Dr. Jerry Hendrix and Adam Routh of the Center for a New American Security (CNAS) recently published A Space Policy for the Trump Administration. For those interested in what the authors have to say about civil and national security space, please follow the link. This analysis focuses on interpretations of the Outer Space Treaty that could aid space commercialization.
Outer Space Treaties. In what is music to my own ears, the authors advocate:
significant changes in the nation’s interpretation and enforcement of international laws that apply to space activities [and] expansion and freeing of the commercial space sector to fully harness the resources and wealth of space, … .
Specifically, the authors propose that the administration provide clarifying guidance on the space treaties:
Ambiguity in the 1967 Outer Space Treaty is both a benefit and a curse: although allowing countries to interpret the requirements and restrictions may provide a certain level of freedom, the treaty also contains internal conflicts that provide grounds for possible future conflict with regard to resource development. The Trump administration needs to provide a clear strategy for U.S. space policy efforts and assert a broader interpretation of the 1967 Outer Space Treaty. Because crafting a new international space agreement would be time-consuming and difficult, the best strategy is to provide clarifying guidance with regard to interpreting the current treaty for both domestic and international space actors.
The authors recommend proposing legislation to authorize and supervise space activities, but I did not find in the proposal the significant changes in interpretation that the authors earlier advocated. My own view is that the administration could reduce regulatory uncertainty regarding Article VI’s requirement that each country authorize and continuously supervise the acts of its national in outer space. A simple Executive Order might suffice to rein in those regulatory agencies that believe they can and should deny access to space on the basis of a non-self-executing treaty provision such as Article VI.
The authors quote my testimony regarding Article VI, specifically that “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.” What I hope they understand is that one of the points I was making was that not all activities require authorization and supervision. From a standpoint of national interest, it would be reasonable for the U.S. to decide that only those activities which would, as the first portion of Article VI says, require the United States to “bear international responsibility” serve as candidates for regulation. This suggests that the United States should authorize and supervise private activities that might expose the country to liability claims, namely, dangerous activities for which regulation would provide some added value. Thus, the manufacture of cigarettes in orbit might require regulation, whereas robotic mining in the asteroid belt might not. Other space activities do not, under current law, require authorization.
The authors recommend a light regulatory touch. One important point to remember is that no regulatory touch stays light forever. When it passed the Federal Aviation Act, Congress directed the FAA to impose minimum standards in the interest of safety. Hardly a day goes by now that the FAA does not issue new airworthiness directives. Similarly, back when the Departments of Commerce and Transportation were each vying to be the agency that regulated commercial space transportation, the decision was made, according to Norman Bowles’ description of events, on the basis of an agreement that the Office of Commercial Space Transportation not be placed in the FAA. Guess where it is now? (Personally, I think the FAA is as good a place as any to house commercial space transportation, but I raise the matter to show that unwritten understandings and intentions don’t always survive changes of personnel.)
Accordingly, Article VI is one treaty provision that would benefit from the authors’ recommendation that “the best strategy is to provide clarifying guidance with regard to interpreting the current treaty.” Rather than calling for the passage of more legislation mandating regulation—however “light”—the President could issue an executive order clarifying that Article VI does not provide regulatory agencies such as the Federal Aviation Administration grounds for denying access to space.
Property Rights. Property rights provide another opportunity for interpreting the Outer Space Treaty in a manner conducive to private investment and enterprise. Article II of the treaty says:
Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
Article II’s bar applies to national appropriation, not private appropriation. Given that Article II itself applies to national appropriation it, on its face, does not implicate private appropriation. To the extent that Article VI calls for countries to ensure their nationals’ conformity with the treaty, a less burdensome interpretation of Article II’s national appropriation ban would be that Article II did not intend private actors to serve as a conduit for national appropriation. Accordingly, state owned enterprises would not be able to appropriate outer space, but purely private entities could. The President could make clear by Executive Order that this is the U.S. interpretation, thus reducing uncertainty for investors and the rest of the private sector.