Bigelow spae station
Illustration of a commercial space station featuring two B330 modules. Credit: Bigelow Aerospace

A disturbing trend has been taking shape over the past year relating to the Outer Space Treaty and, specifically, whether Article VI applies to private citizens with respect to private space activities. The line of reasoning private space activities are a “right” not affected by international law has been championed by members of Congress and supported by some in the space law community. This point of view represents a flawed understanding of international law and how the Outer Space Treaty, including Article VI, facilitates private space activities. The following summation will attempt to clarify the legal nature of private space activities and their relationship to international law.

1. Outer space activities by non-governmental entities is not a right, fundamental or otherwise.

Non-governmental space activities (activities performed by private citizens) is not a right, but it is a private interest. 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 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, the individual states through their 10th Amendment rights and their executive agents grant the private interest of operating motor vehicles on state roads and highways. However, if you break the traffic laws, and/or get a certain number of points on your license, a state can revoke the privilege of operating a motor vehicle. A private interest cannot be deprived without due process, and the same is true for the private interest of performing private space activities.

2. Article VI creates a right in the State to allow non-governmental entities to perform space activities subject to authorization and continuing supervision.

Article VI of the Outer Space Treaty reads in part:

“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.”

Article VI gives or otherwise permits a State to allow private space activities subject to their discretion, and obligates the State to authorize and supervise those activities not through a fundamental right but through a private interest subject to government supervision. 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 for the State to authorize and continually supervise private space activities.

This does not mean a State like the United States is compelled to authorize a private space activity but rather permits a State to allow non-government entities to perform space activities. Article VI does not create the authorization as a matter of right to non-governmental entities nor does it prohibit private/commercial 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 entities to perform space activities.

3. The duty to “authorize” and “supervise” is a power delegated to the federal government by the Constitution.

The rights and duties created in Article VI are imputed to the federal government of the United States via Article VI of the United State Constitution:

“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.”

As the United States ratified the Outer Space Treaty, the provisions of that treaty, including Article VI, have the same legal effect as a federal statute passed by Congress. The legal duties within the Outer Space Treaty are for the State, in this case the United States. The effect of a ratified Outer Space Treaty and Article VI of the United States Constitution creates the duties to “authorize” and “supervise” in Article VI of the Outer Space Treaty, which makes it a power delegated to the federal government by the Constitution. This means the federal government has a right, and a duty subject to that right, to approve non-governmental outer space activities through a licensing process or other means

4. The legal duties to “authorize” and “supervise” the outer space activities of non-governmental entities are duly executed by the National Space Policy and the United States Code.

The federal government is empowered by international law through Article VI and the United States Constitution to “authorize” and “supervise” the activities of nongovernmental entities. The legal duties in Article VI have been duly executed through both the National Space Policy starting with National Security Decision Directive Number 42 (July 4, 1982 National Space Policy) and the Commercial Space Launch Act of 1984 (Public Law 98-575, enacted October 30, 1984). Subsequent national space policies and legislation have amended the original domestic execution of duties in Article VI and can be found in the United States Code via Title 51, Chapter 509, 513 and the Code of Federal Regulations 14 C.F.R. ch. III, parts 415, 420, 431 and 435.

5. The United States has established a customary interpretation of Article VI through its state practice of licensing private space activities.

The reading of Article VI that creates a right and a legal obligation for a State is the current customary interpretation of the Outer Space Treaty with regards to non-governmental entities, which the United States supports through practice via the National Space Policy and the statutory authority of Title 51, Chapter 509, 513 and ancillary regulations. This interpretation has been exercised by the United States for over 30 years and has been accepted by other States through their adoption of domestic laws and regulations for their own private entities. This means the practice adopted by the United States has become a legally binding interpretation of Article VI rights and duties.

Michael J. Listner is an attorney, the founder and principal of the legal and policy think-tank/consultation firm Space Law and Policy Solutions and the editor of the subscription space law and policy briefing-letter, The Précis.