On March 23, 2018, the Administration released its new National Space Strategy as part of its broader national security policy. The Strategy applies to infrastructure and security, but it also addresses commercial regulatory issues. In doing so, it suggests that the Administration plans to interpret the outer space treaties so as to avoid unnecessary regulation. Because of the Strategy’s very general language, the Administration leaves itself a lot of room to maneuver, but one can hope.
For starters, the Strategy “ensures that international agreements put the interests of American people, workers, and businesses first.” Additionally, it “prioritizes regulatory reforms that will unshackle American industry and ensure we remain the leading global provider of space services and technology.” Hopefully, this means that the Administration will not allow the regulatory agencies to deny private actors access to space on the basis of non-self-executing treaty provisions. I’ve discussed all this before (more than once, even), but now seems like a good time for a reminder.
There are three controversial provisions of the Outer Space Treaty where the the U.S. Government could, when interpreting those provisions, correctly interpret them in favor of commercial operators. The provisions include Article VI’s call for the authorization and continuing supervision of non-governmental entities in outer space; Article II’s prohibition on national appropriation of outer space, including celestial bodies; and Article IX’s requirement that States Parties pursue their studies and exploration of outer space so as to avoid harmful contamination to outer space and adverse changes in Earth’s environment from extraterrestrial matter.
Article VI. Article VI says that, “The activities of non-governmental entities in outer space, … shall require authorization and continuing supervision by the appropriate State Party to the Treaty.” Article VI does not say that either all or any particular activity must be authorized, leaving decisions regarding what activities require regulation to the member states. Additionally, Article VI is not, under U.S. law, self-executing, which means that it does not create an obligation or a prohibition on the private sector unless and until Congress says it does.
The previous administration interpreted Article VI to require the authorization of any and all non-governmental activities in outer space. Additionally, the Federal Aviation Administration has indicated that it may deny a private entity access to space because of Article VI. In the United States, the FAA’s position ignores Supreme Court law regarding non-self-executing treaties. Although the Constitution describes treaties as the supreme law of the land, they must be self-executing in order to be enforceable federal law without implementing legislation from Congress. As the Supreme Court has noted, “not all international law obligations automatically constitute binding federal law enforceable in United States courts.” In the case of Medellin v Texas, the Supreme Court held that not even the President could execute a non-self-executing treaty provision. The regulatory agencies should thus not claim the power to use Article VI, which is non-self-executing, to deny a non-governmental entity access to space. That would only shackle the commercial space industry.
Private conformity with provisions that apply to “States Parties”. Some 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. This approach ignores the plain language of the treaty and would create unnecessary burdens in the context of property rights and harmful contamination.
Conforming to the treaty should not mean that what is forbidden to States Parties must be forbidden to private entities as well. The treaty doesn’t say that. A review of the treaty shows that most of it applies to “States Parties.” When the treaty’s drafters meant a provision to apply to non-governmental entities they said so, such as in the non-interference provision of Article IX. Accordingly, when we determine with which provisions a private entity must conform, we see that very few apply to private actors. Thus, we can see that Article II’s bar on national appropriation does not ban private appropriation. Likewise, Article IX’s admonition that States Parties to the treaty avoid harmful contamination of outer space and adverse changes in the Earth’s environment applies only to States.
If the Administration does indeed mean to ensure that international agreements put the interests of American people and businesses first, we may hope that it will interpret and apply existing treaties with the same goal in mind.
Has the National Space Strategy been released in full yet? All I am seeing is the press release/fact sheet. A link would be most appreciated–this is an important conversation.
All I’ve seen is the press release/fact sheet. And, yes, we’d all love to see the full version.
The link to the fact sheet is here: https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-unveiling-america-first-national-space-strategy/
Could a settlement on the Moon or Mars declare independence from its launching country(ies) and, not having been a signatory to the OST thereby claim its territory as its own national sovereignty? Might this be a beneficial approach that would recognize that it is the settlers themselves that give value to the land and also provide any entities on Earth (e.g. Libertarians) a path to earning their own nation? I would liken it to a “Northwest Compact” meaning an organized, self-generated means of national sovereignty.
I think better questions are: Who would stop them, and how would they do it?
That’s a very good point. I doubt that anyone would send soldiers or police up there. But having a pre-designed plan for independence could avoid a lot of misunderstanding.
Interesting that so much doubt was cast upon the Russians hacking us, but this is accepted at face value w/o question. That aside, not really sure why this means that Iran won”t abide by the nuclear treaty. Russia abided by its treaty even when it was the USSR and was actively financing wars against us. Next, the idea that anyone was pushing that Iran would be our friend is such a straw man that it ought to win the internet today. No one was pushing that idea, just like no one claimed that China or the USSR would be our friend by having a nuclear treaty. You don”t really need a nuclear treaty with the most invasive inspection plan in history if that country is your friend. You need it because that country is hostile. Once we get past the stupid, Rosenstein said that the hackers hit universities in many other countries (20?). I think this mostly shows that people don”t take security all that seriously and prioritize convenience. People who actually have jobs working with IT and are honest about it, not just coming to the internet to score points, know that the tradeoffs between these two are difficult. Throw in a workforce with disparate ages and computer skills and it gets worse. Steve
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