This is not new news, but it’s interesting to consider in the context of concerns anyone may have over whether human settlement would upend NASA’s planetary protection policy. The one is a law. The other is just a policy.
Congress has told NASA that the agency’s long-term goals must enable the extension of a human presence beyond low-Earth orbit and into the solar system, “including potential human habitation on another celestial body and a thriving space economy in the 21st Century.” 42 U.S.C. § 18312. More explicitly, Congress told NASA to work toward eventual “human habitation on the surface of Mars. 51 U.S.C. §70504(b). No, I don’t know why it has to be on the surface. Yes, underground might be safer, but linguistic overindulgence in the drafting of laws requires a separate analysis of its own.
As a science agency that is part of the U.S. Government, NASA has interpreted Article IX of the Outer Space Treaty to mean that the agency’s missions must not only avoid what the ordinary person might consider harmful contamination—no toxins, no Agent Orange, no peanuts on the aircraft—but microbial contamination as well. NASA tries to limit the presence of bacterial spores on any out-bound surface to no more than 300,000. Accordingly, NASA requires the sterilization of its spacecraft to avoid bringing microorganisms to Mars. The European Space Agency follows similar measures.
People are covered in bacteria, but the law says NASA must work to enable a human presence on Mars. It might be time to recognize that a Congressional mandate overrides an agency policy.
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.
On Tuesday this week, May 23, the Senate Subcommittee on Space, Science, and Competitiveness held a hearing titled Reopening the American Frontier: Exploring How the Outer Space Treaty will Impact American Commerce and Settlement in Space. There were two panels, and I was on the first panel with my friends and colleagues Jim Dunstan of Mobius Legal Group and Matt Schaeffer, professor of law and co-director of the space, cyber and telecommunications program at the University of Nebraska’s law school. We were asked to address possible impacts of the Outer Space Treaty on the expansion of our nation’s commerce and settlement in outer space. My testimony is available here, and Professor Schaeffer’s is available here.
Mine is substantially similar to what I provided the House space subcommittee in March, but this time I emphasized more the importance of recognizing that the “harmful contamination” provisions of Article IX do not apply to private actors, and that human beings should not be treated as contaminants no matter how germy we are.
I found Jim Dunstan’s testimony particularly helpful and edifying, and strongly urge everyone to read the whole thing, but I want to highlight certain of his points. He makes some of the same points I have stressed in the past with regard to the import of Article VI’s call for authorization and supervision not being self-executing, but he has his own take on why the United States need not regulate more than it already does. The following outtakes highlight Jim’s perspectives:
The “authorization” and “supervision” components of Article VI are subsidiary to the overall structure of Article VI which places both the responsibility and liability for treaty violations and damages for space activities on the nation itself. A failure to either authorize or continually supervise the activities of private nationals merely increases the risk that a country might be liable for damages;
Article VI is not “self-executing,” meaning that the authorization and supervision language is not the “law of the land” in the United States, absent domestic legislation implementing Article VI. The case of Medellin v. Texas makes a clear distinction between treaty provisions that, by their language and nature, become the “law of the land” in the U.S., and those treaty provisions that require domestic implementation to have the force of law;
The Tenth Amendment (echoing the Declaration of Independence) provides the required “authorization” component of Article VI for Americans;
Congress has the discretion, as a matter of both international and American constitutional law, to decide how to implement its Article VI responsibility to provide “ongoing supervision” for private American actors in space;
With respect to Article VI and the previous administration’s report calling for the regulation of all U.S. missions in space he says:
The White House report notes, correctly, that some planned missions involve activity that is not currently regulated and then concludes, incorrectly, the U.S. is not meeting its obligations under Article VI. But Article VI does not, in and of itself, require any specific form of authorization and supervision—or that, in the absence of such, non-governmental activities are prohibited.
Interestingly, Jim ties treaty compliance to the fact that Article VI explicitly lays out the consequences for any lack of authorization and supervision:
A lack of supervision is not, in and of itself, a violation of international law; it merely raises the chances that a non-governmental activity might run afoul of the OST prohibitions and that the country responsible be held liable for consequential damages because that country’s citizens seek to engage in a behavior that is a per se violation of the OST, or creates a probability that those activities will interfere with the activities of another space activity resulting in harm (e.g., orbital collision or frequency interference). Congress now has the opportunity to decide where on that continuum of regulation it wishes to place the United States.
This might mean, as well, I’m figuring, that even a country that puts round the clock surveillance on its private actors and asks for the whole gamut of risk assessments, hazard analyses, mitigation plans, FMECAs, and FMAs before granting an authorization, may still be internationally responsible for any damage that private actor might cause. One response to this liability exposure that we’ve seen in the United States is to require launch and reentry licensees to obtain third party liability insurance under 51 U.S.C. ch. 509.
As for authorization, Jim looks to the Tenth Amendment of the Constitution:
The White House Section 108 Report also ignores the fact that in the United States, innovative outer space activities are already authorized. That authorization predates the space era by nearly 200 years. As Americans, we declared in 1776 that “[w]e hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The Tenth Amendment to the U.S. Constitution carries through this concept when it states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In short, absent a constitutionally consistent law prohibiting “innovative space activities,” Americans are authorized to pursue those activities. In other words, that which is not forbidden is permitted.
The above provides real food for thought, and I applaud Jim’s insights and am very glad he shared them with the subcommittee.
I don’t agree that Article IX ‘s harmful contamination provisions are self-executing or even applicable to private actors, applying as they do to “States Parties,” but I addressed that in my own testimony, as linked above.
Sometimes when you start a new project or line of inquiry it’s helpful to knock out the deadwood first. Then you can work on the bits that will get you somewhere. I want to understand private property rights in outer space, and lots of people say the Outer Space Treaty forbids a private person’s rights in “real property,” namely, land. Article II of the Outer Space Treaty isn’t deadwood. It forbids national appropriation in outer space. Article IX, however, might be. I want to address it first because I have heard theories floated about how it may protect some property interests.
In law school we learned that property rights were a collection of rights, which one could separate and parcel out. My property professor called them a bundle of sticks. You could have a lifetime interest in a bit of land but no ability to sell it. That’s not the whole bundle, but it’s not nothing. You could lease someone’s land for a year, but then have to leave it. (That’s more of a twig.) Both the lease and the lifetime interest constitute limited property rights. My question then is: does Article IX afford some form of property right, not all of them, necessarily, but some?
It’s always nice, when practicing law, to read what the words say, since they are the best expression of what someone meant. When you’re writing a law or regulation, you’re supposed to say what you mean and mean what you say, so we’ll figure that applies to treaties, too. Given the Supreme Court’s propensity for treating treaties like contracts, this is likely a sound approach. So, what does Article IX say? Continue reading →
What follows is my written testimony to the House Space Subcommittee on the role the Outer Space Treaty plays in the regulatory responsibilities of the United States. It’s long, and much of it will be familiar to regular Ground Based readers, but there are some new thoughts regarding paths forward, and it puts together what I have covered here over the past months.
Testimony of Laura Montgomery
Before the Committee on Science, Space, and Technology
Subcommittee on Space
Regulating Space: Innovation, Liberty, and International Obligations
March 8, 2017, Rayburn Building
Chairman Babin, Ranking Member Bera, and Members of the Subcommittee, thank you for inviting me to participate in this important discussion and to address the role Article VI of the Outer Space Treaty plays in the regulatory responsibilities of the United States. As someone who hopes to see people beyond Low Earth Orbit again in my lifetime, and who hopes to see commercial space operations other than launches, reentries, and communications satellites, I respectfully recommend that the United States not regulate new commercial space activities such as lunar habitats, mining, satellite servicing, or lunar beer brewing for the wrong reason: the belief that Article VI makes the United States regulate either any particular activity or all activities of U.S. citizens in outer space. Regulations already cost American industry, the economy, and the ultimate consumer upwards of four trillion dollars, according to recent research from the Mercatus Center, so we should think carefully before creating more drag on the space sector.
A misunderstanding of the Outer Space Treaty looms as possible regulatory drag, because many claim Article VI of the treaty prohibits operations in outer space unless the government authorizes and supervises—which I’ll refer to as “oversees” or “regulates”—those activities. Although Article VI 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,” to interpret this as forbidding unauthorized, private space activity is wrong for three reasons. The treaty does not forbid private operators from operating in outer space. It does not say that either all or any particular activity must be authorized. And, finally, Article VI is not, under U.S. law, self-executing, which means that it does not create an obligation on the private sector unless Congress says it does.
In order to put to bed the regulatory uncertainty arising out of these misunderstandings, Congress could take a number of different approaches. The most certain and long-lasting approach, however, and the one that would reduce the opportunities for confusion, misunderstanding, and regulatory overreach, would be for Congress to prohibit any regulatory agency from denying a U.S. entity the ability to operate in outer space on the basis of Article VI. Continue reading →
I was going to title this “Does Planetary Protection Apply to the Private Sector?” However, various corners of the internet mock the use of questions in headlines, so I was too chicken. But, at the end of the day—or perhaps of the century—that is the question; and in the United States the answer must come from Congress.
Background Article IX of the Outer Space Treaty provides that States Parties must pursue their studies and explorations so as to avoid “harmful contamination” of the moon and other celestial bodies and “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.” As a science agency that is part of the U.S. Government, NASA has interpreted this to mean that its missions must not only avoid what the ordinary person might consider harmful contamination, but microbial contamination as well, limiting the presence of bacterial spores on any surface to no more than 300,000. Accordingly, NASA requires the sterilization of its spacecraft to avoid bringing microorganisms to Mars. ESA, the European Space Agency, follows similar measures.
These measures are expensive. ESA describes the creation of clean rooms. NASA bakes its spacecraft. The space agencies spend money on preparing protocols, training technicians, sampling, testing, and devising new and more stringent requirements. Although it is difficult to find information about the costs of planetary protection, one expedition cost somewhere between $80 to $100 million in 2003 dollars.
People are full of microorganisms. I’m no biologist, but I think there are far more than 300,000 bacterial spores on the surface of the human body, never mind what’s inside us. Are we planning to prohibit people on Mars? Probably not. I hope not.
The question does, however, highlight the existence of competing interests. Science agencies want to do science. They have interpreted the directive against “harmful contamination” to mean no harmful contamination to science. The space agencies have now had decades to perform their scientific studies and exploration, and others, including commercial actors, are interested in going to Mars as well. This means that other human interests aside from science will take the stage. Those interests may range from space settlement, with its attendant needs for air, agriculture (albeit in high-tech greenhouses), and manufacturing, to tourism, leisure, art, and mining.
These interests are not obviously less important than the question of whether there is life on Mars. That’s an important issue, even if the life found is less complex than Edgar Rice Burroughs’ Tars Tarkas. The question is, who decides?