PROPERLY SPEAKING, THE UNITED STATES DOES HAVE AN INTERNATIONAL OBLIGATION TO AUTHORIZE AND SUPERVISE COMMERCIAL SPACE ACTIVITY.

• Author: Goehring, John S.

1. ARTICLE VI--THE REVOLUTIONARY ROAD TO STATE RESPONSIBILITY II. THE NEED FOR A RESPONSE III. THE UNBEARABLE LIGHTNESS OF INTERNATIONAL OBLIGATIONS IV. THE UNEXAMINED CONSEQUENCES OF NON-SELF-EXECUTING TREATY PROVISIONS V. APPLICATION TO COMMERCIAL OPERATORS AND IMPLICATIONS FOR NATIONAL SECURITY VI. CONCLUSION Recently, the United States' international obligation under the 1967 Outer Space Treaty to authorize and supervise its commercial outer space activities has been called into question. In particular, Laura Montgomery testified before the House Committee on Science, Space, and Technology, Subcommittee on Space, in March 2017 on the topic of U.S. international obligations in light of new and innovative outer space activities. Montgomery, who was counsel for the Federal Aviation Administration (FAA) for many years until 2016, recommended in her testimony that Congress not regulate new commercial space activities on the basis of any perceived legal obligation under Article VI of the Outer Space Treaty. (1) Article VI directs, in part, that "the activities of non-governmental entities in outer space ... shall require authorization and continuing supervision by the appropriate State Party to the Treaty." (2) Montgomery's reasons are threefold. First, she asserts Article VI allows the U.S. the unfettered discretion to choose which non-governmental activities it would like to authorize and supervise, thereby actually imposing no international obligation at all. (3) Second, regardless of whether Article VI imposes an international obligation, it has no domestic effect because it is a non-self-executing treaty provision. (4) Third, notwithstanding any legal obligations that the Outer Space Treaty may or may not impose on States, most of those obligations apply only to States and not to private commercial enterprises. (5) In sum, her message is straightforward: were Congress to misunderstand any of these positions, it may feel compelled to regulate space activities unnecessarily, thereby creating needless drag on burgeoning commercial space industries. Article VI, in other words, does not actually require the U.S. to regulate its commercial space activities.

   This article is a rejoinder to that message. Congress should have a true understanding of the U.S.'s international obligations under the Outer Space Treaty before setting a course for regulating near-future commercial space activities--or not regulating them, as the case may be. Once established, the real question for Congress ought to be how the obligations of Article VI can be satisfied for commercial space activities, not whether such obligations even exist. Montgomery attempts to argue the latter. Upon closer examination, however, none of her arguments withstands scrutiny. Congress is not well-served by advice that is not only unsound, but also serves to undermine the U.S.'s long-term national security interest in encouraging responsible behavior in space.

1. ARTICLE VI--THE REVOLUTIONARY ROAD TO STATE RESPONSIBILITY

   The U.S. is among over 100 States Parties of the 1967 Outer Space Treaty, the seminal document of international space law. (6) Article VI of the Treaty states:

   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. (7) Article VI is fundamentally about State responsibility. As expressed by Manfred Lachs, the Chairman of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) during the negotiation of the Outer Space Treaty, "States bear international responsibility for any activity in outer space, irrespective of whether it is carried out by governmental agencies or non-governmental entities." (8) According to Lachs, "[t]his is intended to ensure that any outer space activity, no matter by whom conducted, shall be carried out in accordance with the relevant rules of international law, and to bring the consequences of such activity within its ambit." (9)

   The joinder of State responsibility with commercial space activity is a result of compromise between the U.S. and the Soviet Union. (10) The U.S. wanted activities in space to be open to private entities, while the Soviet Union wanted to restrict them to States only. (11) Article VI constituted a negotiated settlement in which private space activity is permitted but States assume direct responsibility over it. (12) The result "is not merely innovatory ... it is almost revolutionary." (13) Ordinarily, States can be held responsible for the conduct of commercial actors only vicariously. In outer space, however, the innovation of Article VI is that all commercial activities are "deemed to be ... imputable to the State as if it were its own act," and breach of duty is considered "as if it were a breach by the State itself." (14)

   Article VI does more than just establish State responsibility over nongovernmental space activities, however. It goes a step further. "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," it says. Ordinarily, how contracting states to a treaty ensure compliance by those under their authority is left to the States themselves to decide, but that is expressly not the case in the Outer Space Treaty. (15) Rather, Article VI "prescribes specifically the requirement of authorization and continuing supervision." (16) The requirement to authorize and supervise enhances the ability of all States to attribute responsibility. As a consequence of making States responsible for commercial space activities, it becomes necessary to supervise that activity "in order to provide assurance to the other Parties that all space activity is conducted in accordance with the principles of the Outer Space Treaty." (17)

   Thus, not only do States have direct responsibility for their space activities, but they also have the non-discretionary, affirmative obligation under the treaty to authorize and supervise their space activities, whether governmental or non-governmental. (18) States do, however, have discretion in the means they use to satisfy this non-discretionary obligation to authorize and supervise. (19) In other words, Article VI establishes the obligation, but it does not prescribe any method or standards for meeting the obligation. (20) States accomplish this through domestic laws, often through licensing regulatory oversight. The U.S., for example, uses various licensing and regulatory regimes. (21) Pursuant to the Communications Act of 1934, as amended, the Federal Communications Commission (FCC) regulates satellite communications as well as the orbital slots allocated to the U.S. by the International Telecommunications Union (ITU), a UN body that regulates frequencies and orbital slots in geosynchronous orbit. (22) Other agencies regulating U.S. national space activity are the Department of Transportation (DOT), through the FAA/ AST, and the Department of Commerce, through the National Oceanic and Atmospheric Agency (NOAA). (23) NOAA, for instance, regulates the licensing, monitoring, and compliance of private remote-sensing satellites pursuant to the Land Remote Sensing Policy Act of 1992. (24) Domestic regulations such as these can serve various purposes, like encouraging industry development, decreasing risk, and ensuring predictability, yet "[i]t is important to note ... that these are domestic rules, therefore States must be cautious that they still fulfill their obligations under the Outer Space Treaty, specifically Article VI." (25)

2. THE NEED FOR A RESPONSE

   As the foregoing demonstrates, Article VI is commonly understood to require "a certain minimum of licensing and enforced adherence to government-imposed regulations" for commercial entities. (26) This consensus is widespread, which is why the presentation to the U.S. Congress of a contrary position is not only curious, but remarkable. A full response is warranted to set the record straight because Congress is currently assessing whether and how to regulate near-future space activities and should do so with a complete understanding of our international obligations. Additionally, Montgomery's former position with the FAA lends significant credibility to her opinion, and her common-sense position against unnecessary and burdensome regulations on space activities will, rightfully, be well-received, although with the lamentable consequence of obscuring the underlying misunderstandings of the law within her testimony.

   Now is the time to correct any misapprehensions Congress may have of the U.S.'s international obligations under the Outer Space Treaty. In November 2015, President Obama signed into law the U.S. Commercial Space Launch Competitiveness Act which, in part, directed the Office of Science and Technology Policy, in consultation with other agencies such as the Departments of State and Transportation, to prepare a report that would assess current and proposed near-term, commercial non-governmental activities conducted in space, identify appropriate authorization and supervision authorities for those activities, and recommend an authorization and supervision approach that would prioritize safety while minimizing burdens to the commercial sector and, notably, satisfying the U.S.'s obligations under international treaties. (27) The Office of Science and Technology Policy issued its report on April 4...