of State. With the State Department’s concurrence, the FAA announced that because it was able to enforce the representations that Moon Express made in its application for a payload review, this particular favorable payload determination complied with Article VI.

The FAA also made sure to note, however, that not all non-traditional missions would necessarily lend themselves to such a favorable outcome, and future missions may require Congress to grant the FAA additional authority “to ensure conformity with the Outer Space Treaty.” In other words, the FAA believes it has the legal ability or obligation to deny access to space to entities not authorized and continuously supervised under current law.

Article VI of the Outer Space Treaty 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.

The United States itself is in compliance with Article VI because the treaty leaves the decisions about how to comply with its rather ambiguous terms to each country. By its own terms, Article VI legally does not and cannot prohibit space operations by the commercial sector.  Instead Article VI leaves it to each country to decide which particular activities require regulation, how that regulation will be carried out, and with how much supervision. Accordingly, if Congress hasn’t said that a certain activity, such as lunar harp playing, requires authorization and continuing supervision then lunar harp playing does not.

Additionally, because Article VI is not self-executing, and because the Supreme Court in Medellin ruled that non-self-executing treaties are not domestically enforceable federal law, the agencies may not enforce this treaty provision against the private sector.  Just as in Medellin where a President could not unilaterally impose a treaty obligation on the states, regulatory agencies should not attempt to impose treaty obligations on the private sector without Congressional action.   An Executive Order could ensure that the agencies abide by this.  So could Congress by legislation.

Planetary Protection.  The harmful contamination provisions of the Treaty also call out for clarification.  Although NASA and the State Department are not regulatory agencies, they could use the consultation process of the Federal Aviation Administration’s payload review to attempt to apply NASA’s planetary protection policy, and so should be included in the directives of any Executive Order or new law.  In order to prevent such attempts, an Executive Order or a new law could note that the bulk of the Outer Space Treaty’s requirements apply to “States Parties,” and the United States and its agencies should not improperly interpret those provisions as applying to the private sector.

Article IX, for example, says:

States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose.

Some, including regulatory agencies, claim that Article VI’s provision that States Parties to the treaty assure “that national activities are carried out in conformity with the provisions set forth in the present Treaty” means that commercial actors must abide today, even absent legislation, by each provision in the treaty, even the provisions that only apply to governments.

The first reason to question the applicability of the “planetary protection” provision is that the treaty itself limits this requirement, like many others, to “States Parties.” States Parties are governments. When the drafters of the treaty intended a particular provision to apply to non-governmental entities they said so. For example, Article IX contains another provision that does apply to non-governmental entities, namely, the requirement for a State Party to consult if it “or its nationals” might interfere with others in outer space.

Secondly, even if it applied to non-governmental entities, Article IX’s harmful contamination provision is not self-executing. It requires the legislative branch to make numerous policy judgments, such as whether the goals of space science or space settlement should preempt one another or may be pursued together. According to NASA’s website, “planetary protection” is the term “given to the practice of protecting solar system bodies (i.e., planets, moons, comets, and asteroids) from contamination by Earth life, and protecting Earth from possible life forms that may be returned from other solar system bodies.” The means of ensuring this protection are expensive.

NASA is being a good steward with this approach, but the approach is not conducive to human settlement. If Congress were to legislate regarding Article IX’s goal of avoiding harmful contamination, Congress should make it clear that human beings are not a contaminant. If Congress settled that question, anything with equivalent or less biological baggage than a human being should not be required to undergo the expensive sterilization protocols now employed for government missions.  The United States could also take this opportunity to clarify its own interpretation of this provision as applying only to governmental operations in space, not to the operations of private actors.

We must keep in mind that when it ratified the Treaty the United States did not agree to apply Article IX’s harmful contamination provisions to commercial operators. Accordingly, until Congress acts, an Executive Order could direct NASA, the State Department, and the regulatory agencies that they do not have the authority to impose harmful contamination costs on the private sector.

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One thought on “Opportunities for the President and Congress to Ensure that Regulatory Agencies Do Not Improperly Use the Outer Space Treaty to Deny Access to Space or Impose Burdensome Costs

  1. Excellent article – a reminder that regulators cannot halt private activity in space so long as treaty requirements are complied with. The problems develop in the interpretation is the provisions in the Outer Space Treaty.

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