The Mercatus Center published my legal paper this week on Article VI of the Outer Space Treaty, complete with an enervating quantity of footnotes.
Yes, it’s a long title but it has to be precise. After all, U.S. regulators may prevent some types of private space activity. The paper makes the narrow legal point that regulators may not deny private operators access to space for the wrong reason. I have written on this topic here in the past and testified to the Congressional space subcommittees about it.
From the Mercatus summary:
The US government is currently considering what new activities it should and should not regulate in outer space. Examples of new space enterprises include ventures such as satellite servicing, asteroid mining, lunar transport, and orbital habitats. Government discussions are focused on the provisions of the Outer Space Treaty, which was signed in 1967 by the United States, the Soviet Union, and other countries.
In the meantime, commercial companies face considerable regulatory uncertainty in this area. Particularly significant is the posture of the Federal Aviation Administration (FAA). The agency believes that Article VI of the Outer Space Treaty grants it the authority to deny access to space to any unauthorized and unsupervised entities.
Article VI declares the following: “The activities of non-governmental entities in outer space . . . shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”
Laura Montgomery shows that, contrary to the FAA’s claim, Article VI should not be viewed as a barrier to private entities seeking to operate in outer space.
Montgomery bases her analysis on two main points:
- Article VI is not self-executing. This means that it is not enforceable federal law unless Congress enacts domestic implementing legislation. Congress would have to identify what activities require authorization and assign regulatory authority in this area to a particular agency.
- The FAA is overreaching. Absent congressional action, the FAA and other regulatory agencies may not rely on Article VI to deny space access to private actors. Attempting to do so usurps the role of Congress.
Article VI of the Outer Space Treaty has caused confusion for private-sector enterprises seeking to operate in outer space. Simply understanding that Article VI is not self-executing and thus not enforceable should go a long way toward reducing any uncertainty. Alternatively, the executive branch could make clear that it will not attempt to deny private actors access to space on the basis of Article VI.
Montgomery’s analysis shows that private entities may operate in outer space—and they may do so even without authorization or supervision. Absent congressional action, the FAA and other regulatory agencies may not rely on Article VI to attempt to deny access to space.
Like the man said, read the whole thing.
While I cannot say who “owns” the airspace above your property, the FAA claims “exclusive jurisdiction” over “national airspace”. The FAA is the sole authority when it comes to use of national airspace, and as such, FAA restrictions are the only ones that are legally enforceable nation wide. A critical distinction needs to be made between where a pilot flies “from”, as opposed to where the drone itself flies. Property owners can restrict pilots from launching or operating drones from their property, but only the FAA can restrict the use of the airspace itself. Even other Federal Agencies defer to the FAA in all matters regarding use of national airspace. For example, the National Park Service has acknowledged that the restriction against flying drones in National Parks only applies to the launching/landing (piloting) of drones from INSIDE park boundariesNOT the use of the airspace above the park by pilots physically standing outside a parks boundary. Said another way, there is no FAA restriction against flying over National Parks, and the National Park’s do not restrict the use of the airspaceonly the operation of a drone by a pilot physically standing on park property. In the same light, no property owner, be they State, County, Local or Private can legally restrict the use of the airspace above their property. So, back to the beginning Who owns the airspace above your property??? For all intents and purposesthe FAA, and only the FAA!
I’d agree that the FAA is regulating that airspace, but not that it owns it.