Export Controls and Human Spaceflight: A New Age of Reason?
Cleveland State University, Cleveland-Marshall College of Law
December 9, 2009
Cleveland-Marshall Legal Studies Paper No. 1521144
Export controls on space technology are notoriously strict in the United States, where all space technology is deemed to be munitions and is therefore subject to the burdensome International Traffic in Arms Regulations (ITAR) – even if the technology is purely commercial in nature. The burdens of ITAR are a particular threat to the global operations of U.S. companies engaged in the human spaceflight industry. As action from the Obama administration is awaited in this area, promising indications of a more reasonable application of ITAR are emerging. For example, Bigelow Aerospace announced in April of 2009 that the United States Directorate of Defense Trade Controls (DDTC) had responded favorably to its commodity jurisdiction request to ease its regulatory burden under ITAR. Prior to this decision, the presence of foreign nationals on a Bigelow space station would have been treated as an “export” of space technology under ITAR – thus requiring a license from the DDTC in addition to other burdens. Bigelow Aerospace’s successful commodity jurisdiction request has removed these obstacles and, as a result, has breathed new life into the private spaceflight industry. However, whether the ruling will be extended to the companies that will transport private passengers into space remains to be seen. The DDTC’s ruling in this case may signal a broader shift in the application of ITAR. At a minimum, the ruling is an encouraging indication of the DDTC’s sensitivity to the needs of the commercial spaceflight industry, which could result in the continued relaxation of export controls over commercial space technology. The DDTC ruling is also of interest to scholars of administrative law as an example of how discretion granted to administrative agencies can serve to remedy flaws in federal law when political dynamics prevent Congress from providing the remedies itself.
Keywords: space law, international law, administrative law, export controls
Date posted: January 11, 2010