Congressional Letter to State Department over Proposed “Binding” UN Resolution on Norms of Behavior in Space

Representatives Frank Lucas and Brian Babin, ranking members of the House Science Committee and the Space and Aeronautics Subcommittee, respectively, expressed concern to the State Department over the administration’s interest in adopting binding rules of behavior for space activities through the United Nations.  The congressmen’s letter serves as a gentle reminder that it is Congress, not the Executive Branch, and not the UN, which writes the laws governing U.S. space activities.  This is especially so for private space activities.

Specifically, the congressmen pointed out that:

On February 24, 2021, SpaceNews published an article featuring an interview with Maj Gen DeAnna Burt, Commander, Combined Force Component Command, U.S. Space Command, and Deputy Commander, Space Operations Command, U.S. Space Force, about U.S. efforts to adopt rules of behavior in space. The article states, “Burt said a team of Defense and State Department officials is drafting language on the U.S. position on a resolution approved in December by the United Nations General Assembly which calls for ‘norms, rules and principles of responsible behaviors’ in space.” The article continued,“[t]he problem with previous UN resolutions is that they were non-binding, said Burt. ‘We’re going to prepare what we believe will be proposal language that will go to the UN and hopefully result in a binding resolution,’ she said.”

The letter observed that “Recommendations presented to the United Nations related to norms of behavior in space could implicate Congress’s Article 1 responsibilities.”  Referencing Article I of the U.S. Constitution is a polite way of reminding the administration that the Constitution grants legislative powers to Congress, not to others.  Article 1 says:

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

This means, as Congressmen Lucas and Babin point out, that–

any proposal offered to the United Nations could create confusion, complicate the enactment of statutes implementing such proposals, and conflict with existing statutes, policies, and constitutional rights. Failure to keep Congress informed could also be viewed as an attempt to limit private sector activities and undermine the rights of U.S. citizens by using treaties to circumvent Congress’s Article 1 prerogatives.

The administration’s proposal is being drafted.  If the proposal remains silent with respect to private actors in space, there should be less concern for the commercial sector over whether this resolution purports to be “binding.”  Even a treaty–which requires Senate ratification to enter into force–is not binding on the private sector unless it is self executing.  See, for example, my paper US Regulators May Not Prevent Private Space Activity on the Basis of Article VI of the Outer Space Treaty.

The referenced Space News article describes General Burt as addressing mostly issues of weapons in space.  She did, however, also mention norms of behavior for orbital debris, which could theoretically be intended to apply to both governmental and private sector space activities. As the Supreme Court noted in Medellin, the President’s foreign policy authority is neither interchangeable with nor a grant of legislative authority.  If a President’s attempt to use a non-self-executing treaty to bind the states didn’t work, no UN resolution should purport to bind the private sector.

We may hope that any UN resolution which tries to address commercial activity recognizes that it is Congress who imposes laws on the U.S. private sector, not the Executive Branch.

Speaking of orbital debris, my orbital debris novel, Manx Prize, has a new cover.  It’s hard science fiction with romance, ITAR, CFIUS, and a seastead.  What more could a reader want?  A print version?  Coming soon!