Regulatory effects of the International Code of Conduct on commercial spaceby Michael Listner
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| Even though the Code is not intended to be legally binding on states in the international arena, it can have a binding effect on a nation’s domestic law. |
TCBMs promote transparency and assurance between states, but they do not have the legal force of treaties, and states entering into them are bound only by a code of honor to abide by the terms of the instrument. TCBMs are considered a top-down approach to addressing issues; they are not intended to supplant disarmament accords but are intended as a stepping stone to legally enforceable instruments. TCBMs can also address space activities outside of those performed by the military or those performed for national security reasons.1
The non-legal nature of the Code and TCBMs in general allows the Executive Branch to unilaterally address outer space security issues without the involvement of Congress. The current administration in particular relies on the premise that the Code and TCBMs in general are recognized as a type of executive agreement called a “non-legal” agreement, which are political commitments or “gentlemen’s agreements” entered into by the United States with foreign governments, over which the Executive Branch has long claimed the authority to enter into without Congressional authorization.
The Executive Branch’s claim of unilateral authority over these types of agreements is based on the view that these agreements are political and not legal commitments and not subject to the same Constitutional constraints of entering into legally binding international agreements. Non-legal agreements have certain characteristics that identify them as non-binding, one of which is an express stipulation that the measure is intended to be non-legal in nature.2 In the case of the Code, Section 1.4 states explicitly that “Subscription to this Code is open to all States on a voluntary basis. This Code is not legally binding,” which is sufficient to establish that the Code is a non-legal, political agreement and gives the Executive Branch exclusive authority to negotiate and enter into the Code.
Even though the Code is not intended to be legally binding on states in the international arena, it can have a binding effect on a nation’s domestic law. This concern was articulated by members of the United States Congress relating to the now-defunct EU Code of Conduct and the present Code in a letter to President Obama dated January 18, 2012. The letter, which was signed by Congressmen Michael Turner and Joe Heck and Senators John Kyl and Jeff Sessions, extended support for the administration’s decision not to sign on to the EU Code but at the same time expressed concern about then Secretary of State Hillary Clinton’s announcement that the United States intended to negotiate the current Code.3
The letter expressed Congressional concern that international policy derived from signing onto a non-binding code would require the Department of Defense and the intelligence community to implement regulations that would have a legally binding effect domestically and could influence both the national and economic security of the United States. More significantly, the letter warns that while the administration’s legal authority to unilaterally enter into a code is uncertain, the potential implications of regulations created to implement a code could implicate the nascent commercial space market and the jobs it creates. The authors of this letter make a valid point because the Executive Branch could require its agencies to comply with the practices and political promises within an adopted Code and implement regulations to achieve that end.4
Commercial space activities, the Code, and regulation
Commercial space activities are under the jurisdiction of the Department of Transportation and specifically the FAA pursuant to Title 51, Chapter 509 of the United States Code, which is commonly known as the Commercial Space Act. If assurances in the Code require that commercial space activities meet certain standards then the FAA could be required to implement new regulations. However, a provision within Title 51, Chapter 509 may preclude commercial space activities from being affected by federal regulation motivated by assurances made under the Code.
| A provision within federal law may preclude commercial space activities from being affected by federal regulation motivated by assurances made under the Code. |
51 USC. §50919(e)(1) requires that the Secretary of Transportation “carry out this chapter consistent with an obligation the United States Government assumes in a treaty, convention, or agreement in force between the Government and the government of a foreign country” [emphasis added.] The issue then is whether the Code, which is a non-legal, political agreement, would be considered an “agreement” for purposes of this statute. Put another way, if “agreement” as articulated under 51 USC §50919(e)(1) equates to a legally binding agreement similar to a treaty and not a non-legal political agreement like the Code, then commercial space activities under Title 51, Chapter 509 may be immune from federal regulations designed to implement assurances within the Code if it is adopted by the United States.
Absent any contrary legislative intent, the argument in favor that “agreement” means a legally-binding agreement can be found in the January 18, 2012, letter, which suggests that Congress looks upon international measures such as the Code to be legally-binding at some level. Therefore, when promulgating Title 51, Chapter 509, in particular 51 USC §50919(e)(1), Congress may have intended that commercial space activities would be subject only to legally-binding treaties, such as the Outer Space Treaty and its progeny that have been ratified by the United States, and legally-binding executive agreements. If this is the case, then the only way for federal regulation to implement assurances of the Code would be for Congress to amend 51 USC §50919 to include political agreements, which is unlikely given the current Congress’s concern about the Code.5
The issue is further complicated with the current moratorium on regulation of safety of commercial space activities. At present, such regulation is limited and the FAA’s jurisdiction only extends to launch and reentry activities. The current moratorium is scheduled to terminate in October 2015, and it unclear whether Congress will extend the moratorium beyond the current deadline. Title 51, Chapter 509 makes no room to create additional regulations beyond the authority over launches and reentries that the FAA already has, although the FAA seeks to expand Title 51, Chapter 509 to include commercial orbital operations and the resultant expansion of regulatory authority. (See “Balancing safety and cost in commercial human spaceflight”, The Space Review, February 10, 2014.) Therefore, any regulations that might be implemented because of the Code would be limited to launch and reentry activities, presuming that regulation of commercial space activities would not be precluded by 51 USC §50919(e)(1) and the current moratorium is extended beyond 2015.
This leaves the Administration in a dilemma concerning political promises made in the Code if it is adopted. Subscribing states to the Code might insist that commercial space activities are implicated by the Code and that the United States follow through on its political commitments and conform the industry to the precepts of the Code. With the current statutory language of 51 USC §50919(e)(1) potentially precluding the Code from having a regulatory effect on the commercial space industry, the Administration could seek legislation modifying Title 51, Chapter 509, which would allow political agreements like the Code to influence the commercial space industry. However, Congress is not required enact federal statutes to support non-legal political agreements like the Code, and it would not be required to amend Title 51, Chapter 509. Therefore, the very nature of political agreements, which gives the Administration exclusive authority to negotiate and enter into the Code without Congress’ input or consent, might also prevent the Administration from following through on assurances in the Code when it comes to dealing with the commercial space industry, meaning that an enacted Code could be a paper tiger.
| Whether the Code is adopted and becomes a player in outer space security matters turns on more than its potential effect on commercial space activities, and commercial space activities may be less of an issue in the grander scheme of whether or not the Code is adopted. |
The paradox of this line of reasoning is that even if 51 USC §50919(e)(1) and an extended moratorium on regulation insulates the commercial space industry from political agreements like the Code, it does not shield the industry from treaties like the Outer Space Treaty and its progeny. Article VI of the Outer Space Treaty in particular could create a situation where other signatories concerned about commercial space activities would insist that the United States take a more active role in regulating its private citizens engaging in commercial space activities. Because the Outer Space Treaty is a treaty ratified by the United States it would fall within 51 USC §50919(e)(1) (see “International space law and commercial space activities: the rules do apply”, The Space Review, June 3, 2013). To the extent that Title 51, Chapter 509 would not conform to the requirements under the Outer Space Treaty, Congress would be required to expand Title 51, Chapter 509 and grant the FAA the authority to further regulate the industry to meet US obligations under the international law. The crux is that unlike the Code where regulation of the commercial space industry is speculative, regulation to meet the international legal requirements within the Outer Space Treaty and other legally binding agreements is a certainty that will come to pass at some point.
Conclusion
Whether the Code is adopted and becomes a player in outer space security matters turns on more than its potential effect on commercial space activities, and commercial space activities may be less of an issue in the grander scheme of whether or not the Code is adopted. Still, it is prudent to recognize that an adopted Code could have unforeseen consequences beyond the benefits it espouses. Whether the Code has an effect on commercial space activities will be telling for other TCBMs that may or may not come into play in the future, and while it is uncertain whether the Code and TCBMs will play a significant role in outer space activities, it is certain that international sentiment channeled through other international legal mechanisms will play a role.
Endnotes
1 See generally, Andrey Makarov, Transparency and Confidence-Building Measures: Their Place and Role in Space Security, Security in Space: The Next Generation-Conference Report, 31, March-1 April 2008, United Nations Institute for Disarmament Research (UNIDIR), 2008 for a discussion about TCBMs and their role in outer space security.
2 There are three types of legal Executive Agreements: Congressional executive agreements, executive agreements made pursuant to an earlier treaty and sole executive agreements. Unlike a non-legal agreement, each of these agreements are legally binding at the international level. See Michael John Garcia, International Law and Agreements: Their Effect Upon U.S. Law, March 1, 2013, pp. 3-5, available at http://www.fas.org/sgp/crs/misc/RL32528.pdf
3 Michael J. Listner, “Congressional opposition to a Code of Conduct for space”, The Space Review, February 6, 2012.
4 Federal regulations are detailed rules created by executive agencies that outline how federal statutes legislated by Congress are implemented. Regulations created to meet the assurances of the Code would be applied to current statutes and not a statute created in response to the Code.
5 Congress took preemptive steps to address the potential regulatory effect on the national security of the United States by adoption a measure such as the Code when it passed HR 4310, the National Defense Authorization Act for Fiscal Year 2013, in late 2012. HR 4310 requires the President and the Secretary of Defense to give assurances and notifications prior to negotiating a measure synonymous to the Code as well as other conditions. See generally, Michael J. Listner, “Separation of powers battle continues over the Code of Conduct”, The Space Review, January 7, 2013.