The 118th Congress closed with three dozen pieces of legislation dying at the end of the second session. Surely, some of those bills will be revived in the 119th Congress, including the Commercial Space Act of 2023, which sought to overhaul the licensing scheme for non-governmental space activities. However, the new administration will have strong support for non-governmental space activities, which means the 119th Congress could pass bold legislation to encourage those activities. There are six issues the 119th Congress can specifically address in legislation to create a more conducive environment to encourage non-governmental space activities.
- Identify what Article VI authorization and continuing supervision means and will look like.
Article VI of the Outer Space Treaty (OST) grants states the right to permit non-governmentals to perform space activities subject to authorization and continuing supervision. This right is is necessarily vague and left to the sovereign authority of states to define and implement. Since President Reagan shifted policy to take advantage of this provision and support non-governmental space activities, there has been no clear policy as to what authorization and continuing supervision entails. Rectifying this both through executive orders and legislation will create certainty, allow clarity to create a robust authorization scheme, and enhance state practice for Article VI.Â
- Create the designation of non-governmental astronauts and recognize their rights under international law.Â
Non-governmental space activities are maturing to include human beings performing activities previously relegated to government astronauts, and the legal designation of spaceflight participants and crew are insufficient to cover the nature of these activities. The 119th Congress should make it a priority to pass legislation to create a distinct legal designation of non-governmental astronaut for individuals performing these activities and grant them the same privileges and protection under international law. This could be prompted by the Trump administration considering an executive order recognizing the activities of non-governmentals as falling under the protections afforded to astronauts under international law.
- Refine Title 51, Chapter 513 to clarify the rights contained within.
The right to possess and convert space resources has been entrenched in domestic law for almost ten years. Nevertheless, aside from diplomatic activities to further the recognition of this interpretation of the OST and an executive order from President Trump during his first term, there has been substantially no legal development domestically to further flesh out the matter. Even though the right and activity is expressly authorized in Title 51, Chapter 513, which codifies the right to possess space resources in federal law, there has yet to be one license issued by to U.S. non-governmental. Even the FAA is reluctant to admit whether it has authority to authorize space resource activities. The 119th Congress has the opportunity to act and further clarify the rights created in Title 51k Chapter 513, designate an authorizing agency and specific authority to regulate to comply with the decision in Loper Bright, and identify dispute resolution mechanisms to address legal issues arising from these activities.
- Support the creation of classification societies to support certification of crewed non-governmental spacecraft.Â
Classification societies in the maritime setting have established the standards for the design, construction, and maintenance of maritime vessels. They accomplish this through rules and standards formulated through a committee process. Classification societies are non-profit organizations and perform their services on a fee basis and can be elected by a ship owner. Indemnity (P&I) insurers depend on certification by classification societies in determining insurability. Taking the role of classification societies and insurance from the maritime industry and applying the concept to the certification of non-governmental spacecraft will allow the industry to develop common sense standards for spacecraft construction and be an integral part to future regulation. The 119th Congress can facilitate the formation of classification societies with formal recognition and extolling the contributions they can make in ensuring the future safety of the industry.
- Clarify the role of the FCC as an Article VI authorizing agency.
The FCC has been operating as an Article VI authorizing agency for decades using a vague provision of the Communications Act of 1934 to justify not only its licensing power but its authority to regulate orbital debris. The FCC has long relied on Chevron Deference to justify its exercise of authority over Article VI licensing and rules for orbital debris mitigation and essentially assert on-orbit authority over licensees. The U.S. Supreme Court abolished the Chevron Deference in its decision in Loper Bright. This means the FCC’s continued status as an Article VI authorizing agency and its assertion of on-orbit authority, including orbital debris rules, is on its face void as Congress has not specifically authorized the FCC to regulate in this arena. The 119th Congress might consider examining the FCC’s authority and either challenge its presupposed Article VI authority or amend the Communications Act to grant the FCC Article VI authority expressed in specific terms that designate the extent of that authority, including regulating orbital debris.
- Foster the space insurance industry in the U.S.
Space insurance is an important part of not only present non-governmental activities, including satellites and third-party insurance, but will also be indispensable for future activities such as space resource activities and activities and infrastructure in cis-lunar space. Future regulation will certainly include indemnification requirements as well as addressing risks associated with it, which will require a robust space insurance industry. The 119th Congress can act to promote the space insurance industry and make the U.S. a leader and a principal jurisdiction and venue to attract non-governmentals both within and outside the U.S.
Michael J. Listner is an attorney and the founder and principal of Space Law & Policy Solutions. He is a subject matter expert and practitioner in outer space law, policy and security and an authority on hybrid warfare and lawfare strategy. He is also General Counsel (pro tem) and Senior Advisor to the start-up launch company Lesath International.Â
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