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Legislation intended to streamling the regulatory process for new space applications, like satellite servicing, raises questions about interpretations of the Outer Space Treaty. (credit: Orbital ATK)

Seeing shadows of rights: What is the intent of Congress in HR 2809?


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The House of Representatives took up HR 2809, the American Space Commerce Free Enterprise Act. and passed it by voice vote on April 24. The bill, which was introduced last June, significantly changes the licensing process for private space activities, including the federal agency responsible for approving private space activities. This piece will not examine the details of HR 2809 as they have yet to be reconciled with the Senate and whatever version of a commercial space bill it produces. Rather, this essay will look at the underlying paradigm HR 2809 embodies: that private space activities are a right of US citizens and not a private interest created and authorized by the federal government. The author prefaces this essay by emphasizing that. Despite some opinions to the contrary, the Outer Space Treaty and Article VI in particular apply to space activities performed by private actors (see Michael Listner, “Op-ed: A Reality Check on Article VI and private space activities,” SpaceNews, June 6, 2017).

Privilege or fundamental right?

HR 2809 appears to displace the nature of private spaceflight as a private interest and promotes it as a fundamental right, but this makeover did not begin with this bill.

At its essence, private activities are a private interest granted by the government per its treaty obligations under international law, including Article VI of the Outer Space Treaty (see “International space law and commercial space activities: the rules do apply”, The Space Review, June 3, 2013). In other words, private spaceflight is privilege subordinate to the fundamental right of free movement much in the same way a driver’s license or a license to pilot an aircraft is a privilege to a fundamental right and not a right in of itself. A “private interest” is in effect a privilege granted by an executive authority.1 A private interest is sometimes granted ancillary to a “right” with the caveat the private interest is subject to oversight of the authority granting it. For example, states, through their executive agents, grant the private interest of operating motor vehicles on state roads and highways, which states can revoke if it determines it is unsafe for an individual to operate a motor vehicle.2 A private interest cannot be deprived without due process, and is true for the private interest of operating a motor vehicle, piloting an aircraft, or performing private space activities, otherwise it could amount to a taking under the Fifth Amendment of the US Constitution.3 It is this principle the FAA, through the Office of Commercial Space Transportation, applies through the licensing authority granted by National Space Policy and Congress through Title 51, Chapter 509, including due process for revocation of a license issued under the statute.4

HR 2809 appears to displace the nature of private spaceflight as a private interest and promotes it as a fundamental right, but this makeover did not begin with this bill. The foundations of the concept of private spaceflight as a right found support by Rep. Brian Babin (R-TX), chairman of the House Science Committee’s space subcommittee, at a breakfast for the Commercial Space Flight Federation on September 13, 2016. The heart of Representative Babin’s address focused on the regulatory scheme currently used to regulate the commercial space industry. During his address, Babin stated:

[T]he government’s role isn’t to give you permission to do something. The government’s role should be limited to only those areas that require its intrusion, which is a high bar. The burden of proof shouldn’t be on the individual to demonstrate the “right” to act; the burden of proof should be on the state when it seeks to restrict liberty.

Whether unwittingly or not, what Babin described in his address is a constitutional examination called strict scrutiny, which determines if there has been a denial of equal protection or a fundamental constitution right. Under the strict scrutiny test, the state is required to demonstrate a compelling interest for the law in question and demonstrate the law is the least restrictive means to achieve the state’s end. By alluding to strict scrutiny, Congressman Babin implies private spaceflight is a fundamental right or implicates a fundamental right (the right of free movement) and the government must show a compelling state interest to restrict it.

HR 2809 echoes this sentiment:

SEC. 2(b) Policy.—It is the policy of the United States that—
(1) United States citizens and entities are free to explore and use space, including the utilization of outer space and resources contained therein, without conditions or limitations;
(2) this freedom is only to be limited when necessary to assure United States national security interests are met and to authorize and supervise nongovernmental space activities to assure such activities are carried out in conformity with the international obligations of the United States under the Outer Space Treaty;

These assertions can be boiled down to two principles:

  • Private space activities are a fundamental right; and
  • The “right” to perform private space activities can be infringed upon if there is a compelling state interest, i.e. national security and compliance with international legal obligations.

HR 2809 exemplifies this viewpoint when it comes to review of a proposed space activity with regards to international legal obligations:

“§ 80103. Certification application and requirements –

(c) Compliance with the Outer Space Treaty.—
“(1) IN GENERAL.—If the Secretary determines, with clear and convincing evidence, that the proposed operation of a space object under an application for a certification under this chapter is a violation of an international obligation of the United States pertaining to a nongovernmental entity of the United States under the Outer Space Treaty—
“(A) the Secretary may condition the proposed operation covered by the certification only to the extent necessary to prevent a violation of such international obligation; or
“(B) if the Secretary determines that there is no practicable way to condition such certification to prevent such a violation, the Secretary may deny the application.”

Specifically, the term “shall” in Article VI creates a mandatory legal duty to bear international responsibility for both national and non-governmental space activities and for the State to authorize and continually supervise non-governmental space activities.

HR 2809’s baseline assumption—private spaceflight is a right as opposed to a private interest—triggers a flip in the burden of proof from the applicant having to demonstrate its proposed payload or activity does not violate international legal obligations to the government having to defend its decision to deny an application by providing clear and convincing evidence the proposed activity would violate international law. In other words, the government would be required to demonstrate a compelling state interest to deny the applicant the “right” to perform the proposed space activity.5

Despite the presumption private space activities are a “right,” both Babin and HR 2809 miss the ordinary meaning of Article VI does not create nor anticipate a fundamental right for private individuals but rather creates a right in the State.

Private space activities and Article VI

One of the prominent principles in interpreting a treaty is the intention of the parties as expressed in the text, giving the terms their “ordinary meaning.” Only when the text is unclear is resort to other means of interpretation necessary.6 Article VI has three distinct directives concerning space activities, but only the first two relate to private space activities:

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 operative legal term in Article VI is “shall,” which creates a legal duty when used in a legal document like a treaty. Specifically, the term “shall” in Article VI creates a mandatory legal duty to bear international responsibility for both national and non-governmental space activities and for the State to authorize and continually supervise non-governmental space activities. This does not mean a State like the United States is compelled to authorize non-governmental space activities, but it does permit the State to create a private interest to allow non-governmental entities to perform space activities. Since the United States has chosen to grant a private interest in space flight via national space policy and legislation, it must authorize and continually supervise those activities subject to Article VI and other legal obligations under international law as well as its own domestic laws.7

It is puzzling how HR 2809 can infer a fundamental right for non-governmental entities to perform outer space activities.

Additionally, the phrase “by the appropriate State Party” creates the obligation in the State to grant the authorization should it choose to permit non-governmental space activities; it does not create the authorization as a matter of right to non-governmental entities, but rather Article VI tacitly creates a right in the State to authorize non-governmental entities the privilege of performing space activities subject to its jurisdiction. In summation, Article VI does not forbid non-governmental entities from performing space activities nor does it grant a right to non-governmental entities to perform space activities, but it does establish a right in the State to permit non-governmental entities to perform space activities and imposes a legal duty to authorize and supervise those activities as well as bear national responsibility for the same.

Giving the terms of the Outer Space Treaty and Article VI in particular their ordinary meaning, it is puzzling how HR 2809 can infer a fundamental right for non-governmental entities to perform outer space activities.

A permissive interpretation of the Outer Space Treaty?

If the baseline intent of HR 2809 is to recognize private space activities as a fundamental right, does this represent a further march towards reciting the Outer Space Treaty as idiom? Consider another section of HR 2809 dealing with compliance with the Outer Space Treaty:

“§ 80103. Certification application and requirements –

(c) Compliance with the Outer Space Treaty.—

“(2) LIMITATION FOR DETERMINATIONS.—A determination under paragraph (1) shall be limited as follows:
“(A) The Federal Government shall interpret and fulfill its international obligations under the Outer Space Treaty in a manner that minimizes regulations and limitations on the freedom of United States nongovernmental entities to explore and use space.
“(B) The Federal Government shall interpret and fulfill its international obligations under the Outer Space Treaty in a manner that promotes free enterprise in outer space.
“(C) The Federal Government shall not presume all obligations of the United States under the Outer Space Treaty are obligations to be imputed upon United States nongovernmental entities.”

In other words, HR 2809 delimits how the Outer Space Treaty and its legal obligation, including Article VI, are to be applied, which means the “ordinary meaning” and other customary methods of interpretation are optional if they infringe on the “freedoms” of private actors to perform space activities to include taking the right granted to the State under Article VI and granting it to nationals under the jurisdiction of the United States.

Unlike the case for justifying the legality of space resources, which takes advantage of the silence of the Outer Space Treaty, finding a fundamental right would be an accommodating interpretation of the plain text of the Outer Space Treaty as opposed to its “ordinary meaning.”

What is the intention of Congress?

Is it the intent of Congress to create a fundamental right for private space activities for US nationals or is the implication merely words of political edict? Now that HR 2809 is passed, the Senate will have its say, not only with reviewing the bill but also with its own draft bill reportedly in the works. Whether the Senate reconciles language of HR 2809 with its bill remains to be seen, but it does have the opportunity to come out and resolve the ambiguity with clear concise language: i.e. is the legislation intended to create a private interest or a fundamental right? If the Senate drops the ball and instead merges the implication of a fundamental right into the final language of whatever commercial space law emerges, the ultimate resolution of what that law creates may be left to the courts.

HR 2809 contains a dispute resolution provision that could provide a forum to resolve the issue. Consider the following provision:

Ҥ 80303. Appeal of denial or condition of certification or permit

“An applicant who is denied a certification under section 80103(b)(2)(B), an applicant who is denied a permit under section 80202(b)(2)(B), or an applicant whose certification or permit is conditioned pursuant to section 80103(c) or section 80202(c), respectively, may appeal the denial or placement of a condition to the Secretary. The Secretary shall affirm or reverse the denial or placement of a condition after providing the applicant notice and an opportunity to be heard. The Secretary shall dispose of the appeal not later than 60 days after the appeal is submitted. If the Secretary denies the appeal, the applicant may seek review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business.”

Is it the intent of Congress to create a fundamental right for private space activities for US nationals or is the implication merely words of political edict?

This provision provides a means for an applicant to seek redress from an unfavorable determination from the Secretary of Commerce in the United States Courts of Appeals. An applicant who is denied a permit by the Secretary might file suit challenging the decision, but the approach of the first petitioner will be telling as to whether a fundamental right is pled, to which the Secretary has not offered a compelling state interest to deny the right, or whether a taking of a private interest under the Fifth Amendment is asserted. Presuming the final law is ambiguous and does not specify the nature of a private space activity, in the instance of the first scenario, the court will examine the language of the commercial space law in question and determine whether it implicates a fundamental right or a private interest. The outcome of that analysis and the court of appeal’s decision could lead to a petition for writ of certiorari to the United States Supreme Court where the matter will be ultimately resolved.8

This puts the onus on the Senate to either clarify or dispel the intent of HR 2809 as creating a “right” in private space activities and to take pause before writing language that plays on hyperbole and underrates not just international legal commitments but the US Constitution itself. Indeed, accords like the Outer Space Treaty were built to address events of the time and its role will be lessened as national laws and custom expand on the jurisprudence of space law. Conversely, the US Constitution was intended to stand the test of time and should not be devalued by seeing penumbras of rights in private space activities where they do not exist.

Endnotes

  1. Listner, Michael, “International space law and commercial activities: the rules do apply”, The Space Review, June 3, 2013 at Footnote 1.
  2. See generally, Dixon v. Love, 431 U.S. 105 (1977).
  3. See Listner, Michael, “International space law and commercial activities: the rules do apply”, The Space Review, June 3, 2013 at Footnote 1.
  4. From the perspective of federal case law, there is a three-prong test to determine what constitutional due process is applicable to a private interest. “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest." Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
  5. For the government to prove by clear and convincing evidence an application for a proposed private space activity it must prove it is substantially more likely than not the proposed space activity would violate an international legal obligation.
  6. This principle is found in Article 31 of the Vienna Convention on the law of treaties. The United States signed the Vienna Convention on April 24, 1970 but the U.S. Senate has not given its advice and consent. Still, the United States considers many of the principles with the Convention to be customary international law, which means this principle given its preeminence in Article 31 is likely followed as custom by the United States. See Office of the Legal Advisor, Department of State, “Vienna Convention on the Law of Treaties”.
  7. The private interest in non-governmental space flight is created via the National Space Policy and supporting legislation that facilitates the current regulatory scheme under Title 51, Chapter 509 and 14 C.F.R. ch. III, parts 415, 420, 431 and 435. The National Space Policy of 1982 created the original policy authorization for a private interest in private space activities; the Commercial Space Launch Act of 1984 created the statutory authority.
  8. “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 158 (1803).

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