The Trump administration recently released its National Space Strategy. One key aspect of the plan addresses commercial regulation. The strategy “prioritizes regulatory reforms that will unshackle American industry and ensure we remain the leading global provider of space services and technology.” This spurs hope that we can expect a light-handed approach to government regulation of private companies in space. The administration’s commitment is especially important given that confusion stemming from a provision of an existing international space treaty is currently holding back the next wave of exploration.
The Outer Space Treaty went into effect in 1967 and has been signed by the United States, the former USSR, the United Kingdom, and a host of other spacefaring countries such as Canada, France, India, and Japan. The treaty provides a basic framework for international space law. For the most part, it addresses government activity, prohibiting weapons of mass destruction in space, barring claims of sovereignty, and stating that outer space shall be used for peaceful purposes.
As for non-governmental entities, Article VI of the treaty states that their activities in space “shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”
The commercial space sector is seeing a renaissance of new activity. Asteroid mining companies such as Deep Space Industries and Planetary Resources are forging ahead with ambitious plans. Entrants in the Lunar XPRIZE continue their efforts to create lunar rovers — even with the prize officially ended. Bigelow Aerospace co-located one of its expandable habitats with the International Space Station. They all face many obstacles, whether technical, legal, or financial. A misinterpretation of Article VI is one such obstacle — but it is a completely unnecessary one.
Many in both government and industry believe that Article VI prevents private U.S. companies from operating in outer space without explicit authorization or supervision. On this basis — and not on the basis of sound policy reasoning — some seek to burden industry with a new regulatory regime. The Obama administration interpreted Article VI to require the government’s authorization of any and all non-governmental activities in outer space. And the Federal Aviation Administration (FAA) indicated in 2016 that it may deny a private entity access to space because of Article VI. But these interpretations, which claim the government may deny private operators access to space just because they are unregulated, are flawed.
Article VI does not say that either all or any particular activity must be authorized. Instead, it leaves decisions regarding what activities require regulation to the member states. Most significantly, the FAA’s position ignores Supreme Court law regarding non-self-executing treaties. Article VI is not “self-executing” under U.S law: It does not create an obligation or a prohibition on the private sector unless and until Congress passes a law requiring the regulation of a particular space activity. This has been the law from the earliest days of the republic to the present. In the case of Medellin v. Texas, the Supreme Court held that not even the president, with his constitutionally granted foreign policy authority, could execute a non-self-executing treaty provision, and thus the treaty in question did not “automatically constitute binding federal law.”
In short, regulatory agencies simply do not have the authority, without Congressional legislation, to use Article VI to deny a non-governmental entity access to space. Congress could make it clear that it will only legislate where sound policy reasons call for it, rather than allowing a 50-year-old treaty to prevent private actors from accessing space.
Such an approach would allow Congress to take into account the differences between private enterprise in space and on earth. Consider robotic space mining. On Earth, mining may pose hazards to workers, the environment, and neighbors downstream. But why regulate the unmanned, robotic mining of asteroids that no one lives on and no one will ever visit? Space is expensive enough without the needless costs of regulation that doesn’t protect anyone.
If we truly want to unshackle American industry in space, then we must repudiate unnecessary regulatory efforts that will only hobble it. Fortunately, no matter how Congress decides to act, the administration has shown signs that it will interpret and apply existing treaties with more precision and a greater understanding of U.S. law than previously shown.
Laura Montgomery is the author of a new Mercatus Center study “U.S. Regulators May Not Prevent Private Space Activity on the Basis of Article VI of the Outer Space Treaty.” She is the proprietor of Ground Based Space Matters, an adjunct professor of space law at Catholic University’s Columbus School of Law, and a former manager of the Space Law Branch in the FAA’s Office of the Chief Counsel.
