The Congressional Research Service published a paper in 2001, titled Treaties and Other International Agreements: The Role of the United States Senate.
The discussions of how Congress should implement the Outer Space Treaty, which requires nations to authorize and supervise the space activities of their nationals, don’t often dwell on Congressional obligations. They are merely assumed. This helpful paper makes it clear that Congress gets to determine how to implement international obligations.
Article VI of the treaty requires implementing legislation because Congress needs to identify what if any space activities require the expenditure of government resources to regulate, and what agency should regulate those activities. Perhaps the U.S. Department of Housing and Urban Development should regulate orbital and lunar habitats. Maybe the Department of the Interior, not the Commerce Department, should regulate mining. Just as Congress decides to whom it might grant regulatory authority, so does it decide what requires regulation. Lots of activities on the ground go unregulated. That they take place in space might not merit federal attention.
Congress is free to decide whether to appropriate funds to implement a treaty. So may it decide whether to pass legislation.
Disputes involving treaties commonly center on questions relating to a party’s implementation of its obligations. A question that may be raised under U.S. law is whether or not Congress has a duty to implement a treaty which is in force internationally, but which requires additional legislation or implementation or an appropriation of funds to give effect to obligations assumed internationally by the United States. When implementation of a treaty requires domestic legislation or an appropriation of funds, only the Congress can provide them.\57\ The issue of the extent of the obligation of Congress to appropriate money arose with debate on the Jay Treaty, the first treaty concluded under the Constitution. In the 1796 debates on appropriations for the treaty, Treasury Secretary Hamilton argued that as treaties are the law of the land, Congress was obligated to appropriate the money to implement them. Members of Congress, notably James Madison, maintained that the House was free to decide whether or not to approve appropriations regardless of any treaty obligations. The House eventually approved the request for funds, but appended to its approval a stipulation that it was free not to approve such requests in the future.\58\ The House manual note subsequent occasions when the House maintained the position that a treaty must depend on a law for its execution of stipulations that relate to subjects constitutionally entrusted to Congress.\59\
The Congressional Research Service addressed implementing legislation specifically:
Many treaties require legislation to ensure implementation on a national basis of the international obligations established by the treaty. Congress might include in that implementation legislation certain provisions to ensure a congressional role in monitoring implementation of the treaty. Implementation legislation of this sort is often one-time legislation related to a treaty, but like other legislation it may be amended.
As noted in last week’s post, Congress has a role in the interpretation and implementation of treaties, including the Outer Space Treaty. It’s good to see that Congress knows it.