Having examined a copy of the proposed American Space Commerce Free Enterprise Act of 2017 several things jumped out at me as potentially concerning that would need to be discussed in greater depth. That being the case, this post isn’t an in-depth analysis of the proposed Act but rather a few thoughts about what I see as one of the more disconcerting aspects of the proposal. Specifically, the Act’s effect of transposing the nature of commercial space activities from a private interest to a “right” of U.S. citizens.
A “private interest” is in effect a privilege granted by an executive authority. A private interest is sometimes granted ancillary to a “right” with the caveat the private interest is subject to oversight of the authority granting it. For example, there is a fundamental right to free movement and ancillary to that right the individual states through their 10th Amendment rights and their executive agents grant the private interest of operating motor vehicles on state roads and highways. However, if you break the traffic laws, and/or get a certain number of points on your license, a state can revoke the privilege of operating a motor vehicle. A private interest cannot be deprived without due process, and the same is true for the private interest of performing commercial space activities. The Department of Transportation through the authority granted to the United States can deny, revoke or suspend a launch or reentry license, but it must provide the licensee due process to contest that decision, which it does under 51 U.S.C. § 50912.
The American Space Commerce Free Enterprise Act seeks to redefine the legal nature of commercial space activities in the interest of promoting commercial enterprise; however, in doing so it ignores the caveat of national space policy with regards to commercial space activities: that private activities be consistent with the treaty obligations of the United States, which in this case is Article VI of the Outer Space Treaty. Article VI with regards to non-governmental requires the following:
“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.”
The operative legal term in Article VI is “shall”, which creates a legal duty when used in a legal document like a treaty. Specifically, the term “shall” in Article VI creates a mandatory legal duty for the State to authorize and continually supervise private space activities. This does not mean the United States is compelled to authorize a private space activity but permits a State to create a private interest to allow non-government entities to perform space activities.
It is this legal mandate to “authorize” and “supervise” that precludes the idea private space flight is a “right”. Conversely, Article VI also has the effect to grant a State who is party to the Outer Space Treaty the right to permit its private citizens to perform outer space activities subject to the State’s authority under international law. In other words, under international law the State has the right to grant a private interest in non-governmental outer space activities. Non-governmental entities can seek a private interest with a right to due process through the State to perform outer space activities, but they do not have the right, Constitutional or otherwise, to perform outer space activities.
This is where the American Space Commerce Free Enterprise Act performs legal alchemy by turning a privilege into a “right” or entitlement. To analogize, the Act is saying in essence you’re entitled to a pilot’s license as a matter of right, and it’s the burden of the government to show you are not. Furthermore, the tenor of the Act is akin to saying unless the government can prove you’re not entitled to a pilot license within a specified time-frame, you will get it automatically. Fundamentally, by turning outer space activities into a right, the Act side-steps national space policy with regards to international legal obligations and also ignores customary practice of the United States with regards to Article VI for the past thirty or so years.
All this isn’t to say the American Space Commerce Free Enterprise Act doesn’t have some good provisions to it because it does. However, the Act’s attempt to fashion a right out of what is a privilege is a fundamental flaw that weakens the core of the Act as a whole.