International space law and commercial space activities: the rules do applyby Michael J. Listner
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| A theme prevalent among commercial space advocates is that the Outer Space Treaty and the existing body of international space law is intended only for the United States government and does not extend to private individuals, including commercial space actors. |
A significant legal backdrop exists in the United States to facilitate commercial space activities such as the Commercial Space Launch Act of 1984. However, many advocates of commercial space activities do not understand that the current body of international space law is relevant to commercial space activities and has the power to both facilitate commercial space activities and the potential to impede them as well. This essay will attempt to explain the relationship of international space law to federal law and commercial space and illustrate how even non-binding measures can affect commercial space activities.
A theme prevalent among commercial space advocates is that the Outer Space Treaty and the existing body of international space law is intended only for the United States government and does not extend to private individuals, including commercial space actors. In line with this assertion, some commercial space advocates also contend that commercial space activities are not a power delegated to the federal government and is therefore a right conferred to private citizens under the Constitution, which means that the United States government cannot prohibit or otherwise interfere with commercial space activities. These two misconceptions are best dealt with simultaneously by tying together federal power delegated under the Constitution with the legal effect of treaties on United States law.
First, the misconception that the United States government cannot interfere with commercial space activities is rationalized by citing the 10th Amendment of the Bill of Rights to the United States Constitution, which says, “The 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.”
What the 10th Amendment says is that if a particular power is not specifically delegated to the federal government by the Constitution, then that power is reserved to be exercised by the states or the people. This is inferred by some commercial space advocates to mean that private legal entities like individuals or corporations, which are involved in commercial space activities, have a right under the 10th Amendment to perform commercial space activities without interference from the federal government because commercial space activities are not a delegated power to the federal government under the Constitution.
Building on this misconception is the assertion that international space law, including the Outer Space Treaty, applies only to the United States government and not to private individuals. The reasoning is rooted in a misunderstanding of the legal effect of a ratified treaty. Article VI of the United States Constitution says in part that:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; [emphasis added] and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Fundamentally, this means when the United States ratifies an international treaty like the Outer Space Treaty and its progeny, the provisions of those treaties have the same legal effect as a federal statute passed by Congress and signed into law by the President. Therefore, not only is the federal government legally committed to abide by the terms of a treaty like the Outer Space treaty, so are the private citizens under the United States’ domestic jurisdiction. Moreover, the Outer Space Treaty’s standing as the supreme law of the land delegates to the federal government of the United States the power over commercial space activities that some advocates claim is reserved to private individuals by the 10th Amendment.
Consider Article VI of the Outer Space Treaty, which states that:
“ 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. [emphasis added] When activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.”
For all intents and purposes, Article VI of the Outer Space Treaty means in part that, as a State Party to the Outer Space Treaty, the United States government has continuing jurisdiction over its private citizens performing space activities, is responsible for authorizing space activities carried out by them, and has the obligation to continually supervise their activities to ensure that they are carried out in conformity with the Outer Space Treaty and international law in general. Accordingly, the Outer Space Treaty’s status as a treaty ratified by the United States makes it the supreme law of the land pursuant to Article VI of the United States Constitution. That, in turn, delegates the authority and obligations within the Outer Space Treaty to the federal government of the United States.
| The Outer Space Treaty’s status as a treaty ratified by the United States makes it the supreme law of the land pursuant to Article VI of the United States Constitution. |
The result of this is that, instead of a private right delegated to private individuals under the 10th Amendment, commercial space activities become a private interest granted to non-governmental, private individuals subject to the federal government’s power delegated to it via Article VI of the Outer Space Treaty.1 Consistent with the authority and obligations delegated to the United States by the Outer Space Treaty, Congress passed a series of federal statutes dealing specifically with commercial launch activities.2 Under Title 51, Chapter 509 of the United States Code, titled “Commercial Space Launch Activities”, which is known more commonly as the Commercial Space Launch Act of 1984 and codified as 51 U.S.C §§ 50901- 50923, the federal government, through its agent, the Department of Transportation, exercises the authority to permit and oversee commercial space activities. 3
The Department of Transportation’s authority to oversee commercial space activities under Chapter 509 surrounds the launch and reentry of commercial space missions and includes:
Of course, Chapter 509 is not entirely punitive and has numerous benefits and due process mechanisms for launch licensees; however, Chapter 509’s practical effect is that it confers a private interest to perform commercial space activities and gives the federal government the means to fulfill its obligations under the Outer Space Treaty and its progeny. The Department of Transportation fulfills these obligations through its authority to permit, suspend, or prohibit any present or future commercial space activity, including suborbital, orbital, space debris removal, extraterrestrial resource/mineral extraction, and colonization activities.
The proposed Code of Conduct for Outer Space Activities is another example of how an international accord could influence commercial space activities. The European Council introduced the Code of Conduct in 2008. Among the concepts espoused by the Code of Conduct are those that call for nations to avoid actions that could damage or destroy other satellites or interfere with their communications, and to minimize the risk of collisions, as well as limit the creation of orbital debris. (See “Debating a code of conduct for outer space”, The Space Review, March 7, 2011). The initial Code of Conduct effort was unsuccessful, but the European Council reintroduced the proposal in 2012. It is currently the focus of multilateral negotiations at the United Nations.
Unlike the Outer Space Treaty and its children, the Code of Conduct is not intended to be a legally binding treaty. This attribute permits the Executive Branch to unilaterally negotiate the measure without Congressional involvement, nor does it require ratification by the Senate. Moreover, because the Code of Conduct is not intended to be legally binding it will not have the legal standing as a ratified treaty on the United States legal system. However, even though the Code of Conduct and other transparency and confidence-building measures (TCBMs) would not be legally binding on the United States in the international arena, to implement the assurances contained within the Code of Conduct would require that those assurances become legally binding upon the citizens of the United States. The Executive Branch would accomplish this by introducing the necessary regulation through its agents, including the Department of Transportation.
Ranking members of both the House of Representatives and the Senate raised this issue in a letter sent to President Obama on January 18, 2012, where they expressed their concern that the potential implications of domestic regulations created to implement the Code of Conduct may implicate and impede the commercial sector, especially in terms of the growing the commercial space market and the jobs that are created from it. (See “Congressional opposition to a code of conduct for space”, The Space Review, February 6, 2012.) Specifically, the Department of Transportation could be directed to use its authority under 51 U.S.C. § 50922 to implement regulations to bring the commercial space sector into concurrence with the assurances made by the Executive Branch through a signed Code of Conduct.
| Aspiring commercial actors must recognize that foreign policy concerns, as well as obligations to the international community as a whole, ensure that commercial space activities will not operate in a legal and regulatory vacuum. |
The prerogative of the Executive Branch to enter into measures like the Code of Conduct has precedent and falls within its enumerated powers, so it will not be ruled unconstitutional by a federal court. Therefore, if the future of international space law and security moves toward the use of non-binding measures like the Code of Conduct, commercial space actors can expect to be subject to domestic regulation created to meet assurances within those measures. This, in addition to laws and regulation created to meet legal obligations under the international space law treaties through Article VI of the Constitution, will ensure that international concerns about non-governmental entities performing space activities will trickle down through federal agencies like the Department of Transportation and influence future commercial space activities.
Another international concern that may implicate commercial space activities in the future is the growing congestion in Earth orbit, particularly certain, commonly-used ones. Implementing international space traffic management has been discussed for the past few years as a means to address the present and future orbital congestion from increased human and robotic space activities and space debris. Suggestions for space traffic management include increased sharing of space situational awareness data, combined multinational space situational assets, and even an international legal regime to create and enforce “rules of the road” for outer space actors.
It is unlikely that space traffic management will be facilitated through legally binding treaties, but the potential exists that measures similar to the Code of Conduct could be employed with the resultant regulatory implications for commercial space actors. Either way, the effect on commercial space activities is the potential for increased regulation. Even if an international regime for space traffic management fails to materialize, the possibility exists that Congress could unilaterally extend Chapter 509 to facilitate space traffic management on its own. This would mean additional oversight by the Department of Transportation beyond launch and reentry of commercial spacecraft to include commercial operations in outer space as well. Regardless of whether space traffic management manifests at the international or domestic level, or at all, commercial space actors and advocates should be aware that their activities could be affected.
Commercial space holds great promise for the utilization and expansion of human and robotic outer space activities, but aspiring commercial actors must recognize that foreign policy concerns, as well as obligations to the international community as a whole, ensure that commercial space activities will not operate in a legal and regulatory vacuum. As commercial space matures, the law and accompanying regulation will most certainly evolve, but that does not mean that it will be excessive or over-burdensome.
Commercial space actors have two choices: they can acknowledge that international law will influence their activities as the industry matures and choose to become participants in the inevitable evolution of law and regulation.12 The alternative is for commercial space actors to treat the present and future legal realities as a leash and pull against it. Either way, ignoring the influence of international law and the federal government over the commercial space industry will do nothing to benefit the industry in the long haul.
1 A “private interest” is in effect a privilege granted by an executive authority. A private interest is sometimes granted ancillary to a “right” with the caveat that the private interest is subject to oversight of the authority granting it. For example, there is a fundamental right to free movement and ancillary to that right States through their executive agents grant the private interest of operating motor vehicles on state roads and highways. A private interest cannot be deprived without due process, and the same is true for the private interest of performing commercial space activities. The Department of Transportation can deny, revoke or suspend a launch or reentry license, but it must provide the licensee due process to contest that decision, which it does under 51 U.S.C. § 50912.
2 51 U.S.C. § 50901(a)(1) states that “Congress finds that the peaceful uses of outer space continue to be of great value and to offer benefits to all mankind...” This is consistent with Article I of the Outer Space Treaty.
3 The branch of the Department of Transportation that is responsible for implementing Chapter 509 is the Federal Aviation Administration (FAA). The current regulations to carry out Chapter 509 can be found at 14 C.F.R. Chapter III, Parts 415, 420, 431 and 435.
4 51 U.S.C § 50904 Restrictions on launches, operations, and reentries
5 51 U.S.C. § 50907 Monitoring activities
6 51 U.S.C. § 50908 Effective periods, and modifications, suspensions, and revocations, of licenses.
7 51 U.S.C. § 50910 Preemption of scheduled launches or reentries
8 51 U.S.C. § 50909 Prohibition, suspension, and end of launches, operation of launch sites and reentry sites, and reentries
9 51 U.S.C. § 50914 Liability insurance and financial responsibility
10 51 U.S.C. § 50919 Relationship to other executive agencies, laws, and international obligations
11 51 U.S.C. § 50922 Regulations
12 This author, along with Tommaso Sgobba and Chris Kunstadter, suggested that commercial space actors could take a proactive tack and propose self-regulation of the industry in lieu of government sponsored regulation created by the FAA. See “Taking a page from maritime practice to self-regulate the commercial space industry”, The Space Review, March 4, 2013.
