A Little Space Law on the Radio

For anyone interested in issues concerning the regulation of outer space, the link to the episode of The Space Show with me on it is at:   www.thespaceshow.com/show/20-mar-2017/broadcast-2886-laura-montgomery .

The background for the very narrow point I was making comes from Article VI of the Outer Space Treaty.  It says:

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.

A lot of people take this to mean that if you want to build a habitat on the moon or mine asteroids you need to find someone in the government to approve you.  This is wrong for two reasons.  First, the words of Article VI don’t say you can’t go without permission, just that something is supposed to be authorized.  In the U.S., Congress requires authorizations for four space activities:  satellite remote sensing, satellite communications, launch, and reentry.  Until Congress passes a law that says lunar habitats require authorization from the Department of Housing and Urban Development, the lunar construction is not forbidden.

Second, this provision of the treaty is not self-executing.  It is true the Constitution makes treaties the supreme law of the land, but only if they are self-executing. If a treaty promises that the signatories shall go off and do something to carry out whatever the signatories agreed to, it necessarily requires additional action by someone in the government. In the United States, that someone is Congress.  As the Supreme Court noted in Medellin v Texas in 2008, “not all international law obligations automatically constitute binding federal law enforceable in United States courts.”

If you are interested in this topic, I discuss it extensively at my law blog and again in my testimony to the Space Subcommittee in Congress.



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