US Space Strategy Seen Possibly Pointing to New Outer Space Treaty Approach
The U.S. national space strategy's emphasis on deregulation (see 1803260003) hopefully means the administration won't allow regulatory agencies to deny private actors access to space on the basis of non-self-executing treaty provisions, space lawyer Laura Montgomery blogged Monday. Article VI…
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of the Outer Space Treaty (OST), requiring government authorization and supervision of nongovernmental activities in space, doesn't say those activities must be authorized, she said. She also said Article VI isn't self-executing, meaning it doesn't create an obligation or prohibition on the private sector unless and until Congress says it does. The Obama administration interpreted Article VI to require authorization of all nongovernmental activities in space, and the FAA indicated it could use Article VI as a means to deny a private entity access to space. But that FAA position ignored the Supreme Court's position on non-self-executing treaties, and regulatory agencies shouldn't claim the power to use the article to deny such access to space since it "would only shackle the commercial space industry," Montgomery said. Meanwhile, conforming to OST doesn't mean limits on governments should apply to private entities, since the treaty doesn't say that, she said. For example, Article II's bar on national appropriation doesn't ban private appropriation, she said.