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elating to the now defunct(EU CoC) 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 CoC) but at the same time expressed concern about then Secretary
of State Hillary Clinton's announcement that the U.S. intended to negotiate
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the current Code.
The letter expressed Congress' 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, which would have
a legally binding effect domestically and could influence both the national
and economic security of the U.S.. The letter also contends 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 may
involve the commercial sector, particularly in terms of the growing
commercial space market and the jobs it creates. The authors of this letter
make a valid point. The Executive branch could require its agencies to
implement or comply with the practices and political promises within an
adopted Code and use regulations to achieve that end.
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
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current statutes and not a statute created in response to the Code. For
example, one of the unknowns is how the Code will affect commercial space
activities, especially in terms of future regulation. Commercial space activities
are under the jurisdiction of the Department of Transportation and
specifically FAA pursuant to Title 51, Chapter 509 of the United States
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Code. If assurances in the Code require that commercial space activities
meet certain standards, then FAA would be required to implement new
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regulations.
The same holds true for the Department of Defense and the intelligence
community in the U.S. If their activities are implicated by the Code, the
executive agencies that they operate under would be required to implement
regulations that would affect their authorisation statutes to meet the
assurances made under the Code subject to any statutory limitations.
Customary International Law: A Troublesome Question for ICoC? | www.orfonline.org 55