The Outer Space Treaty and The Free Enterprise Act: Is international space law a help or a hindrance?

by

On May 23, the space subcommittee of the Senate Commerce Committee will hold a hearing on how the Outer Space Treaty (OST) will impact the future of American commerce in space. This hearing follows the release of a draft House bill that addresses the regulation of private space activity titled the American Space Commerce Free Enterprise Act (FEA) of 2017. These two events go hand in hand because Section 10 of the FEA requires the White House to issue a report within 180 days of enactment explaining:

  1. How the OST and other space treaties “impede… private sector investment.”
  2. The benefits and drawbacks of withdrawal from the treaties.
  3. Whether the U.S. should propose amendments to the OST.

Conspicuously absent is the following question: how does the OST benefit private investment? If Congress asks the White House to focus primarily on how the OST impedes private investment, the content of the report will be predetermined to focus on the flaws in the treaties without enumerating their many benefits. Such a report could set the stage for withdrawing from the treaties, which would be catastrophic for the future of private sector investment (and I am normally not a catastrophizer).

Could the OST be improved by amendment? Certainly. Much has been written about certain aspects of the treaties that no longer fit the modern realities of space commerce, such as not providing for the transfer of space object registrations, but the benefits of the OST far outweigh its flaws. After all, the U.S. was a primary drafter of the OST and the U.S. delegation was committed to providing for the encouragement and protection of private industry, despite the fact that the treaty was drafted when the current state of space commerce was a distant dream. It is because of the OST that U.S. companies can operate freely in a safe and orderly environment. This is the result of provisions in the treaty that preserve peace in space, recognize the legality of private activity in space, ensure the “free use” of outer space by countries and their nationals, prevent other countries from appropriating celestial bodies and require that nationals of other countries operate in “due regard” to the activities of U.S. companies.

Perhaps most importantly, in the current age of expanding private activity in space, Article VI of the OST preserves law and order in space by requiring countries to take steps to ensure that their nationals act in accordance with international law. Now that private operators outnumber government operators, Article VI has become critical to prevent a chaotic environment in space. U.S. companies do not want to operate in the Wild West. The criticism that Article VI requires burdensome regulation is a phantom. All that is needed to comply with Article VI is a process for the government to “authorize and continually supervise” private actors to ensure that they are not engaging in activity that violates international law (e.g. placing nuclear weapons in orbit or operating without “due regard” for the space activities of others.) The current procedures for launch and reentry licenses serve as a ready model.

Despite the many benefits of the space treaties, the tone of the Free Enterprise Act adopts a rather defensive tone toward international law that gives the impression that the treaty obligations are an enemy to private industry. For example, Section 80103(c) lists those international obligations to be considered when determining if a proposed mission complies with international law. However, it is an abbreviated list that omits some important obligations, among the most notable being the obligation to operate “with due regard” to the operations of others. Some might argue that only certain provisions of the treaties apply to private entities. Although there is something to this argument, it is a dangerous slippery slope. The legal reality is that if any private activity runs afoul of any obligations, these violations will be imputed to the country of nationality.

Also potentially problematic is the “presumption” (in the same section of the bill) that any certifications made by an operator regarding compliance with international law shall be deemed sufficient to satisfy those international obligations. This may set a harmful precedent regarding the level of government oversight required under Article VI. Are we comfortable with Russia and China making similar presumptions? The bill also allows for the presumption that as long as private entities observe “best practices… using reasonable commercial efforts,” their activity will be deemed to fulfill or international obligations. As an industry advisor, I see the reason and benefit of this provision – but the use of best practices to interpret treaty obligations may not sit well with the international community since it is not a recognized method of interpretation under the Vienna Convention on the Law of Treaties.

We are all well aware of U.S. political realities. But we must also remember that we face certain international political realities. Space is a global commons that relies on international law in order to maintain its sustainability. The example set by U.S. legislation will shape the laws of other countries who have already begun to follow our lead in the regulation of private space activity. We must take care to maintain a clear tone of respect for international law in our statutes. If the U.S. is perceived (rightly or wrongly) as cherry-picking international obligations and interpreting away obligations by deferring to best industry practices, we should not be surprised if other countries once again follow our lead.

This editorial should not be taken as an indictment of the Free Enterprise Act. The draft bill includes many fine features and I believe the legislative process should go forward. However, during this process I urge Congress to consider how best to send the message to our international partners that the U.S. respects and values the benefits of international law.

 

Mark J. Sundahl is the Charles R. Emrick Jr.-Calfee, Halter & Griswold Professor of Law at Cleveland State University.