Transcript Binding Law

Real-World Lessons on Achievable Space Governance
From the International Code of Conduct for Outer Space
Activities, the Iran Nuclear Agreement, and the Paris
Climate Agreement
by John Goehring
The Future of Space Governance
Binding Law
Non-binding Norms
Forms of International Agreements in the U.S.
Article II Treaty
• Advice and consent of two-thirds of Senate
• No involvement from House of Representatives
Treaty-Executive Agreement
• Entered into by President under authority of existing Article II treaty
Congressional-Executive Agreement
• Complete alternative to Article II treaties
• Involve passage by both House and Senate
• Two kinds: ex post and ex ante
Forms of International Agreements in the U.S.
Ex Post Congressional-Executive Agreement
• Negotiated by President, then submitted to both House and Senate
Ex Ante Congressional-Executive Agreement
• Negotiated by President using authority already delegated by
Congress
Sole-Executive Agreement
• Entered into by President alone using inherent constitutional
authority
- Article II treaty
- Ex post congressionalexecutive agreement
- Ex ante congressionalexecutive agreement
- Treaty-executive
agreement
- Sole-executive
agreement
- Political agreement
Role of Congress
Role of Congress
Congressional Involvement
International Code of Conduct (ICOC)
Expressly non-binding political
agreement
Congressional input through ad hoc
legislation
• 2013 NDAA, Section 913
Continued congressional opposition to
“arms control” without Senate’s
consent
Defeated for reasons other than
Congress
Iran Nuclear Agreement
Clarified as non-binding political
agreement
Congressional input through ad hoc
legislation
• Iran Nuclear Review Act of 2015
Continued confusion and outcry over
the role of Congress, despite Nuclear
Review Act
Congress unable to prevent lifting of
U.S. sanctions
Paris Climate Agreement
Treaty-Executive Agreement
• UNFCCC (1992)
Commitments within scope of UNFCCC
• Binding obligation to set emissions
goals, not meet emissions goals
Continued confusion and outcry over
the role of Congress
Bypassing Congress achieved (modest)
goals
Lessons Learned
1. Non-Binding Norms are the Future … Maybe
Ease of
Passage
Congressional
Impediments
Congressional
Impediments
Ease of
Passage
Lessons Learned
2. Find Authorization in Existing Statutes, But Think Small
- National Aeronautics and Space Act of 1958, § 205?
- 51 U.S.C. § 50012, Promotion of the United States
Global Positioning System standards?
Lessons Learned
2. Find Authorization in Existing Statutes, But Think Small
National Aeronautics and Space Act of 1958, § 205:
The Administration (NASA), under the foreign policy
guidance of the President, may engage in a program of
cooperation in work done pursuant to this chapter, and in
the peaceful application of the results thereof, pursuant to
agreements made by the President with the advice and
consent of the Senate.
Lessons Learned
2. Find Authorization in Existing Statutes, But Think Small
National Aeronautics and Space Act of 1958, § 205:
“I regard this section (205) merely as recognizing that
international treaties may be made in this field, and not
as precluding, in appropriate cases, less formal
arrangements for cooperation. To construe this section
otherwise would raise substantial constitutional
questions.”
- President Eisenhower
Lessons Learned
2. Find Authorization in Existing Statutes, But Think Small
51 U.S.C. § 50012, Promotion of the United States Global Positioning
System standards
The President is encouraged to:
(1) Enter into international agreements that promote cooperation with foreign
governments and international organizations to
(A) Establish the Global Positioning System and its augmentation as an
acceptable international standard; and
(B) Eliminate any foreign barriers to applications of the Global Positioning
System worldwide
Lessons Learned
3. Reconsider Congressional Involvement
-
Congress gets involved anyway
Stronger negotiation position
Terms of agreement not constrained by prior legislation
Formal congressional role allows for more robust debate
on national interest
Conclusion
- The future of space governance ought not be
contemplated in a vacuum
- Have a plan