AwaitingLaunch_1397728623369

44. This is more commonly referred to as the
Commercial Space Act.
45. There is a question as to whether an assurance
made under the Code could require the Secretary of
Transportation to implement regulations under Title
51, Chapter 509 to affect commercial space
activities. 51 U.S.C. §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..." The issue is
whether the Code, which is a non-legal agreement,
would be considered "an agreement" for purposes
of this statute. If "an agreement" equates to a legally
binding executive agreement and not a non-legal
agreement, commercial space activities under Title
51, Chapter 509 may be immune if the Code is
adopted by the United States, unless Congress
amends the law. This would be an unlikely scenario
given the current Congress' concern as articulated
in the January 18, 2012 letter.
46. This definition of customary international law was
articulated by the 11th Circuit Court of Appeals in
United States v. Bellaizac-Hurtado, 700 F.3d 1245,
1252 (11th Cir. 2012). The definition of customary
international law pronounced by the 11th Circuit in
this case is unanimous throughout the Federal
Circuit Court of Appeals.
47. Article IX states that "In the exploration and use of
outer space, including the moon and other celestial
bodies, States Parties to the Treaty shall be guided
by the principle of co-operation and mutual
assistance and shall conduct all their activities in
outer space, including the moon and other celestial
bodies, with due regard to the corresponding
interests of all other States Parties to the Treaty.
States Parties to the Treaty shall pursue studies of
outer space, including the moon and other celestial
bodies, and conduct exploration of them so as to
avoid their harmful contamination and also adverse
changes in the environment of the Earth resulting
from the introduction of extraterrestrial matter and,
where necessary, shall adopt appropriate measures
for this purpose. If a State Party to the Treaty has
reason to believe that an activity or experiment
planned by it or its nationals in outer space,
including the moon and other celestial bodies,
would cause potentially harmful interference with
activities of other States Parties in the peaceful
exploration and use of outer space, including the
moon and other celestial bodies, it shall undertake
appropriate international consultations before
proceeding with any such activity or experiment. A
State Party to the Treaty which has reason to believe
that an activity or experiment planned by another
State Party in outer space, including the moon and
other celestial bodies, would cause potentially
harmful interference with activities in the peaceful
exploration and use of outer space, including the
moon and other celestial bodies, may request
consultation concerning the activity or experiment."
48. Japan invoked Article IX of the Outer Space Treaty
for the first time shortly after China's ASAT test in
2007; however, that one use of Article IX did not
necessarily establish customary practice. Compare
this to the intercept of USA-193 where the United
States consulted with COPUOS before it intercepted
its wayward satellite but did not invoke Article IX
because it determined the nature of the intercept
did not require Article IX to be raised. Whether the
United States inadvertently created a customary
practice regarding Article IX, specifically as to when
it need not be invoked, depends on whether the
United States intended that decision to be a legally
binding international practice. Absent that intent,
its decision will have no binding effect under
customary international law.
49. The National Space Policy of 2010 reads in part that
"[t]he United States will pursue bilateral and
multilateral transparency and confidence-building
measures to encourage responsible actions in, and
the peaceful use of, space. The United States will
consider proposals and concepts for arms control
measures if they are equitable, effectively verifiable,
and enhance the national security of the United
States and its allies." SeeNational Space Policy of the
United States, June 28, 2010, p. 6, available at
http://www.whitehouse.gov/sites/default/files/natio
nal_space_policy_6-28-10.pdf.
50. See generally Michael J. Listner, TCBMs: A New
Definition and New Role for Outer Space Security,
July, 2011 available at
http://www.defensepolicy.org/michlis/tcbms-anew-definition-and-new-role-for-outer-spacesecurity#!
51. See United States v. Bellaizac-Hurtado, 700 F.3d
1245, 1252 (11th Cir. 2012).
52. See Ibid.
53. The two wildcards in this analysis are the People's
Republic of China (PRC) and the Russian Federation.
Both have expressed doubts (and in some cases
disdain) for the Code. The rationale for their
objections are varied with many being political, but
the root of their objections lie in the fact the Code is
not intended to be legally binding. Both countries
co-sponsored the Treaty on the Prevention of the
Placement of Weapons in Outer Space (PPWT),
which is currently languishing in the Conference of
Disarmament (CD). The PPWT has limited support
and its prospects to become binding international
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