U.S. Capitol Building. Credit: Wikicommons

No issue in space law over the past two years has generated more domestic controversy than Article VI of the Outer Space Treaty and, specifically, its effect on private space activities. Indeed, opinions about whether the Outer Space Treaty and Article VI itself are germane to private space activities have caused contention and created more confusion about what Article VI actually does. The House of Representatives appears to have relied on these dubious views in H.R. 2809, the American Space Commerce Free Enterprise Act. Now the ball is in the Senate’s court and, with it, the opportunity to address the Article VI confusion. With this in mind, the Senate might consider the following when drafting its commercial space bill:

1. Include language that makes it clear the law would enact U.S. obligations under the Outer Space Treaty, including Article VI.

The root of the contention that the Outer Space Treaty and, in particular, Article VI does not apply rests in the lack of enacting language in current U.S. legislation. Title 51, Chapter 509 does not expressly state it is intended to enact legal obligations under international law, including the Outer Space Treaty and its progeny. Even though most legal professionals recognize the effect of Title 51, Chapter 509 authorizes those very legal obligations, including those under Article VI, the lack of specific sanctioning language has given support to those who assert the Outer Space Treaty and Article VI have no legal effect and delegates that authority to the states per the Tenth Amendment of the Constitution. Incorporating specific language in a commercial space bill whose effect will be to enact international legal obligations will shut down that assertion, alleviate the confusion over executing and non-executing treaties, relieve the uncertainty the debate has created for industry and lawmakers and allow the legal and policy community to move on from the non-issue of whether the Outer Space Treaty has been properly enacted.

2. Walk back the language in H.R. 2809 that purports to create a fundamental right in commercial spaceflight.

Perhaps one of the most damaging aspects of the impasse of whether the obligations in the Outer Space Treaty are properly enacted lies in H.R. 2809, which appears at its core to presume private space activities are a fundamental right. That bill takes the stance that the role of government is not to authorize non-governmental space activities but rather only deny an assumed pre-existing right in exigent circumstances. This ignores Article VI, which creates a right in the state, not in the individual, to allow non-governmental entities to perform outer space activities through the granting of a private interest and a duty to oversee those activities.

The risk of H.R. 2809’s view becoming law lies in how the U.S. Constitution treats ratified treaties. Article VI of the Constitution grants ratified treaties the legal status of federal statute subordinate only to the Constitution itself. The Outer Space Treaty’s status as federal law notionally makes it susceptible to successive federal legislation passed and enacted as law. What does this mean for Article VI of the Outer Space Treaty? If a bill like H.R. 2809 becomes law with its presupposition that space activities are a right of non-governmental entities and not a privilege granted through a private interest, it could effectively supersede and amend U.S. rights and duties or at least the perception of what they are under Article VI of the treaty. This would not play well in the international community and also create more uncertainty in the private space industry, which would discourage investment.

The Senate is in the position to at least walk back the language in H.R. 2809 and, at most, affirm that the Outer Space Treaty delegates the right and duty to the federal government to allow private space activities as a private interest subject to the authorization and supervision of the U.S. government through its designated agencies, as opposed to a shadow right in the Bill of Rights or a right delegated to the states under the Tenth Amendment.

3. Direct the appropriate agencies to evaluate Article VI and define U.S. obligations, i.e. what does it mean to “authorize and supervise” the activities of a non-governmental entity.

Certainly, it is cumbersome to execute a law if it is not understood, and that appears to be the case with Article VI. There seems to be no unified agreement as to what Article VI means, which accordingly makes it difficult to employ. In other words, without an underlying consistent understanding of what Article VI requires, it is unwieldly for lawmakers to create legislation to authorize non-governmental activities. This becomes even more burdensome for lawmakers when wrestling with the concept of “continuing supervision” also required in Article VI.

The Senate could use this opportunity to direct agencies to coordinate a central understanding of what Article VI requires from the language itself and develop one policy as how it is to be interpreted and applied. This would provide lawmakers the foundation to legislate changes in authorization that won’t jump haphazardly from ideology to ideology and remain consistent. This will also provide certainty for those creating the regulations, assurance for industry the framework will remain stable with tweaks being made as needed, and confidence for other nations who follow the U.S. model for their own domestic laws. Furthermore, a concise understanding of Article VI and a policy for its interpretation and application will provide the foundation for lawmakers to broach the issue of continuing supervision.

During the hearings before the Senate Foreign Relations Committee for the Senate’s advice and consent for the Outer Space Treaty in 1967, Ambassador Arthur Goldberg was asked about Article VI and whether he thought private space activities would happen, to which he responded it was possible. His reply, in hindsight, is an understatement as we see private space activities blooming. To that end, while Article VI grants states the right to permit these activities, it also provides states the flexibility on how to implement its authorization and oversight. However, that flexibility should take into consideration the fidelity not only of international law but also of the foundation of our form of government and law itself. If we can’t be true to ourselves when applying Article VI, it will be difficult to lead the way in other areas of international space law and policy.

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 author and editor of the subscription space law and policy briefing-letter, The Précis.