[Senate Hearing 115-219]
[From the U.S. Government Publishing Office]
S. Hrg. 115-219
REOPENING THE AMERICAN FRONTIER:
EXPLORING HOW THE OUTER SPACE TREATY
WILL IMPACT AMERICAN COMMERCE
AND SETTLEMENT IN SPACE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON SPACE, SCIENCE,
AND COMPETITIVENESS
of the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
MAY 23, 2017
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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Available online: http://www.govinfo.gov
______
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida, Ranking
ROY BLUNT, Missouri MARIA CANTWELL, Washington
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD MARKEY, Massachusetts
DEAN HELLER, Nevada CORY BOOKER, New Jersey
JAMES INHOFE, Oklahoma TOM UDALL, New Mexico
MIKE LEE, Utah GARY PETERS, Michigan
RON JOHNSON, Wisconsin TAMMY BALDWIN, Wisconsin
SHELLEY MOORE CAPITO, West Virginia TAMMY DUCKWORTH, Illinois
CORY GARDNER, Colorado MAGGIE HASSAN, New Hampshire
TODD YOUNG, Indiana CATHERINE CORTEZ MASTO, Nevada
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Chris Day, Democratic Deputy Staff Director
Renae Black, Senior Counsel
------
SUBCOMMITTEE ON SPACE, SCIENCE, AND COMPETITIVENESS
TED CRUZ, Texas, Chairman EDWARD MARKEY, Massachusetts,
JERRY MORAN, Kansas Ranking
DAN SULLIVAN, Alaska BRIAN SCHATZ, Hawaii
MIKE LEE, Utah TOM UDALL, New Mexico
RON JOHNSON, Wisconsin GARY PETERS, Michigan
SHELLEY MOORE CAPITO, West Virginia TAMMY BALDWIN, Wisconsin
CORY GARDNER, Colorado MAGGIE HASSAN, New Hampshire
C O N T E N T S
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Page
Hearing held on May 23, 2017..................................... 1
Statement of Senator Cruz........................................ 1
Letter dated May 22, 2017 to Hon. John Thune and Hon. Bill
Nelson from Christopher Johnson, J.D., LL.M., Space Law
Advisor, Secure World Foundation and Ian Christensen,
Project Manager, Secure World Foundation................... 3
Letter dated May 17, 2017 to Senator Ted Cruz, Chairman; and
Senator Edward Markey, Ranking Member, and Members of
Space, Science, and Competitiveness Subcommittee from
Michael J. Listner, Esquire, Space Law & Policy Solutions.. 7
Letter dated May 22, 2017 to Hon. Ted Cruz and Hon. Edward
Markey from Arthur M. Dula, Trustee, and J. Buckner
Hightower, Trustee, Heinlein Prize Trust................... 12
Statement of Senator Markey...................................... 2
Statement of Senator Nelson...................................... 14
Statement of Senator Peters...................................... 46
Statement of Senator Hassan...................................... 49
Witnesses
James E. Dunstan, Founder, Mobius Legal Group, PLLC.............. 14
Prepared statement........................................... 16
Laura Montgomery, Attorney and Proprietor, Ground Based Space
Matters, LLC................................................... 24
Prepared statement........................................... 25
Matthew P. Schaefer, Veronica A. Haggart & Charles R. Work
Professor of International Trade Law; Co-Director--Space, Cyber
and Telecommunications Law Program, University of Nebraska
College of Law; and Co-Chair, American Branch of International
Law Assoc. Space Law Committee................................. 31
Prepared statement........................................... 32
Robert (Bob) Richards, Founder and Chief Executive Officer, Moon
Express, Inc................................................... 54
Prepared statement........................................... 55
Peter Marquez, Vice President for Global Engagement, Planetary
Resources...................................................... 60
Prepared statement........................................... 62
Mike Gold, Vice President, Washington Operations and Business
Development, Space Systems Loral............................... 64
Prepared statement........................................... 66
Pamela A. Melroy, U.S. Air Force (Retired), and former Astronaut. 72
Prepared statement........................................... 73
Appendix
Letter dated May 24, 2017 to Hon. John Thune and Hon. Bill Nelson
from the International Institute of Space Law.................. 85
Letter dated June 5, 2017 to Hon. John Thune and Hon. Bill Nelson
from Eric Klein, Lifeboat Foundation........................... 87
Response to written questions submitted by Hon. Bill Nelson to:
James E. Dunstan............................................. 88
Laura Montgomery............................................. 95
Matthew P. Schaefer.......................................... 95
Peter Marquez................................................ 96
Mike Gold.................................................... 97
Pamela A. Melroy............................................. 98
REOPENING THE AMERICAN FRONTIER:
EXPLORING HOW THE OUTER SPACE TREATY
WILL IMPACT AMERICAN COMMERCE
AND SETTLEMENT IN SPACE
----------
TUESDAY, MAY 23, 2017
U.S. Senate,
Subcommittee on Space, Science, and Competitiveness,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:31 p.m. in
room SR-253, Russell Senate Office Building, Hon. Ted Cruz,
Chairman of the Subcommittee, presiding.
Present: Senators Cruz [presiding], Gardner, Nelson,
Markey, Peters, and Hassan.
OPENING STATEMENT OF HON. TED CRUZ,
U.S. SENATOR FROM TEXAS
Senator Cruz. Good afternoon. This hearing is called to
order.
Fifty years ago, the United States and the Soviet Union
were locked in a period of intense international crisis. Two
decades of the Cold War had resulted in the Berlin Blockade,
the Soviet Union's testing of the atomic bomb, the successful
launch of Sputnik, the Cuban Missile Crisis, and the Vietnam
war. However, despite the prolonged period of intense
international crisis, a remarkable event occurred. The United
States and the Soviet Union were able to come together and
author the Outer Space Treaty, which was intended to become a
foundation for all future activity in outer space.
The main tenets of the treaty include the prohibition of
the placement of nuclear weapons and other weapons of mass
destruction in space or on a celestial body; the requirement
that states are responsible for national space activities,
whether carried out by governmental or non-governmental
entities; and states that outer space, including the Moon and
other celestial bodies, are not subject to national
appropriation by claim of sovereignty. Following ratification
by the Senate, the United States, the United Kingdom, and the
Soviet Union were among 60 nations to sign the Outer Space
Treaty, with signing ceremonies in Washington, D.C., London,
and Moscow, on January 27, 1967. President Lyndon B. Johnson
hailed the signing of the Treaty as, ``an inspiring moment in
the history of this human race.''
However, in the half century that has since passed, many
articles of the Treaty haven't been fully tested, as the
majority of activities in space have primarily been carried out
by governmental entities. But that could soon change as the
United States is poised to lead an explosion in commercial
space activity that will see American companies look to land on
the surface of the Moon, service satellites, and mine asteroids
which may contain platinum and other precious metals valued
upwards of trillions of dollars.
While the future appears bright, we cannot afford to become
complacent. The United States does not stand alone in this new
emerging space race. Just last month, it was announced that
China and the European Space Agency are interested in creating
an outpost on the Moon.
As activities in space increase, they will undoubtedly pose
new challenges as countries and companies compete for resources
throughout the universe. We should anticipate that there will
be conflicts as countries and private industry race to reach
areas of the Moon that hold significant advantages, such as
the, ``peaks of eternal light'' and the lunar sites that may
hold vast quantities of water. These sites will provide
economic and operational advantages for those who reach them
first.
Therefore, it's incumbent on Congress to use this 50-year
anniversary of the Outer Space Treaty to properly determine our
actual international obligations, to decide if specific
articles in the treaty are self-executing or not, and to ensure
that our domestic policy moving forward creates an environment
that provides certainty for industry while protecting our
national security. Those decisions will be made by this
committee, by the Senate as a whole, and by the Congress and
the President.
In this committee, this is the second in a series of
hearings looking at reopening the American frontier in space.
That's why we're gathered here today. The testimony that this
committee will hear will help pave the way to the future of
space exploration and our global competitiveness. Every little
boy and every little girl knows the experience of looking up
into the night sky, looking to the stars and wondering what's
out there. That's the mystery, that's the wonder that is behind
this collective endeavor in which we're engaged.
If this committee can, working together in a bipartisan
manner, as it has succeeded in doing for several Congresses
now--if we can come together behind a strong national space
policy that ensures continued American leadership in space,
then I have no doubt that in the not too distant future, those
same little boys and little girls will be looking up at the
Moon, looking up at Mars, and looking up at Americans walking
on the surface of those bodies, perhaps living on the surface
of those bodies, exploring new opportunities that the mind can
scarcely imagine. That's what this hearing is all about.
With that, Senator Markey.
STATEMENT OF HON. EDWARD MARKEY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Markey. Thank you, Mr. Chairman, very much, and
thank our witnesses.
This is a very, very forward-looking hearing, because we're
going to be looking at how our policy can support a growing
commercial space industry. We are here today to explore how the
Outer Space Treaty impacts commerce, impacts settlement in
space, and impacts what may be needed to provide a regulatory
framework that grants certainty to businesses and investors and
establishes an international understanding of expectations for
countries and companies operating in space.
The Outer Space Treaty provides a set of principles for
space activities that guides all countries and is an important
foundation to build upon to ensure America's interests are
preserved in outer space. There are things that were not
anticipated or planned for in this treaty when it was
negotiated in the late 1960s. The testimony today will explore
some of those issues and how U.S. policy might help address
some of those concerns.
In particular, Article VI of the Treaty, which gives
governments the responsibility for all space activities from
their nation, whether undertaken by the government or not, has
been an issue. I look forward to hearing the views of our
witnesses on what is needed to create effective and efficient
policies that will promote the reasonable, rational, safe, and
fair use of space. Space policies need to include room for all
nations' responsible activities, for small businesses as well
as large, and for science and non-profit activities as well as
for-profit activities in this new frontier.
The United States continues to be a pioneer in space
activities, and our policy should support the continued
innovation that has been the key to America's economic success.
I look forward to working with this subcommittee and
stakeholders to ensure that America continues to be a leader in
space.
I look forward to working with you, Mr. Chairman, and
leaders like Senator Peters and Senator Hassan to accomplish
that goal.
Senator Cruz. Thank you, Senator Markey.
At the outset, without objection, I want to enter into the
hearing record a letter from the Secure World Foundation, a
letter from Michael J. Listner of Space Law and Policy
Solutions, and a letter from the Heinlein Prize Trust.
[The information referred to follows:]
Secure World Foundation
May 22, 2017
To: U.S. Senate Committee on Commerce, Science, and Transportation
Senator John Thune, Chairman
Senator Bill Nelson, Ranking Member
CC: U.S. Senate Subcommittee on Space, Science, and Competitiveness
Senator Ted Cruz, Chairman
Senator Edward Markey, Ranking Member
Subject: Letter for the record for the hearing on ``Reopening the
American Frontier: Exploring How the Outer Space Treaty Will Impact
American Commerce and Settlement in Space''
Mr. Chairman, Ranking Member Nelson, and Members of the Committee,
The Secure World Foundation (SWF) is a non-governmental
organization dedicated to ensuring the long-term sustainable use of
outer space. We believe that strong, predictable, and coherent
governance frameworks which take into account the long-term interest of
all stakeholders are fundamental to ensuing sustainability and progress
in space activities. As such, SWF has a keen interest in the topics to
be discussed at the hearing organized by your Subcommittee on May 23,
2017. We submit the following letter in support of the Subcommittee's
deliberations.
1. The United States was the driving force behind the Outer Space
Treaty
The U.S. Government was the driving force behind the negotiation
and drafting of the 1967 Outer Space Treaty, in large part because it
supported U.S. national security interests. At the time, a major U.S.
policy objective was to enable the use of satellites to gather
intelligence on the Soviet Union, and the principle of ``peaceful
uses'' supported that goal. In May 1966, President Lyndon Johnson
instructed Ambassador to the U.N. Arthur J. Goldberg to bring to the
United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) a
draft treaty on space for its expedient negotiation and
finalization.\1\ Borrowing from previous instruments, the American
draft formed the majority of the final text of the Treaty. The Treaty
was subsequently sent to the U.N. General Assembly in December 1966 for
adoption in U.N. Resolution 2222, and opened for signature in
Washington, London, and Moscow. A signing ceremony was held at the
White House on January 27, 1967,\2\ where President Johnson commended
the Treaty as a step towards the peaceful uses of space.\3\ At the U.S.
Senate Foreign Relations Committee hearings on ratifying the Treaty,
Secretary of State Dean Rusk and Ambassador Goldberg testified to the
Treaty's worth as both an arms control measure that protects U.S.
national security and ensured private sector access to space.\4\ The
Treaty entered into force in October 1967, and the United States serves
as one of the Depository Governments for signatures by states becoming
party to the Treaty. As 2017 is the fiftieth anniversary of the Outer
Space Treaty, the United States can rightly be proud of its
international treatymaking effort, which continues to serve as the
foundation of the international legal framework for all space
activities.
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\1\ The American Presidency Project, Lyndon B. Johnson--Statement
by the President on the Need for a Treaty Governing Exploration of
Celestial Bodies, 7 May 1966. Available at: http://
www.presidency.ucsb.edu/ws/?pid=27581.
\2\ British Pathe, Space Treaty Signed in Washington (1967).
Available at: https://youtu.be/086Ygv-4ras and https://youtu.be/
s8OlCpkSzZA. See also: The LBJ Library, The President-January 1967.
Available at: https://youtu.be/gF5OZ7nANTI?t=25m55s.
\3\ The American Presidency Project, Lyndon B. Johnson--Remarks at
the Signing of the Outer Space Treaty, 27 Jan. 1967. Available at:
http://www.presidency.ucsb.edu/ws/?pid=28205.
\4\ Treaty on Outer Space: Hearings Before the S. Comm. on Foreign
Relations, 90th Cong., 7, 27-29 (1967) (Statements of Sec. of State
Dean Rusk and Arthur J. Goldberg, Ambassador). Available at: http://
bit.ly/2qyy5fr.
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2. Private space activities were ensured, protected through U.S.
negotiation
During the negotiations of the Outer Space Treaty, the United
States was able to secure the right of the private sector to engage in
space activities. The language in the Outer Space Treaty permitting
non-governmental private actors to explore and use space is taken from
an earlier U.N. Resolution on space, the 1963 Principles
Declaration.\5\ In that Resolution's negotiation phase, a draft
submitted by the Soviets would have prohibited all non-governmental
private activities in space. The Soviet proposal read ``all activities
of any kind pertaining to the exploration and use of outer space shall
be carried out solely and exclusively by states.'' \6\ The American
counterproposal offered a compromise which assigned responsibility and
liability to a state for launches from its territory and for launches
to which it gave assistance or permission.\7\ The Soviets accepted this
compromise permitting private non-governmental entities, and three
years later this language from the 1963 Principles Declaration made its
way unmodified into Article VI of the Outer Space Treaty. In summary,
the legality of commercial uses of outer space is a success of American
foresight and diplomatic skill.
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\5\ UN General Assembly Resolution 1962 (XVII), 13 Dec. 1963,
Declaration of Legal Principles Governing the Activities of States in
the Exploration and Use of Outer Space, Principle 5. Available at:
http://www.un-documents.net/a18r1962.htm.
\6\ United Nations, Committee on the Peaceful Uses of Outer Space,
Union of Soviet Socialist Republics: Draft Declaration of the Basic
Legal Principles Governing the Activities of States Pertaining to the
Exploration and Use of Outer Space, A/AC.105/L.2 (1962) pg. 2, para. 7.
Available at: http://www.unoosa.org/pdf/limited/l/AC105_L002E.pdf.
\7\ United Nations, Committee on the Peaceful Uses of Outer Space,
Letter Dated 8 December 1962 from the Representative of the United
States of America to the Chairman of the First Committee, A/C.1/881, at
para. 6. Available at: http://www.unoosa.org/pdf/garecords/
A_C1_881E.pdf. See also Michael Gerhard, Article VI, in Cologne
Commentary on Space Law-Vol. 1, 105 (Hobe, Schmidt-Tedd & Schrogl eds.,
2009).
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3. The Outer Space Treaty is part of a permissive, open system
The Outer Space Treaty creates a legal framework that is inherently
permissive in its nature. The full title of the Outer Space Treaty is
the `Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and Other
Celestial Bodies.' As the title shows, this Treaty is a treaty of
principles, rather than an exhaustive and comprehensive delineation of
precise rights and obligations in every circumstance,\8\ and it is
focused on enabling use of outer space.
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\8\ See also footnote 4, testimony of Dean Rusk ``The treaty is not
complete in all possible details. It does not deal with all problems
that may develop. But it is responsible to those problems that can be
described and forecast today.'' (pg. 4).
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The Treaty's articles contain a finite body of obligations which
serve as limits to the freedom established in Article I. They include
the duty to render assistance to foreign astronauts and to return both
them and foreign space objects to their launching state (Art. V), the
duty to bear international responsibility for all national space
activities (Art. VI), the duty to authorize and continually supervise
the activities of non-governmental actors (Art. VI), and the duty of
international liability to other States Parties to the Treaty for
damage from launched space objects (Art. VII). Additionally, articles
prohibit the placement of nuclear weapons or other weapons of mass
destruction into space or on celestial bodies (Art. IV), the
prohibition on space activities causing harmful contamination of
celestial bodies and adverse changes in the Earth's environment (Art.
IX), and the prohibition on the national appropriation of outer space,
including the Moon and other celestial bodies (Art. II). This short
list of obligations are the only limits to the freedoms enshrined in
Article I.
The Outer Space Treaty is the foundation of subsequent
international law on space. The Outer Space Treaty's Article V,
protecting astronauts, was expanded and its provisions clarified in the
1968 Astronaut Rescue and Return Agreement. Articles VI and VIII were
expanded and clarified in the 1972 Liability Convention. Lastly,
Article VIII dealing with registration was expanded and clarified with
the 1975 Registration Convention. In 1986 the UN General Assembly
adopted a resolution describing Principles Relating to Remote Sensing
of the Earth from Space, providing non-binding yet generally accepted
guidelines clarifying the relationship of space-based remote sensing
activities to international law. This further work was done within
COPUOS and led by the United States, and these efforts demonstrate that
the Outer Space Treaty is the foundation of a system which is open to
expansion, clarification, and modification.
Aside from this short list of finite obligations, the framework
established by the Outer Space Treaty is quite permissive. A general
presumption in international law is the lotus principle, or that `that
which is not explicitly prohibited is therefore permitted.' \9\ Taking
into account that the Outer Space Treaty refrains from directly
addressing or regulating various emerging and prospective activities in
outer space, applying the lotus principle to the gaps in the Treaty
demonstrates that the Outer Space Treaty does not clearly restrict any
of the commercial activities that so excite and inspire the American
space community.
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\9\ See generally Ian Brownlie, Principles of Public International
Law 291 (7th ed.) (2008) ``Restrictions upon the independence of States
cannot be presumed''; Hugh Thirlway, The Law and Procedure of the
International Court of Justice, Vol. 1, 505 (2016).
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4. The Outer Space Treaty has supported 50 years of commercial activity
Over the last five decades, the Outer Space Treaty has enabled
commercial uses of outer space to become a global and multibillion
dollar industry. In 2015, worldwide revenues from commercial space
products, services, manufacturing, and infrastructure surpassed $247
billion, according to annual figures compiled by the U.S. Space
Foundation.\10\ Much of this activity is conducted by U.S. companies
and individuals: the United States leads the world in the number of
satellites manufactured, and, in 2015, the United States conducted more
commercial space launches than any other country.\11\ Sources of
capital that are enabling innovative space start-up activity are
concentrated in the United States as well: a 2016 industry report found
that 66 percent of the more than 250 identified investors in space
start-ups are U.S.-based, while the remaining 34 percent were
distributed through 25 different countries.\12\
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\10\ U.S. Space Foundation, The Space Report 2016--Overview.
Available at: https://www.space
foundation.org/sites/default/files/downloads/
The_Space_Report_2016_OVERVIEW.pdf.
\11\ Bill Canis, Commercial Space Industry Launches a New Phase
(Congressional Research Service Report R44708), Dec. 12, 2016, 2. See
also Federal Aviation Administration, The Annual Compendium of
Commercial Space Transportation 2016, Available at: https://
www.faa.gov/about/office_org/headquarters_offices/ast/media/
2016_Compendium.pdf.
\12\ The Tauri Group, Start-up Space, 2016.
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These commercial uses of outer space have developed--indeed
flourished--under domestic law developed in consistency with the system
of international space law, of which the Outer Space Treaty is a
foundational component. Working under the principles of the Outer Space
Treaty, the United States and other governments have developed and
implemented domestic legal and regulatory frameworks to enable several
categories of commercial activities. It cannot be said that the Outer
Space Treaty has hindered the commercial uses of outer space that have
developed and expanded so dramatically in the previous decades.
At the moment, the main restrictions on further innovation and
commercial development of space come largely from U.S. national law,
not the Outer Space Treaty. U.S. export controls on satellites have
already caused the U.S. space sector to lose a significant portion of
global market share. Several categories of remote sensing and on-orbit
activities are heavily restricted, or, in some cases, have historically
been off limits for U.S. commercial entities, enabling foreign
competitors to leap ahead and establish global markets. And there are
several types of commercial space activities planned for the near
future that do not clearly fall under any of the existing national
licensing authorities. These gaps create uncertainty that gives rise to
real-world challenges for start-up companies trying to secure investors
and insurers, a phenomenon many new space companies are struggling
with.
5. The U.S. has more effective avenues to further encourage commercial
space
It would be extremely difficult, and likely counterproductive, for
the United States to withdraw from or seek amendment to the Outer Space
Treaty. As of 2017, 105 countries have ratified the Outer Space
Treaty.\13\ These include all of the historically spacefaring states
such as the United States, Russia, China, India, Brazil, Japan, and all
the Member States of the European Space Agency (ESA). A further 25
countries have signed the Treaty, which expresses their intention to
ratify it in the future, or at least to not take actions contrary to
the purposes of the Treaty. Additionally, many of the foundational
provisions of the Outer Space Treaty are so well respected that they
are considered to have passed into the realm of customary international
law.\14\
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\13\ United Nations, Committee on the Peaceful Uses of Outer Space,
Legal Subcommittee, Status of International Agreements relating to
activities in outer space as at 1 January 2017, A/AC.105/C.2/2017/CRP.7
(2017). Available at: http://www.unoosa.org/res/oosadoc/data/documents/
2017/aac_105c_22017crp/aac_105c_22017crp_7_0_html/AC105
_C2_2017_CRP07E.pdf.
\14\ Francis Lyall & Paul B. Larsen, Space Law--A Treatise 418. See
also Adam Mann, Who's in Charge of Outer Space?, Wall St. J., May 19,
2017, quoting Sagi Kfir, General Counsel of Deep Space Industries:
``[The Outer Space Treaty] is so fundamental that its principles have
become customary international law even for those countries that aren't
signatories.'' Available at: https://www.wsj.com/articles/whos-in-
charge-of-outer-space-1495195097.
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As a consequence of this wide international success, an attempt to
amend the Treaty is likely to be extremely difficult, and it is not
certain it would advance U.S. interests. First, if the United States
officially broaches the subject of amending the Outer Space Treaty, it
is likely that other countries would identify issues of their own they
would like addressed, not all of which would be aligned with U.S.
interests. Moreover, given the diversity of countries that are States
Parties to the Outer Space Treaty, reaching the threshold of 53
required to amend the text (via Art. XV) is a serious obstacle.
However, other avenues exist to clarify and define the rights and
obligations of states under the broad principles already established by
the Outer Space Treaty. The first is through national space law and
regulation. Here, the United States has a significant opportunity to
take a leadership role in the international community. Historically,
other countries have modeled their national policy and regulation on
the examples provided by the United States. Thus, how the United States
approaches the current issue could have widespread international
implications. Additionally, the United States can also shape the
interpretation and implementation of the Outer Space Treaty through
multilateral initiatives. Over the last few decades, the United States
has played a leadership role in establishing international non-binding
norms and guidelines regarding satellite broadcasting, space debris
mitigation, nuclear power sources for use in space, and the long-term
sustainability of space activities. This work is done both within
COPUOS and elsewhere. For example, governments have cooperated through
the Inter-Agency Space Debris Coordination Committee (IADC) to
coordinate discussion of technical and policy matters related to space
debris mitigation. This process represents the development of
additional clarifications without require amendment to any existing
treaty. These multilateral efforts are seen as conducive to the
creation of norms and best practices which can receive widespread
acceptance and adherence.
6. Conclusion
We strongly believe that continuing to support the Outer Space
Treaty and further enhancing U.S. national oversight frameworks will be
the best method for promoting commercial development in space. As more
countries acquire the capability to engage in commercial space
activities, it will be important for U.S. companies to be working
inside a predictable international legal framework that can encourage
and protect investments. The Outer Space Treaty provides the
foundational level of certainty in the international system that
commercial space entrepreneurs, businesses, and capital sources require
to develop further innovative activities.
Rather than an arduous and unpredictable international amendment
process, domestic space law is often the best avenue to address any
gaps or needs for further clarity, especially regarding emerging
activities in space such as space debris removal, satellite servicing,
and celestial resource use. Activities which engender international
apprehension might also be pursued on a multilateral basis in the form
of new instruments that augment, rather than replace, the Outer Space
Treaty. Modification or withdrawal from the Outer Space Treaty leaves,
on balance, too many uncertainties in outcome, with little clear actual
utility, either political or legal.
The Secure World Foundation would like to once again commend the
Subcommittee for focusing on such an important issue, and express our
support for U.S. governmental efforts to respond to the needs of the
commercial space sector while ensuring a sustainable international
governance framework in outer space.
Respectfully,
Christopher Johnson, J.D., LL.M.,
Space Law Advisor,
Secure World Foundation.
Ian Christensen,
Project Manager,
Secure World Foundation.
______
Space Law & Policy Solutions
Rochester, NH
Memorandum
THIS MEMORANDUM AND ITS CONTENTS IS FOR INFORMATIONAL
PURPOSES ONLY. OPINIONS ARE THOSE OF THE AUTHOR, AND IT SHOULD NOT BE
RELIED UPON AS LEGAL ADVICE, IS NOT LEGALLY PRIVILEGED AND DOES NOT
CREATE AN ATTORNEY/CLIENT
RELATIONSHIP.
To: Senator Ted Cruz (R-TX), Chairman, Senator Edward J. Markey (D-MA),
Ranking Member and Members of Space, Science and Competitiveness
Subcommittee
From: Michael J. Listner, Esquire
CC: Senator John Thune (R-SD), Chair, Senate Committee on Commerce,
Science, and Transportation
Date: May 17, 2017
Re: The Outer Space Treaty: Implications of Amendment and Withdrawal.
Senator Cruz, Senator Markey and Honorable Members of the Committee,
My name is Michael J. Listner, and I am an attorney licensed to
practice law in and before the state and Federal courts of the State of
New Hampshire. I am also the Founder and Principal of the legal and
policy consultation firm, Space Law and Policy Solutions and the editor
of the space law and policy briefing-letter The Precis.
This Subcommittee will examine the effect of The Treaty on
Principles Governing the Activities of States in the Exploration and
Use of Outer Space, Including the Moon and Other Celestial Bodies
(Outer Space Treaty) on free enterprise with regards to both current
and future private outer space activities.\1\ Implicit in the
discussion of the Outer Space Treaty and private outer space activities
is the question of amendment or withdrawal.
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\1\ The Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies, October 10, 1967, 18 UST 2410, 610 UNTS 205.
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The question of amending or withdrawing from the Outer Space Treaty
is polarizing. The global community hailed the 50th anniversary of the
Outer Space Treaty being open for signature this past January with the
expectation of the accord lasting another fifty years. On the other
side, space advocates, especially in the community advocating
settlement and exploitation, look to outer space as the new frontier
akin to the 1800s and the opening of the West. This special interest
sees the Outer Space Treaty as an impediment to settling outer space
and alludes to legislation like the Homestead Act of 1862 as the model
for the future settlement of outer space.\2\ The res communis \3\
principle of the Outer Space Treaty found in Article I and II precludes
a grant of title to land to private individuals similar to the 1862
Act.\4\
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\2\ 'Property' in the strict legal sense is an aggregate of rights
which are guaranteed and protected by government. Fulton Light, Heat &
Power Co. v. State, 65 Misc. 263, 270. The Homestead Act in essence did
this by exercising national sovereignty over lands formerly held by
Native Americans and guarantying homesteaders possession subject to
conditions within the Act. This act of national sovereignty is the
antithesis of the res communis doctrine and specifically prohibited in
Article II of the Outer Space Treaty, which makes analogies of outer
space to the Homestead Act inaccurate.
\3\ See Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies, October 10, 1967, art. I & II, 18 UST 2410.
\4\ Res communis is a concept derived from Roman property law that
refers to the light and the air. See Merriam-Webster Dictionary at
https://www.merriam-webster.com/dictionary/res%20communes. See also,
Black's Law Dictionary, Sixth Edition, res communes--``In the civil
law, things common to all; that is, those things which are used and
enjoyed by everyone, even in the single parts, but can never be
exclusively acquired as a whole, e.g. light and air.'' The idea behind
res communis in the reference to both the Antarctic Treaty and the
Outer Space Treaty is that no sovereign can extend [state] ownership
much in the same way no one can extend control over the air or the
light. In other words, in the case of outer space and celestial bodies,
they belong to no nation. It is notable in regards to usage and
passage, the high seas are considered res communis.
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Understanding the Rationale for The Outer Space Treaty
The Outer Space Treaty is a culmination of principles with legal
rights and obligations interspersed. The Outer Space Treaty is
purposely ambiguous and during negotiations the major space powers most
notably the United States, reserved the right to interpret those
ambiguities broadly. This has been most recently demonstrated with the
interpretation of Article I and Article II of the Outer Space Treaty by
the United States to permit the extraction and possession of ``space
resources'' by private citizens as enacted in Title 51, Chapter 513 of
the United States Code.
The Outer Space Treaty also contains strict prohibitions and legal
duties. A prominent prohibition is found in Article IV, which expresses
the arms control nature of the Outer Space Treaty and prohibits the
placement of nuclear weapons in outer space, including celestial
bodies.
States Parties to the Treaty undertake not to place in orbit
around the Earth any objects carrying nuclear weapons or any
other kinds of weapons of mass destruction, install such
weapons on celestial bodies, or station such weapons in outer
space in any other manner.
Article IV also expresses the mandate outer space should be used
for peaceful purposes and precludes the placement of military
installations in space, including the Moon and other celestial bodies.
The Moon and other celestial bodies shall be used by all States
Parties to the Treaty exclusively for peaceful purposes. The
establishment of military bases, installations and
fortifications, the testing of any type of weapons and the
conduct of military maneuvers on celestial bodies shall be
forbidden. The use of military personnel for scientific
research or for any other peaceful purposes shall not be
prohibited. The use of any equipment or facility necessary for
peaceful exploration of the Moon and other celestial bodies
shall also not be prohibited. \5\
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\5\ See Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies, October 10, 1967, art. IV, 18 UST 2410.
The idea behind Article IV is nuclear weapons or other weapons of
mass destruction are not permitted and outer space is to be used for
peaceful purposes.\6\
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\6\ Even though Article IV has an express prohibition against the
operation of nuclear weapons in outer spaces, the broad nature of the
Outer Space Treaty is allowed a potential work-around to that
prohibition, which was considered as a lead up to the Strategic
Defensive Initiative (SDI) as proposed by President Reagan. In
particular, the X-ray laser system proposed by Edward Teller and
researched by Project Excalibur would have implicated Article IV as the
system would have consisted of a small nuclear device launched aboard
an ICBM or SLBM that when detonated in outer space would have channeled
a fraction of the energy released into high intensity laser beams that
would destroy enemy missiles during their boost phase. The device would
be destroyed in the course of detonation and it's this operation of a
nuclear weapon in outer space, and not the resulting laser beam Article
IV technically would have prohibited. However, it could have been
argued the devices were purely defensive and were not actually placed
in orbit to remain there, but rather they were of a transient nature
and only remained in outer space long enough to fulfill their defensive
function against incoming enemy missiles. Moreover, because the
function of the X-ray laser system would have been defensive and hence
non-aggressive, it could be argued its use would have correlated with
Article IV's principle outer space should be used for peaceful
purposes. See Maj. John E. Parkenson, Jr., International Legal
Implications of the Strategic Defense Initiative, 116 Mil. L. Rev. 67,
86-89 (Spring 1987).
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Another legal obligation/duty is found in Article VI.
States Parties to the Treaty shall bear international
responsibility for national activities in outer space,
including the Moon and other celestial bodies, whether such
activities are carried on by governmental agencies or by non-
governmental entities, and for assuring that national
activities are carried out in conformity with the provisions
set forth in the present Treaty. The activities of non-
governmental entities in outer space, including the Moon and
other celestial bodies, shall require authorization and
continuing supervision by the appropriate State Party to the
Treaty. When activities are carried on in outer space,
including the Moon and other celestial bodies, by an
international organization, responsibility for compliance with
this Treaty shall be borne both by the international
organization and by the States Parties to the Treaty
participating in such organization. \7\
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\7\ See Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies, October 10, 1967, art. VI, 18 UST 2410.
Article VI requires States to bear responsibility for national
activities in outer space whether those activities are performed by
government or non-government actors. Article VI also includes the
mandate for activities of non-government entities to be ``authorized''
and ``continually supervised''.\8\
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\8\ The requirement to authorize and continually supervise is a
compromise between the United States and the Soviet Union during the
negotiations of the Outer Space Treaty. The Soviet Union took the
position outer space activities should be limited to government actors
while the United States wanted to include non-government actors. The
compromise was reached to include non-government actors with the
stipulation their activities be authorized and continually supervised
in a manner left to the discretion of the State.
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The Outer Space Treaty was conceptualized in the geopolitical
environment after World War II and in the advent of the Cold War with
the Soviet Union. In particular the Outer Space Treaty was intended as
a hedge against the possibility the Soviet Union would reach the Moon
first and make territorial claims with the resultant military and
national security implications. This concern and its implications were
manifest in Project Horizon, which was a 1959 U.S. Army proposal to
establish a lunar outpost. In terms of policy considerations, the
Project Horizon proposal extolled the national security implications of
establishing a lunar outpost before the Soviet Union reached the
Moon.\9\
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\9\ See generally, Project Horizon, Volume I, Summary and
Supporting Considerations, March 21, 1959 [Regraded Unclassified,
September 21, 1961], pp. 61-81, available at http://nsarchive.gwu.edu/
NSAEBB/NSAEBB479/docs/EBB-Moon01_sm.pdf.
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This was considered a very real possibility with the Soviet success
with Sputnik-1 and territorial claims the Soviet Union made prior to
that accomplishment.\10\ Even before Sputnik, Eisenhower perceived
outer space as a potential Pearl Harbor and sought to meld space
exploration, disarmament and the creation of international law through
his idea of ``space for peace'' and an environment free from national
military rivalries.\11\ This led to his proposal for a new
international treaty [the Outer Space Treaty] that would be modeled
after the Antarctic Treaty of 1959 \12\ in order to prevent a new form
of colonial competition in outer space.\13\
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\10\ Prior to the launch of Sputnik-1, the Soviet Union did not
limit its sovereignty to the stratosphere and regarded outer space
above its territory part of its sovereign control. However, the launch
of Sputnik-1 challenged this claim of sovereignty as Sputnik would be
clearly violating the ``territory'' of other nations. The Soviets when
confronted with this conundrum tried to explain Sputnik had not
violated the territory of other nations as it did not pass over the
territory of those nations, but rather the territories of other nations
passed beneath Sputnik. See Delbert R. Terrill, Jr., The Air Force Role
in Developing International Space Law, Air University Press, May 1999,
pp. 27-30.
\11\ Id. at pp. 3-9.
\12\ See generally, Antarctic Treaty, June 21, 1961, 12 UST 794;
402 UNTS 7.
\13\ See generally, Narrative, Treaty on Principles Governing the
Activities of States in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies (Outer Space Treaty),
Bureau of Arms Control and Compliance, Department of State, available
at https://www.state.gov/t/isn/5181.htm.
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The Outer Space Treaty served its Cold War role well. However, the
question is begged whether it is relevant in a post-Cold War
geopolitical environment and whether its purpose to prevent
geopolitical competition in outer space is impeding development of
outer space in particular the development of outer space by the private
sector. Certainly, the interpretation of the Outer Space Treaty by the
United States to ``allow'' the harvesting of ``space resources'' by
U.S. citizens by classifying a property interest in space resources as
an activity leading to a property interest illustrates the limitations
of the Outer Space Treaty with regards to private enterprise.\14\ It
also represents the limitations of the policy position taken the United
States prior to and in response to the Bogota Declaration \15\ of
1976.\16\ In other words, the Outer Space Treaty is being stretched to
permit the extraction and ownership of space resources, but it cannot
be stretched to provide commercial operators with the holy grail of
title to sections of or celestial bodies in their entirety.
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\14\ In its simplest terms 51 U.S.C Sec. 51303 creates a usufruct.
A usufruct is a real property interest that can simply be described as
the conjoining of the right to ``use'' property and the right to the
``fruits'' of that use. In other words, while ``use'' grants a property
interest that allows a private person to use resources belonging to the
land of another to support their occupancy on the land, a usufruct
allows the person to harvest the fruits of the occupied land and
convert it to their own use, i.e., possess, own, transport, use, and
sell. However, in the context of international law, ``use'' and
``usufruct'' are synonymous and considered an activity that creates a
property interest in personal property as opposed to a real property
interest that permits an activity, i.e., mining. The recognition of the
need to define an usufruct or ``use'' as an activity and not a real
property interest confirms the understanding of the Outer Space Treaty
does not permit a real property interest. Compare, Louisiana Mineral
Code, La. R.S. Sec. 31:21, which defines a usufruct for minerals as a
``mineral servitude'' where ``[a] mineral servitude is the right of
enjoyment of land belonging to another for the purpose of exploring for
and producing minerals and reducing them to possession and ownership.''
\15\ The Bogota Declaration was an attempt by nations lying on or
near the equator to make sovereign territorial claim of corresponding
sections of geosynchronous orbital slots reside. Given the unique
nature of geosynchronous orbit, the equatorial nations signing the
Declaration stipulated because of the unique attributes of
geosynchronous orbital slots, they represent a limited natural resource
that was better administered by the nations under which the slots
reside as opposed to administration by the International
Telecommunications Union (ITU). The Declaration was flatly rejected by
the major spacefaring nations and non-spacefaring nations alike, and
the United States took the opportunity in responding to the Declaration
to announce its own policy positions with regards to commercial
activities in outer space.
\16\ The United States has taken the position the ``province of all
mankind'' provisions are compatible with conducting and developing free
enterprise and the right to determine how it shares the benefits and
results of U.S. space activities. See J.I. Gabrynowicz, the
``Province'' and ``Heritage'' of Mankind Reconsidered: A New Beginning,
p. 694, citing Christol, C.Q. (1982), The Modern International Law of
Outer Space, p. 40.
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Amendment or Withdrawal From the Outer Space Treaty?
The effect of the Outer Space Treaty on private enterprise and real
property rights are at the center of the controversy as to whether to
seek amendment or withdraw. Amendment to the Outer Space Treaty is
permitted per Article XV:
Any State Party to the Treaty may propose amendments to this
Treaty. Amendments shall enter into force for each State Party
to the Treaty accepting the amendments upon their acceptance by
a majority of the States Parties to the Treaty and thereafter
for each remaining State Party to the Treaty on the date of
acceptance by it.\17\
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\17\ Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies, October 10, 1967, art. XV, 18 UST 2410.
While many parties to the Treaty express the desire to amend
provisions for various reasons from time-to-time, none of the Big Three
(United States, Russian Federation and People's Republic of China) have
shown an interest in doing so. Even if amendment was politically
palatable, the proposed amendment(s) would have to be approved by a
majority of the parties of the Treaty.\18\ Yet, when it comes to the
holy grail of title to sections of or celestial bodies in their
entirety, amendment to the res communis principle is politically
unviable and would undermine the foundation of the Outer Space Treaty
itself.\19\ This means amending the Outer Space Treaty may not be able
to solve the fundamental issue of real property rights that is a
central interest for private sector development and settlement.\20\
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\18\ In the case of non-interference with space resource
extraction, agreement could be made bilaterally between two nations
through a non-binding protocol as opposed going through an amendment
process. This idea is beyond the scope of this Memorandum but
illustrates optional methods of addressing some of the short-comings of
the Outer Space Treaty.
\19\ There is also the matter of the soft-power response to the
United States unilaterally seeking to amend the Outer Space Treaty.
Geopolitics being what it is, many of the non-developed countries (with
encouragement from the Russian Federation and perhaps China) would
raise the specter of the United States seeking to leverage its status
as a superpower to get what it wants. On the other hand, the government
of Luxembourg has suggested amendment to the Outer Space Treaty might
be in order to address concerns its legislative body has raised with
regards to space resources. Allowing a nation like Luxembourg to broach
the topic of amendment with the United States riding its coattails
might be a path to amendment. Yet, any amendment Luxembourg might
propose would still not reach the level of change needed to acquire
real property rights.
\20\ A possible amendment that might allay the concerns of private
enterprise is the idea of ``exclusion zones'' around the area of an
activity authorized under Article VI. However, since any personnel and
space objects performing activities under Article VI are subject to the
continuing jurisdiction or Article VIII, there is an argument these
exclusion zones would represent ``pockets of national appropriation''
of a celestial body, which would violate Article II of the Outer Space
Treaty. See Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies, October 10, 1967, art. II & art. VIII, 18 UST 2410.
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In order to address the issue of real property rights, it may be
necessary to withdraw from the Outer Space Treaty in its entirety.
Article XVI provides for withdrawal:
Any State Party to the Treaty may give notice of its withdrawal
from the Treaty one year after its entry into force by written
notification to the Depositary Governments. Such withdrawal
shall take effect one year from the date of receipt of this
notification. \21\
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\21\ Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies, October 10, 1967, art. XVI, 18 UST 2410.
Withdrawal from the Outer Space Treaty would be no small matter as
the geopolitical backlash would be considerable. Such a decision would
not be made overnight and would require significant consideration of
the potential ramifications not only by the Department of State but
other agencies including NASA, the Department of Defense, NOAA, the
intelligence community and any agency with duties that relate to outer
space activities and international law and relations. Certainly, non-
governmental organizations would be queried as to their opinion as
would academia and the Senate Foreign Relations Committee.\22\
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\22\ Even though the Senate would weigh in on potential withdrawal
from the Outer Space Treaty, the final decision would remain with the
Executive Branch, especially given the Outer Space Treaty permits
withdrawal. That does not preclude the members of the Senate voicing
their opposition.
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The underlying concern to withdrawal is whether the benefits of
withdrawing from the Outer Space Treaty would outweigh the geopolitical
and national security implications withdrawal would trigger. If and
when the U.S. invoked Article XVI, the withdrawal process would
instigate condemnations and implicate the trustworthiness of the United
States with geopolitical adversaries like the Russian Federation who
would use the announcement to enhance its own soft-power in the United
Nations and particularly among the smaller space-faring and the non-
space-faring nations.\23\ Even more unsettling, withdrawal could also
find opposition from traditional geopolitical allies. That being the
case, unilateral withdrawal from the Outer Space Treaty would be a
politically painful process for the United States to endure.
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\23\ It's unclear how the People's Republic of China would respond
to an announcement of withdrawal. On the one hand, China could take the
opportunity to enhance its soft-power standing in the United Nations
and level political rhetoric against the United States. On the other
hand, it could take a stance similar to ``space resources'' and quietly
watch while the United States is pummeled with the political fallout
and then announce its own withdrawal following the path the United
States created without paying the political price.
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However, the United States could mitigate some of the political
fallout by filling in the legal vacuum during the withdrawal process
with customary international law. As part of the withdrawal process,
the United States could announce its intention to recognize as custom
certain principles and legal obligation in the Outer Space Treaty.\24\
For example, the United States could agree to recognize Articles III
through XII as binding customary international law subject to its own
interpretation through state practice. Most critically, the United
States would have to address how it intends to replace the res communis
principle in the Outer Space Treaty in a manner that would draw
international consensus, especially seeing as unilateral withdrawal
from the Treaty would likely be precipitated on the rationale of
providing its citizens greater rights and flexibility in outer space
activities and in particular title to sections of celestial bodies or
celestial bodies in their entirety.
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\24\ Customary international law is defined as international
obligations arising from established state practice, as opposed to
obligations arising from formal written international treaties. It
consists of two components. First, there must be a general and
consistent practice of states. This does not mean that the practice
must be universally followed; rather, it should reflect wide acceptance
among the states particularly involved in the relevant activity.
Second, there must be a sense of legal obligation, or opinio juris sive
necessitatis. In other words, a practice that is generally followed but
which states feel legally free to disregard does not contribute to
customary law; instead, there must be a sense of legal obligation to
the international community. States must follow the practice because
they believe it is required by international law, not merely because
they think it is a good idea, or politically useful, or otherwise
desirable. The definition of customary international law is nuanced
because not all states are equal when considering whether a state's
practice and opinio juris sive necessitatis reaches the level of
customary international law. See United States v. Bellaizac-Hurtado,
700 F.3d 1245, 1252 (11th Cir. 2012). In the case of the Outer Space
Treaty, there is an argument since the provisions of the Treaty have
been adhered to for nearly half a century they have already entered the
realm of custom.
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A decision to withdraw would invite substantial resistance not only
from the geopolitical community but from domestic political arena as
well most notably from the Senate, especially in the current hyper-
partisan political atmosphere. Additionally, academia and other non-
governmental organizations that have a vested interest politically and
ideologically to maintain the Outer Space Treaty would push back with
the media likely creating narrative to provide pressure against a
withdrawal effort. Indeed, the deciding factor of a successful
withdrawal effort may lie with the political willingness to resist the
resulting international and domestic pressure sure to be applied.
Conclusion
Amending or withdrawing from the Outer Space Treaty would not be
easy nor should the decision to do so be trivialized. For such a
decision to be made, fundamental consideration must be given to whether
the status quo of the Outer Space Treaty is relevant to the growing
realities of the current geopolitical environment and whether it can be
stretched to meet the long-term demands of the private sector while at
the same time taking into consideration the national security interests
of the United States. The result of a decision to amend or withdraw
from the Outer Space Treaty lies in no small part as to whether we look
upon the Outer Space Treaty as a tool to meet a pragmatic geopolitical
end or revere it as an immutable geopolitical icon.
Respectively submitted,
Michael J. Listner.
______
Heinlein Prize Trust
May 22, 2017
Hon. Ted Cruz,
Hon. Edward J. Markey,
Commerce, Science, and Transportation Committee,
Space, Science, and Competitiveness Subcommittee,
United States Senate,
Washington, DC.
Dear Chairman Cruz and Ranking Member Markey:
The Heinlein Prize Trust honors the memory of renowned American
author Robert A. Heinlein and his wife, Virginia, by awarding prizes
for the advancement of commercial spaceflight and conducting a variety
of educational outreach activities. As its trustees, we write first to
thank you for your leadership in passing the Commercial Space Launch
Competitiveness Act, which promotes the development of commercial
spaceflight in the United States in a manner consistent with Robert
Heinlein's vision; and second to address issues related to the Outer
Space Treaty which you have raised in recent public comments and your
Subcommittee's hearing this month.
We recognize that the Outer Space Treaty was a Faustian compromise
with the USSR. It was an attempt to prevent an Evil Empire from gaining
an upper hand in the strategically vital realm of outer space, and as a
result it left on the bargaining table a wide range of opportunities
for the United States. That said, the treaty has proven that it can be
the foundation for productive international cooperation to explore and
develop outer space--and perhaps more importantly, it has not yet been
shown to impede the efforts of the United States or U.S. entities.
Of course, Congress and the Administration must remain vigilant to
prevent the Outer Space Treaty--or any international law--from being
used in a manner contrary to its original intent so that it binds the
United States in ways not accepted by our government at the time it was
signed and ratified. When international legal activists attempt to
assert that the United States has international responsibility for the
activities of nongovernmental actors as a result of the treaty, those
arguments should be refuted. Space should not be different from
aviation and admiralty in that respect.
To the extent that adjustments are needed, we strongly recommend
updating U.S. law rather than reopening the Outer Space Treaty wherever
possible. Fortunately, the terms of the Treaty are loose enough that
nations can define its application by adopting national laws
controlling national activities. The Commercial Space Launch
Competitiveness Act's provisions on property rights in space
resources--by our estimation, the most sweeping legislative recognition
of property rights in human history--is an excellent example.
The Outer Space Treaty has worked well for 50 years. It is accepted
by more than 100 nations. Trying to change the Treaty now will create
significant risks of delay and confusion. Such risks should be avoided,
especially when the option of changes to national law exists.
Thank you again for your leadership on these matters. As Robert and
Virginia Heinlein saw so clearly, space is inherently multinational and
international. All countries are neighbors sharing an ``upper border,''
outer space. History teaches us that nations flourish as neighbors when
there is liberty and where commerce is managed with minimum regulation
within a framework of strong human rights. Space resources are
effectively infinite, thus cooperation in their use should benefit all
stakeholders much more than competition. The emergence of humanity into
the cosmos can be a non-zero sum adventure. All of humanity will win if
there is enough ordered liberty.
Sincerely,
Arthur M. Dula,
Trustee.
J. Buckner Hightower,
Trustee.
Senator Cruz. We will now turn to the first of two panels
that this committee will hear. The first panel--we have three
witnesses. I want to thank each of you for being here today.
Our first witness is Mr. James Dunstan, who is a Senior
Adjunct Fellow at Tech Freedom and the founder of Mobius Legal
Group. Mr. Dunstan has spent more than 33 years counseling
private businesses in all aspects of doing business in outer
space and has assisted Federal and state governments with space
law issues.
Our second witness is Ms. Laura Montgomery, who is the
proprietor of Ground Based Space Matters law offices and
publishes groundbasedspacematters.com. Ms. Montgomery works on
issues of regulatory space law with an emphasis on commercial
space transportation, human space flight, and the Outer Space
Treaty. Ms. Montgomery has spent over two decades with the
Federal Aviation Administration's Office of the Chief Counsel,
where she represented the FAA at the United Nations Legal
Subcommittee of the Committee on Peaceful Uses of Outer Space.
Our third witness is Mr. Matthew Schaefer, who is the
Veronica A. Haggart and Charles R. Work Professor of
International Trade Law and Co-Director of the Space, Cyber,
and Telecommunications Law Program at the University of
Nebraska College of Law. Mr. Schaefer has taught international
law, international business, and foreign relations-related
courses since 1995 and has directed the Space and Cyber Law
Program since its creation in 2006. Mr. Schaefer is also Co-
Chair of the American Branch of the International Law
Association's Space Law Committee, and I would like to note
that Mr. Schaefer previously served as the Director in the
International Economic Affairs Office of the National Security
Council at the White House in 1999.
Before we hear testimony from the witnesses, I want to
welcome and recognize the Ranking Member of the Full Committee,
Senator Nelson, who has a long and enduring issue on the topic
of space.
STATEMENT OF HON. BILL NELSON,
U.S. SENATOR FROM FLORIDA
Senator Nelson. Well, I am very, very pleased that we have
made the progress that we've made. The commercial space sector
has been truly outstanding in the accomplishments, and that's
exactly what was intended as we started some 7 years ago this
dual track, where we had a commercial space program that was
going on with regard to astronauts; a commercial space program
going to and from the International Space Station; and,
simultaneously, we have the NASA program to go out and explore
the cosmos.
And, of course, people don't realize it, but it's right
here. Within the next year and a half, both commercial rockets
with crew will launch, as will the largest rocket ever, the
SLS, with its spacecraft, Orion, on top. So, indeed, Mr.
Chairman, what's going to happen is the American people are
going to really get engaged again.
I want to add a word of caution, however, because the
budget that was just submitted by the President just today--it
would cut a half a billion dollars from NASA. There are some
positive elements, like full funding for the commercial crew,
and some not-so-positive elements, such as the cuts to Earth
science, to education, and to exploration. But the spending
plan simply does not go far enough for NASA or for various
space centers, including our space center, the Kennedy Center
in Florida.
As we have all said in the past, we're going to work
together on both sides of the aisle, and NASA is not partisan.
NASA is nonpartisan. We're going to work together to make sure
the agency gets what it needs so that we can keep building this
momentum. And, Mr. Chairman, we're going to Mars.
Senator Cruz. Amen and Hallelujah.
With that, Mr. Dunstan, you may start us off.
STATEMENT OF JAMES E. DUNSTAN, FOUNDER,
MOBIUS LEGAL GROUP, PLLC
Mr. Dunstan. Chairman Cruz, Ranking Members Markey and
Nelson, and members of the Subcommittee, thank you for the
opportunity to testify here today. I am truly an orphan of
Apollo. As children, my generation watched the Apollo
astronauts walk on the Moon. We were promised that if we
studied hard and ate our vegetables, we too could go into
space. Unfortunately, that didn't happen.
I was in law school when the space shuttle started to fly.
Again, we were promised flights every 2 weeks and that we'd be
able to fly experiments for as little as $10,000. None of that
happened, either. At its peak, the shuttle flew only nine times
in 1985, and any hope of conducting affordable commercial
activities aboard the shuttle died with the Challenger.
But space commerce has taken off anyway on private
vehicles. The industry now nears $350 billion annually in
revenue, mostly in commercial satellite services, and we're
seeing the dawn of a radical new generation of launch vehicles,
with fly back first boosters, and fly back second stages just
over the horizon. Launch costs may fall by an order of
magnitude.
Startups have raised real financing to do everything from
on-orbit servicing to asteroid mining. For these companies,
once esoteric provisions of the Outer Space Treaty could create
real business risks. It's time for Congress finally to address
the relationship between government and private sector under
Article VI of the Outer Space Treaty, something I assumed we
would have tackled imminently when I graduated from law school
almost 35 years ago.
Article VI makes each country responsible and liable for
the activities of its citizens and companies in space. The
Treaty also leaves up to each country to decide how to
authorize and supervise private activities. In other words,
Article VI is not self-executing in governing private citizens.
Just consider the Supreme Court case in Medellin v. Texas,
which Chairman Cruz argued as the Solicitor General for Texas.
Quoting Federalist Number 33, the court said that whether a
Treaty is self-executing means, ``comparing laws that
individuals are bound to observe as the supreme law of the land
versus a mere Treaty dependent on the good faith of the
parties.'' Article VI falls into this latter category. Thus,
even failing to adopt any regulation at all would not violate
the Outer Space Treaty, because there is the backstop of the
national liability for private citizen activities.
Federal law already authorizes Americans to operate in
outer space. Americans have inalienable rights to life,
liberty, and the pursuit of happiness, as the Declaration of
Independence puts it. The Tenth Amendment made this principle
binding constitutional law--the powers not delegated to the
United States by the Constitution, nor prohibited by it to the
states, are reserved to the States respectively, or to the
people. In short, absent a constitutionally consistent law
prohibiting innovative space activities, Americans are already
authorized to pursue those activities. In other words, that
which is not forbidden is permitted.
We do have laws and regulations, plenty of them, that
govern the activities of private citizens in space. Space
entrepreneurs need permission from multiple government
agencies. This includes the FAA AST for launch, FCC, NOAA,
NASA, and the DoD. Entities conducting launches have to answer
to both state and local authorities, everything from assessing
environmental impact of launches to obtaining permits to
transport their vehicles across state and county lines.
The problem isn't a regulatory vacuum, but a patchwork of
cumbersome, burdensome, and sometimes inconsistent regulations.
Congress should clean up this mess at the same time that it
addresses how to govern innovative space uses not clearly
governed by existing rules.
Precisely because the United States Constitution promises
me that I can go to outer space, and precisely because Article
VI is not self-executing, Congress is in a unique position
internationally to show the world that we recognize our
liability under Article VI and our obligation to ensure that
our private citizens abide by the self-executing provisions of
the OST, no nuclear weapons in space, no military bases on the
Moon or celestial bodies, and no appropriation of a celestial
body.
The United States can thus lead internationally by adopting
a sensible and non-burdensome regulatory regime to ensure
treaty compliance. This would put the rest of the world on
notice that countries that would offer flags of convenience for
outer space activities cannot dodge their liability
obligations. This would also promote the goal of Article I, the
peaceful exploration and use of outer space, while protecting
U.S. assets, both public and private, from irresponsible
foreign companies.
There is also nothing to be gained right now from reopening
the current Treaty regime. Once the United States demonstrates
a light-touch regime consistent with treaty requirements can
work, then reopening the treaties might make sense. But doing
so now would allow countries that aren't friendly to the United
States or American capitalism to layer on costly regulatory
burdens that the United States would have to reject as we
rejected similar provisions of the Moon Treaty.
My written testimony, co-authored by Berin Szoka, President
of TechFreedom, explores in greater depth the United States'
responsibilities under Article VI.
Thank you again for the opportunity to testify, and I look
forward to answering your questions.
[The prepared statement of Mr. Dunstan follows:]
Prepared Statement of James E. Dunstan & Berin Szoka
Congress took the first (and long-overdue) step toward recognizing
the rights of private citizens to explore and use the resources of
outer space in the Commercial Space Launch Competitiveness Act of 2015
(CSLCA). The next challenge is for Congress to address the so-called
``regulatory gap'' for innovative space activities beyond today's
established satellite and launch industries--such as asteroid and lunar
mining, on-orbit repair and construction, and private space habitats.
This implicates Article VI of the Outer Space Treaty (``OST''), which
requires that nations ``authorize'' and ``continually supervise'' the
activities of their citizens in outer space to ensure compliance with
overall treaty obligations. This does not mean, however, that the
United States must either (a) re-open the Treaty for negotiation or (b)
pass legislation to regulate private activities in space. This is
because:
The ``authorization'' and ``supervision'' components of
Article VI are subsidiary to the overall structure of Article
VI, which places both the responsibility and liability for
treaty violations and damages for space activities on the
Nation itself. A failure to either authorize or continually
supervise the activities of private nationals merely increases
the risk that a country might be liable for damages;
Article VI is not ``self-executing,'' meaning that the
authorization and supervision language is not the ``law of the
land'' in the United States, absent domestic legislation
implementing Article VI. The case of Medellin v. Texas makes a
clear distinction between treaty provisions that, by their
language and nature, become the ``law of the land'' in the
U.S., and those treaty provisions that require domestic
implementation to have the force of law;
The Tenth Amendment (echoing the Declaration of
Independence) provide the required ``authorization'' component
of Article VI for Americans;
Congress has the discretion, as a matter of both
international and American constitutional law, to decide how to
implement its Article VI responsibility to provide ``ongoing
supervision'' for private American actors in space;
There are plenty of supervisory regulations in place
already, many of which are overlapping, cumbersome, and
inconsistent;
The best way to protect American interests is for Congress
to enact a regulatory framework that takes the lightest touch
possible in order to satisfy our Treaty obligations while also
protecting both public and private American assets--by setting
precedent for other nations to follow in adopting their own
domestic legislation that will ensure that foreign private
companies also act responsibly in space; and
Reopening the international space law treaty regime would,
at least prior to the U.S. establishing its own domestic
regulatory regime (and perhaps also demonstrating that such a
regime can work), no doubt look much like the burdensome
provisions of the Moon Treaty, which the U.S. has previously
rejected.
Congress must also streamline and harmonize the patchwork
regulatory regime put into place in the 1980s and 1990s on the
assumption that there would be only a dozen or so commercial flights a
year that would carry no more than 20 payloads to space.
Congress' next steps after adoption of the CSLCA will chart the
course for space development for the next century. We call the
attention of the Committee to nine themes:
1. The So-called ``Regulatory Gap'' and Article VI of the OST
This hearing is focused on the impact of the Outer Space Treaty on
private activities in space. In Section 108 of the CSLCA, Congress
directed the White House to identify any regulatory gaps and suggest
ways of closing those gaps to ensure compliance with U.S. obligations
under the OST. The White House responded in April, 2016, with its
analysis that correctly noted that currently no Federal agency
regulates such ``innovative space activities'' such as asteroid mining
and commercial lunar landings.\1\ The White House suggested a ``Mission
Authorization'' approach, with the FAA/AST taking the lead role in an
inter-agency review of applications for missions that don't squarely
fall into the regulatory jurisdiction of any current agency (FAA/AST
for launches, FCC for frequency, NOAA for remote sensing, NASA for
NASA-backed payloads and DoD for DoD payloads).
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\1\ The OSTP report is available at: https://
obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/
csla_report_-4-16_final.pdf (last checked, May 18, 2017).
---------------------------------------------------------------------------
The White House report notes, correctly, that some planned missions
involve activity that is not currently regulated and then concludes,
incorrectly, that the U.S. is not meeting its obligations under Article
VI. But Article VI does not, in and of itself, require any specific
form of authorization and supervision--or that, in the absence of such,
non-governmental activities are prohibited. Consider Article VI in its
entirety:
States Parties to the Treaty shall bear international
responsibility for national activities in outer space,
including the Moon and other celestial bodies, whether such
activities are carried on by governmental agencies or by non-
governmental entities, and for assuring that national
activities are carried out in conformity with the provisions
set forth in the present Treaty. The activities of non-
governmental entities in outer space, including the Moon and
other celestial bodies, shall require authorization and
continuing supervision by the appropriate State Party to the
Treaty. When activities are carried on in outer space,
including the Moon and other celestial bodies, by an
international organization, responsibility for compliance with
this Treaty shall be borne both by the international
organization and by the States Parties to the Treaty
participating in such organization.
Thus, Article VI places the responsibility and liability for breach
of the clear prohibitions contained in the OST on the launching state.
These prohibitive provisions are:
1. No placing of nuclear weapons or weapons of mass destruction in
outer space (Article IV);
2. No establishing military bases on the Moon or other celestial
bodies (Article IV);
3. Space and celestial bodies are not subject to claims of
appropriation by means of use or occupation (Article II);
4. Avoiding harmful contamination (Article IX); and
5. Avoiding harmful interference (Article IX).
There is a strong argument that the last two prohibitions are not
self-executing (see discussion below), but for the sake of this
argument, we assume that they are.
2. Article VI Allows Congress to Choose How to Authorize and Supervise
the Activities of American Companies
While Article VI requires each nation to ``authorize'' and
``continually supervise'' the activities of its citizens, the extent of
such oversight only extends to compliance with the self-executing
Treaty provisions (i.e., that its citizens don't place a WMD in space,
make a real property claim on a Celestial Body, or attempt to construct
a military base). Article VI says that countries must assure that
``activities are carried out in conformity with the provisions set
forth in the present Treaty.''
How a country chooses to assure that its citizens do not violate
these provisions is completely up to that country. Since Articles VI
and VII (making countries liable for damages that are caused by their
own activities or those of their nationals) place liability for any
activities of citizens clearly upon the launching state, the amount of
supervision a country wishes to place is, in terms of treaty
interpretation, completely up to the country, depending upon the risk
the country wishes to assume. Countries fearing that the activities of
their citizens could result in international liability may choose to
heavily ``supervise'' (through highly proscriptive ex ante regulation)
the space activities of their citizens--up to, and including,
prohibiting private space activities entirely. But countries that
conclude that the benefits of innovative space activities outweigh the
liability risks may consider a lighter ``regulatory touch,'' all the
way to becoming a ``flag of convenience'' with no supervision
whatsoever. A lack of supervision is not, in and of itself, a violation
of international law; it merely raises the chances that a non-
governmental activity might run afoul of the OST prohibitions and that
the country responsible be held liable for consequential damages
because that country's citizens seek to engage in a behavior that is a
per se violation of the OST, or creates a probability that those
activities will interfere with the activities of another space activity
resulting in harm (e.g., orbital collision or frequency interference).
Congress now has the opportunity to decide where on that continuum of
regulation it wishes to place the United States.
3. Article VI is Not Self-Executing
In legal terms, this means that Article VI is not self-executing:
it requires domestic legislation in order to be enforceable in U.S.
courts. Medellin v. Texas¸ 552 U.S. 491 (2008). The distinction
between a treaty provision that represents an international commitment
versus a treaty provision that sets forth specific international law
that becomes the ``law of the land'' is a cornerstone of U.S.
constitutional law and was discussed in the Federalist Papers, No. 33,
``comparing laws that individuals are `bound to observe' as `the
supreme law of the land' with `a mere treaty, dependent on the good
faith of the parties.' '' Medellin, 552 U.S. at 499. While there are
clear prohibitions contained in the Outer Space Treaty which are self-
executing, the remaining provisions of the OST are aspirational and
advisory, leaving the specific implementation of those concepts up to
individual nations. Like the legal issue (consular notification rights
of criminal defendants) in the convention at issue in Medellin (the
Vienna Convention on Consular Relations), the Article VI falls into
this latter category of non-self-executing provisions of the OST.
4. The United States has already Authorized Innovative Space Activities
The White House Section 108 Report also ignores the fact that in
the United States, innovative outer space activities are already
authorized. That authorization predates the space era by nearly 200
years. As Americans, we declared in 1776 that ``[w]e hold these truths
to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness.'' The Tenth
Amendment to the U.S. Constitution carries through this concept when it
states that ``[t]he powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the
States respectively, or to the people.'' In short, absent a
constitutionally consistent law prohibiting ``innovative space
activities,'' Americans are authorized to pursue those activities. In
other words, that which is not forbidden is permitted.
5. Adopting a Complete Laissez-Faire ``Flag of Convenience'' Regime
Would Clearly Not Be in the Interests of the United States
As noted above, because Articles VI and VII of the OST ultimately
place liability on the launching state, how the U.S. chooses to
``continually supervise'' the activities of its citizens in space is a
matter of risk assessment. Nonetheless, strong policy reasons (besides
the potential liability of the U.S. Government, and therefore, the U.S.
taxpayer) exist as to why the United States should not abdicate all
regulatory authority over the activities of its citizens in space. On
two of the Treaty's five principal requirements--the three bright-line
rules--the foreign policy interests of the United States should be
rather obvious: We absolutely do not want China or Russia or any other
power (1) placing nuclear weapons or weapons of mass destruction in
outer space (Article IV), (2) establishing military bases on the Moon
or other celestial bodies (Article IV), or (3) placing an object on a
strategic place and then claiming an absolute, permanent property right
on that place (rather than a non-interference zone around ongoing
activity). We cannot insist through diplomatic consultation that China
or Russia screen their companies' (including state-controlled
enterprises) planned missions to ensure compliance with these
prohibitions without having a clear mechanism for doing the same
ourselves.
Nor can we, without our own system of appropriation
``supervision,'' protect the rights of American public and private
actors under the other two principal requirements of Article VI:
1. Avoiding harmful contamination (Article IX); and
2. Avoiding harmful interference (Article IX).
It is not difficult to see how American companies and government
actors (both NASA and military/intelligence) could suffer at the hands
of foreign companies that push the envelope on these two principles to
elevate them into a quasi-claim of appropriation--nor why American
companies and government actors would benefit from establishing both
more specific standards and dispute resolution mechanisms on all three
counts. While relying on international treaty making to tackle these
highly fact and science-specific problems, the U.S. can continue to
lead the way. The U.S. has done so on technical committees such as the
Inter-Agency Space Debris Coordination Committee (IADC), which helped
develop the orbital debris mitigation standards that were first adopted
by the United States, and are now quickly becoming customary
international law. Congress should task NASA and other expert agencies
to develop technical standards on use, collocation of multiple bases or
other uses (e.g., robotic mining or telescopes) on a celestial body,
and ways to mitigate interference among multiple users, such as between
two groups extracting minerals in adjacent areas or between a mining
operation (which produces dust) and a telescope (which might be subject
to interference from dust). Such standards could help to avoid disputes
in the first place, just as coordination minimizes disputes among
spectrum users, while also providing standards for resolving disputes
when they do happen.
Ultimately, such standards--and the adjudicatory mechanisms through
which technical standards evolve into legal standards, and change over
time--will be of greatest benefit to American companies (and government
actors) when they address not only disputes with other American
entities, but also with foreign entities. While it is theoretically
possible to have two systems operating side by side--one for
interactions among U.S. parties and one for interactions among U.S. and
foreign parties--the difficulty inherent in such separate systems, and
the advantages of having, to the greatest extent possible, a harmonized
system for both, would be considerable.
One thing is certain: whatever the United States does will set
precedent for the rest of the world, as we did with the issue of
orbital debris mitigation. For these reasons, the U.S. should continue
to lead the international community in exploring and adopting standards
for non-interference as well as the other prohibitions contained in the
OST--if for no other reason than to set the precedent in the
international community that the clear prohibitions contained in the
OST must be enforced by all nations on all citizens of the world. In
other words, ensuring some effective scrutiny over U.S. companies'
activities will, to the extent that other nations follow suit, protect
U.S. actors, both public and private alike, from irresponsible foreign
actors.
Rather than merely hoping that other countries will follow our
lead, the United States should give other countries an incentive to
enact domestic legislation that offers equivalent protections to that
of the U.S.--especially in the standards and mechanisms for resolving
interference disputes between U.S. parties and parties of that country.
There is already a directly applicable model for this in the U.S. Code.
The Deep Seabed Mineral Resources Act of 1979 was passed as an
alternative to the socialist and impractical resource appropriation
provisions of the Law of the Sea Treaty, as it was then drafted (and
under discussion). Rather than negotiate a new treaty, the U.S. law
simply and elegantly allows the recognition of exclusive mining claims
issued by other countries that will also recognize U.S. claims through
``compatible'' legislation.\2\ This model could easily be incorporated
into U.S. law, avoiding the need for negotiating revisions to the Outer
Space Treaty or even a new multilateral framework such as a convention.
---------------------------------------------------------------------------
\2\ 30 U.S.C. Sec. 1428.
---------------------------------------------------------------------------
6. Amending the OST or Entering New Treaty Negotiations at this Time is
Not in the Interest of the United States
Precisely because the ``authorization'' and ``supervision''
provisions of Article VI are aspirational and not self-executing, and
because the U.S. Constitution gives Congress the ability to craft
domestic legislation that implements Article VI in a way that is both
consistent with the core provisions of the OST and Congress' desire to
promote rather than stifle free enterprise in space, Congress should
not suggest to the Administration or the State Department that the U.S.
should begin discussions in the international community about amending
the OST or augmenting Article VI with a new treaty (such as was done to
flesh out the liability provisions of OST Article VII into the 1972
Liability Convention). The result of such efforts would inevitably be a
treaty that the United States would not be able to ratify, because it
would either (a) contain specific regulatory provisions akin to those
adopted in the Moon Treaty that would be antithetical to U.S. economic
interests, or (b) provide international lawyers a way to close the
``Medellin loophole'' by specifically stating that the requirement that
countries supervise and authorize the activities of their citizens is
self-executing--by adopting language specifying what that regulatory
regime must look like.
Either way, the United States would lose the flexibility it now
enjoys, which provides it with a unique opportunity to establish
domestic law in the United States that is both consistent with Article
VI, yet still provides U.S. citizens with a light regulatory approach
that encourages innovation and investment in new outer space
activities. Most of all, that flexibility means that U.S. policymakers
can design a regime that will heavily influence what other countries
do, and the concomitant evolution of international law through new
conventions (such as those on registration, liability, rescue and
return) or through customary international law.
In short, nothing good can come from diving down the ``rabbit
hole'' of treaty (re)making at this stage. In the future, after the
U.S. has shown its world leadership by establishing a domestic
regulatory approach that encourages private sector advancement into
space while protecting the core values of the OST, then the U.S. will
be able to negotiate a future treaty from a position of strength, as by
that time U.S. entrepreneurs will already have established themselves
as the ``first movers'' in a huge new economic arena and U.S. domestic
law will have shown itself to work, not just for American companies,
but also for foreign companies that interact with American companies in
space, or that choose to launch out of the U.S. to take advantage of
American domestic space law.
7. Understanding the Depth and Breadth of Current Space Regulation
At a recent House hearing,\3\ most of the questions asked of the
panelists involved issues of space traffic management and orbital
debris. It was frustrating that the expert panel did not forcefully
respond that every scenario raised in questions is already covered by
multiple agencies and multiple sets of regulations.
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\3\ ``Regulating Space: Innovation, Liberty, and International
Obligations,'' March 8, 2017.
1. If one launches a payload into LEO, FAA/AST regulations require
full information about orbital parameters, and the launching
party must demonstrate that its orbital choice will not
conflict with other users (14 C.F.R. Sec. 415.35), as well as
demonstrate that it has complied with orbital debris mitigation
standards for ``safeing'' upper stages and disposal at payload
---------------------------------------------------------------------------
end of life (14 C.F.R. Sec. 417.129).
2. The FCC has similar, yet separately enforced, regulations for
anyone seeking a license to communicate with a vehicle or
payload (47 C.F.R. Sec. 25.114(d)(14)).\4\
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\4\ Examples abound of how the current space regulations are rooted
in the 1980s. The FCC assumes that all satellite are multi-million
dollar payloads that take many years to build and launch. See
Comprehensive Review of Licensing and Operating Rules for Satellite
Services, FCC 15-167, 30 FCC Rcd 14713, 14736 (December 17, 2015)
(``Satellite Services Rules Update Order''). The FCC rules further
require the procurement of multi-million dollar bonds (to minimize the
warehousing of orbital slots), 47 C.F.R. Sec. 25.165. The application
fees for satellites are extremely high (See Amendment of the Schedule
of Application Fees Set Forth in Sections 1.1102 through 1.1109 of the
Commission's Rules, Order, GEN Docket No. 86-285, 29 FCC Rcd 3276,
3276, 2 (2014) ($129,645.00 application fee per GEO satellite,
$446,500.00 application fee per non-GEO (``NGSO'') satellite or
constellation). Each year satellite operators also have to pay a
regulatory fee to the FCC of $138,475.00 for GEO satellites, and
$141,950.00 for NGSO satellite or constellations. Current processing
times for remote sensing licenses from NOAA are more than a year.
Further, the regulations adopted even as late as 2006 anticipated the
placement of a few very large satellites (e.g., LandSat and its
progeny), and require NOAA to physically visit the downlink sites on an
annual basis to ensure that they are operated properly. See http://
www.nesdis.noaa.gov/CRSRA/files/
noaa_commercial_remote_sensing_regulatory_affairs_06302015.pdf. This
NOAA presentation noted that between 1996 and 2010, a total of 26
licenses were issued (less than two per year). As of October 1, 2010,
there were a total of six (6) remote sensing satellites in orbit.
Between 2010 and 2015, 46 licenses were issued (8 per year). As of
June, 2015, 11 applications were in process and 22 other entities
informed that they were required to apply for licenses. There are now
over 100 remote sensing satellites on orbit.
3. NOAA, likewise, has rules for those seeking a license for remote
---------------------------------------------------------------------------
sensing of the Earth (15 C.F.R. Part 960, Appendix 1: C).
4. NASA also has orbital debris and other orbital restrictions (vis-
a-vis the ISS) that must be satisfied for any NASA-sponsored
mission (NASA-STD-8719.14A (74 pages), which puts into effect
NASA Procedural Requirement 8715.6, and includes reference to
NASA-Handbook (NASA-HDBK) 8719.14).
So if a company is using a U.S. commercial vehicle to launch a
remote sensing satellite that will download data to Earth and is
somehow supported by a NASA contract, it must demonstrate compliance
with the orbital interference and debris rules of four separate Federal
agencies.\5\ Worse yet, if any of those agencies determines that the
debris mitigation statement is insufficient, the company would have to
amend its statement to all four agencies, triggering another round of
bureaucratic review and (potentially), a near-endless series of reviews
and revisions to each of its requests for authorization. This back-and-
forth will become significantly more problematic with higher launch
volumes.
---------------------------------------------------------------------------
\5\ The DOD has its own set of regulations for military launches.
---------------------------------------------------------------------------
The problem, then, is not a ``regulatory gap'' for current space
activities, but rather a patchwork regulatory system that is complex,
non-transparent, and extremely expensive to navigate. Before we start
overlaying a whole new ``Mission Authorization'' regulatory regime on
innovative space activities, we must first streamline the existing
regime to reduce cost, redundancy, and most of all, opaqueness, where
bureaucrats can still pick winners and losers with impunity. Cleaning
up a bloated regulatory regime will provide far more clarity to the
space industry than the establishment of an entirely new ``black box''
into which one drops applications, and crosses fingers that it won't be
vetoed, without explanation, by one of several unaccountable agencies.
Ideally, Congress should clean up the mess of current Federal licensing
at the same time that it implements any new regime to address its
Article VI responsibilities.
8. The ``Mission Authorization'' Approach Proposed by the Obama
Administration is a Continuation of a ``Black Box'' Policy of
the Federal Government Picking Winners and Losers
Is there an optimal domestic regulatory regime for regulating
``innovative space activities?'' If there is, it certainly is not the
``Mission Authorization'' regime set forth in the White House Report
under Section 108. Under OSTP's ``Mission Authorization'' approach, an
inter-agency review process would be established for initial
authorization. As proposed, the process lacks any transparency. There
is no requirement governing application processing times, no standards
against which approval or disapproval are measured, no requirement for
a full (or written) explanation of reasons for denial, and no appeals
process. In short, the proposed review process looks uncannily like the
State Department's International Traffic in Arms Regulations (ITAR)
regime. That process has been abused by different governmental agencies
countless times since it was imposed, resulting in the near death of
the United States satellite building industry. It appears that, under
the Administration's Mission Authorization proposal, as in the ITAR,
powerful governmental players on the inter-agency review team would
each have an independent veto on an authorization request. Most likely,
the applicant would never find out who ``blackballed'' the mission, or
why.
If a regulatory regime is adopted for mission authorizations that
mirrors, or even remotely resembles, the ITAR regime, Congress will
have failed to execute our Treaty obligations in a way that promotes
the ``exploration and use'' of space--the overarching goal of the
Treaty (Article II)--and commercial entities will flee the United
States to jurisdictions that treat their citizens in a fairer manner,
just as satellite manufacturers fled the U.S. To avoid repeating the
mistakes of the ITAR regime, Congress must ensure that:
1) The lead agency in the inter-agency process must have the clout
to push back against other agencies seeking to thwart private
enterprise for their own reasons, which may have little to do
with U.S. national interests--and, indeed, may actively
frustrate them (such as by strangling American industry). FAA/
AST, as currently constituted, clearly lacks such clout.
2) Clear processing guidelines must keep agencies from blackballing
projects on a whim. This will take a significant amount of
expertise that is lacking even within FAA/AST. While that
office has engineers capable of analyzing launch and reentry
risks, it is ill-equipped to analyze, for example, whether
Company B can mine an asteroid after Company A has already
received authorization for such activities, or to determine how
close Company B can land to Company A's lander on the Moon. In
short, ``non-interference'' analyses will need to be conducted,
which FAA/ATS does not have the expertise to do. Agencies that
do have that expertise might have also an interest in
conducting similar missions, giving them perverse incentives
that could call into question the integrity of their analyses.
3) The process must be transparent. Applicants must be able to find
out where in the process they are, what agencies might have
questions about the mission, and when a decision will be
rendered.
4) Any denial must come with a fully reasoned decision, so that
rejected registrants know what they must do to amend their
registration before resubmitting it. The ability to reject
registrations without such explanations will effectively
convert a mission registration regime into a mission
authorization regime by giving unchecked discretion--veto
rights, in fact--to, potentially, each of the reviewing
agencies.
5) There must be an appeal process, whereby an applicant can
challenge that decision in court. In short, the Administrative
Procedures Act must apply to this process, rather than the
``black box'' that characterizes the ITAR process.
While it is theoretically possible to write legislation that would
cover all of these ``sins,'' we have no doubt but that bureaucrats,
attempting to protect their own ``turf,'' could find other ways of
denying or slowing down a private sector company's attempt to conduct
innovative space activities that might compete with a government
program that is seeking billions of dollars of the Federal budget. The
statement at the Hearing that ``national security interests will always
trump commercial interests'' gives us pause as to whether any regime
with a ``veto power'' will actually promote commercial innovative uses
of space.
9. A ``Mission Registration'' Approach Will Spur Investment in the
Space Economy While Still Allowing the U.S. to Prohibit
Activities That
Violate the OST or Articulated U.S. National Security Interests
Instead of ``Mission Authorization,'' we propose a minimal
``Mission Registration'' approach. The essential difference is where
the presumption lies.
We suggest allowing any U.S. entity planning to conduct a mission
to register with a government entity, and provide full disclosure of
the mission scenario. They would also have to demonstrate that the
mission would not violate any of the OST prohibitions outlined above
and defined more specifically in the enabling legislation. They would
also demonstrate that the mission complies with orbital debris and
space traffic management requirements through either reference to an
FAA/AST, FCC, NOAA, or NASA authorization/approval, or through a
separate demonstration if none of those regime apply (which is highly
unlikely).
An interagency review would be conducted under a strict shot-clock
of 120 days; after that time, the mission would be deemed authorized,
unless the lead agency issued an appealable order, consistent with the
Administrative Procedure Act's ``arbitrary and capricious'' standard,
clearly identifying the grounds on which the registration was denied.
In other words, self-certification of compliance with the statute would
provide a presumption of compliance--a kind of safe harbor--but that
presumption could, of course, be rebutted by the agency or any private
party (domestic or, ideally, foreign as well) seeking to oppose the
proposed mission as inconsistent with the Treaty.
A registrant would be under an obligation to keep the registering
agency upraised of any changes to the mission, and the lead agency
could in the future, if it later deemed that the mission might violate
the OST prohibitions or other U.S. policy concerns, seek a court
injunction to revoke the registration, with the burden of proof or
revocation resting with the government agency.\6\
---------------------------------------------------------------------------
\6\ We believe that any revocation would need to be done at the
court level to assure an independent review of the revocation process.
Allowing an agency to revoke the authorization subject to court appeal
by the applicant would unfairly place the burden of proceeding and
burden of proof with the private entity, and not on the government
agency, where it belongs.
---------------------------------------------------------------------------
In order to meet U.S. obligations under OST Article IX not to
authorize missions that might cause harmful interference to the
activities of other ``State Parties'' or that might cause harmful
contamination of space or celestial bodies (which, again, could be
involve harm to future users, who may not yet be present to defend
their interests in the kind of adversarial process that could work for
harmful interference claims), we propose that the lead agency issue a
Public Notice indicating that the application for registration has been
filed and general information about mission type (e.g., on-orbit
satellite servicing, asteroid mining, etc.).\7\ Another country (but
not a foreign national) at that point could seek consultation with the
United States if it believed that a mission might violate Article IX.
The statute should be written such that other countries could not abuse
the consultation process by objecting to each registration as a way of
either slowing down U.S. interests, or gaining valuable proprietary
information concerning the nature of the mission, or the technology
involved.
---------------------------------------------------------------------------
\7\ A fuller registration of the payload would be made prior to
launch consistent with the obligations of the Registration Convention.
---------------------------------------------------------------------------
The practical problem with the U.S. taking the ``high road'' of
notifying the world community in advance of planned missions, however,
is that it might prompt other nations to create ``paper missions'' \8\
to stake out coveted locations in the solar system. A country, for
example, could authorize a mission to land near Shackleton crater on
the Moon and then claim a large non-interference zone around the
landing site that would effectively preclude other operations nearby.
Such a claim would likely violate Article II's prohibition on
territorial appropriation, both because it is not based on actual,
ongoing use, but future, hypothetical use. Nonetheless, to avoid tying
up American companies in dilatory international consultations under
Article VI, any ``prior notice'' regime should come with strict
milestones to demonstrate to the international community that such
authorizations are legitimate. In that way, the United States can
demand similar regimes from foreign governments in order to acknowledge
any Article IX non-interference rights of their citizens. Again, this
kind of coordination should be central to the concept of reciprocal,
interlocking legislation proposed above in the model of the Deep Seabed
Hard Mineral Resources Act.
---------------------------------------------------------------------------
\8\ The International Telecommunication Union (ITU) and state
regulatory bodies such as the FCC have long dealt with attempts to
warehouse valuable orbital locations (especially within the
geostationary orbit), through the filing of ``paper satellite''
applications--applications to provide service by entities clearly
technically or financially unable to launch a satellite within the
timeframes specified in those applications. This has led, on the U.S.
side, to the implementation of very strict construction and launch
milestones.
---------------------------------------------------------------------------
A private party would be left with the ability to seek an
injunction against another party it believed might cause harmful
interference to its activities using traditional common law tort
theories. As much as any particular private U.S. company might like to
have the weight of the U.S. Government behind it to enforce its rights
to a particular mission, such a heavy-handed approach (empowering the
government to pick winners and losers) would be costly for the
government to engage in, and simply not necessary given the well-
established field of tort law. At most, Congress could consider
requiring arbitration or other alternative dispute resolution platform
in the statute for all cases arising under a Mission Registration
regime. Ideally, the same common law developed between U.S. parties
should be applicable in disputes between U.S. and foreign parties. For
the concept of interlocking, reciprocal domestic legislation to work,
the U.S. common law must be firmly grounded in Article IX's prohibition
against harmful interference, while also taking care not to violate
Article II's prohibition on territorial appropriation.
This is, of course, only the beginning of the issues that will
ultimately need to addressed to ensure that American law provides a
sound foundation for American activities in space of all kind:
governmental, business and scientific/not-for-profit. Congress will
also have to address difficult questions, especially around harmful
contamination and spectrum usage. But not all these issues need to be
addressed now, at this hearing, or in legislation that Congress might
pass this year.
We look forward to assisting explore these additional questions in
the future, and look forward to being of assistance to your committee
in any way we can.
Respectfully,
James E. Dunstan, Senior Adjunct Fellow, TechFreedom \9\
---------------------------------------------------------------------------
\9\ Jim Dunstan is a Senior Adjunct Fellow of TechFreedom and the
founder of Mobius Legal Group, PLLC where he has spent more than 33
years representing companies in the outer space, telecommunications,
and high technology sector. He can be reached at jdunstan
@mobiuslegal.com.
---------------------------------------------------------------------------
Berin Szoka, President, TechFreedom \10\
---------------------------------------------------------------------------
\10\ Berin Szoka is President of TechFreedom, a nonprofit,
nonpartisan technology policy think tank. He can be reached at
[email protected].
Senator Cruz. Thank you, Mr. Dunstan.
Ms. Montgomery.
STATEMENT OF LAURA MONTGOMERY, ATTORNEY AND PROPRIETOR, GROUND
BASED SPACE MATTERS, LLC
Ms. Montgomery. Thank you. Chairman Cruz, Ranking Member
Markey, and members of the Subcommittee, thank you for inviting
me to address the role the Outer Space Treaty may play in the
regulatory responsibilities of the United States.
This country has the opportunity to interpret the Treaty in
two ways: as conducive to private activity, or so that it
creates barriers. A close reading of the text shows that the
Treaty actually allows a lighter regulatory hand than many
claim, both in terms of the authorization and supervision
provisions of Article VI and the harmful contamination
provisions of Article IX. If the United States pursues an
interpretation that closely aligns with the text, there may be
no need to seek changes.
I respectfully recommend that the United States understand
that it need not regulate new commercial space activities, such
as lunar habitats, mining, or lunar beer brewing, for the wrong
reason, namely, the belief that Article VI makes the United
States regulate either any particular activity or all
activities of United States citizens in outer space. A
misunderstanding of the treaty looms as possible regulatory
drag, because many, including agencies in the Executive Branch,
claim Article VI prohibits operations in outer space unless the
government authorizes and supervises those activities.
The U.S. Government should not interpret this as forbidding
unauthorized private space activity for three reasons. First,
the Treaty does not forbid private operators from operating in
outer space. Second, it does not say that either all or any
particular activity must be authorized, leaving decisions
regarding what activities require regulation to the member
states. If Article VI truly meant that all activities had to be
overseen, where would oversight stop? Life is full of
activities, from brushing one's teeth to playing a musical
instrument, which take place now with neither Federal
authorization nor Federal supervision. Just because those
activities take place in outer space does not have to mean that
they should suddenly require oversight.
And, finally, Article VI is not, under U.S. law, self-
executing, which means that it does not create an obligation or
a prohibition on the private sector unless and until Congress
says it does. So concerns over regulatory risks are artificial
and may be set aside. Because Article VI is not self-executing,
it is not enforceable Federal law until Congress acts.
Just as the Supreme Court said in Medellin v. Texas, when
the court did not let the President enforce a ruling of the
International Court of Justice against the states because
Congress had yet to act, Article VI's call for oversight
requires legislation with all its attendant policy choices.
Accordingly, regulatory agencies should not attempt to enforce
this treaty provision by either denying licenses or payload
authorizations or by attempting to regulate that which they
have no jurisdiction over. Nor should Congress pass a law so
broadly worded as to encompass all activities that could take
place in outer space. The Supreme Court, in criminal and First
Amendment cases, says that laws should be drafted so that
persons of ordinary intelligence can tell what is forbidden and
what is required, and that would be a good model to follow here
if Congress takes that path.
Article IX of the Treaty offers another source of concern,
but it doesn't have to. Article IX provides that states'
parties to the treaty shall avoid harmful contamination of
outer space and adverse changes in the environment of Earth.
This provision does not, in other words, apply to private
actors. The United States is thus not legally obligated to
impose this requirement on the private sector.
Even if Congress were to decide that private activity had
progressed to the point where harmful contamination had become
a concern, Congress would have policy decisions to make,
including whether current government guidelines should stand in
the way of human settlement in outer space and on the Moon and
other planets. Because the harmful contamination provision is
neither applicable nor self-executing, regulatory agencies
should not attempt to enforce it until and unless Congress
directs them to do so.
In order to put to bed the regulatory uncertainty arising
out of any misunderstandings of the treaty, Congress could take
a number of approaches. The most certain and long-lasting,
however, and the one that would reduce the opportunities for
confusion, misunderstanding, and regulatory overreach would be
for Congress to prohibit any regulatory agency from denying a
U.S. entity the ability to operate on the basis of inapplicable
or non-self-executing provisions of the Outer Space Treaty,
including Articles VI and IX.
Thank you for the opportunity to testify today.
[The prepared statement of Ms. Montgomery follows:]
Prepared Statement of Laura Montgomery, Ground Based Space Matters
Chairman Cruz, Ranking Member Markey, Chairman Thune, Ranking
Member Nelson, and Members of the Subcommittee, thank you for inviting
me to participate in this important discussion and to address the role
the Outer Space Treaty should play in the regulatory responsibilities
of the United States. This country has the opportunity to interpret the
Outer Space Treaty in two ways: as conducive to private activity or so
that it creates barriers. A close reading of the text shows that the
treaty actually allows a lighter regulatory hand than many claim, both
in terms of the authorization and supervision requirements of Article
VI and in terms of the harmful contamination provisions of Article IX.
As someone who hopes to see people beyond Low Earth Orbit again in
my lifetime, and who hopes to see commercial space operations other
than launches, reentries, and communications satellites, I respectfully
recommend that the United States not regulate new, commercial space
activities such as lunar habitats, mining, satellite servicing, or
lunar beer brewing for the wrong reason: the belief that Article VI
makes the United States regulate either any particular activity or all
activities of U.S. citizens in outer space. Regulations already cost
American industry, the economy, and the ultimate consumer upwards of
four trillion dollars, according to recent research from the Mercatus
Center,\1\ so we should think carefully before creating more drag on
the space sector.
---------------------------------------------------------------------------
\1\ Bentley Coffey, Patrick McLaughlin, and Pietro Peretto, ``The
Cumulative Cost of Regulations'' (Mercatus Working Paper, Mercatus
Center at George Mason University, Arlington, VA, 2016).
---------------------------------------------------------------------------
A misunderstanding of the Outer Space Treaty looms as possible
regulatory drag because many, including agencies in the Executive
Branch, claim Article VI of the treaty prohibits operations in outer
space unless the government authorizes and supervises--which I'll refer
to as ``oversees'' or ``regulates''--those activities. Although Article
VI states that ``[t]he activities of non-governmental entities in outer
space, including the moon and other celestial bodies, shall require
authorization and continuing supervision by the appropriate State Party
to the Treaty,'' the U.S. Government should not interpret this as
forbidding unauthorized, private space activity for three reasons. The
treaty does not forbid private operators from operating in outer space.
It does not say that either all or any particular activity must be
authorized, leaving decisions regarding what activities require
regulation to the member states. And, finally, Article VI is not, under
U.S. law, self-executing, which means that it does not create an
obligation or a prohibition on the private sector unless Congress says
it does.
I will also address Article IX of the Outer Space Treaty and its
admonition that States Parties to the treaty avoid harmful
contamination of outer space and adverse changes in the environment of
Earth. This provision does not, on its face, apply to private actors.
It is thus not an obligation on the United States to impose this
requirement on the private sector. Even if Congress were to decide that
private activity has progressed to the point where contamination has
become a concern, Congress would have a number of policy decisions to
make, including whether current views on harmful contamination, which
might keep space a scientific preserve, should stand in the way of
human activity in outer space. Because the harmful contamination
provision is neither applicable nor self-executing, the regulatory
agencies should not attempt to enforce it until and unless Congress
directs them to do so legislatively.
In order to put to bed the regulatory uncertainty arising out of
any misunderstandings, Congress could take a number of different
approaches. The most certain and long-lasting approach, however, and
the one that would reduce the opportunities for confusion,
misunderstanding, and regulatory overreach, would be for Congress to
prohibit any regulatory agency from denying a U.S. entity the ability
to operate in outer space on the basis of inapplicable or non-self-
executing provisions of the Outer Space Treaty, including Articles VI
and IX.
I. The Treaty Does Not Forbid Private Space Activity, but Leaves it to
Each Country to Decide What Activities to Regulate and How to
Regulate Them
Article VI of the Outer Space Treaty states:
States Parties to the Treaty shall bear international
responsibility for national activities in outer space,
including the moon and other celestial bodies, whether such
activities are carried on by governmental agencies or by non-
governmental entities, and for assuring that national
activities are carried out in conformity with the provisions
set forth in the present Treaty. The activities of non-
governmental entities in outer space, including the moon and
other celestial bodies, shall require authorization and
continuing supervision by the appropriate State Party to the
Treaty.
The United States itself is in compliance with Article VI because
the treaty leaves the decisions about how to comply with its rather
ambiguous terms to each country. By its own terms, Article VI legally
does not and cannot prohibit space operations by the commercial sector.
Instead Article VI leaves it to each country to decide which particular
activities require regulation, how that regulation will be carried out,
and with how much supervision. Accordingly, if Congress hasn't said
that a certain activity, such as lunar harp playing, requires
authorization and continuing supervision then lunar harp playing does
not.
Article VI contains three relevant ambiguous terms that the
drafters have left to the different countries to define as they see
fit. The terms are ``authorization,'' ``continuing supervision,'' and
``activities.''
A. Authorization
Article VI says that a country must authorize its nationals'
activities. Each country has its own processes and terminology for how
it authorizes something. The United States alone authorizes regulated
activities by certificate, certification, approval, license,
registration, waiver, or exemption. In the United States, Congress
determines the nature of the authorization.
B. Continuing supervision
The signatories to the treaty are supposed to require continuing
supervision of their nationals. ``Continuing supervision'' is a matter
of frequency. Some agencies conduct annual inspections. Others oversee
regulated activities on a daily basis. Some only show up after an
accident. The frequency may not be the same, but the supervision may
still be called continuous. The nature of the supervision may differ
from country to country but all, regardless of frequency, could comply
with Article VI's call for continuing supervision.
C. Activities
Finally, and most importantly, the treaty leaves it to each country
to decide what activities require supervision and authorization. The
treaty does not say all activities require oversight. It does not say
which particular activity requires oversight. Rather, it leaves to each
country's policy makers the decision as to where to draw the line. And
draw lines they must, so as not to waste resources, unduly burden the
industry, or cause confusion. For the United States, the entity that
makes those determinations is the U.S. Congress, and the regulatory
agencies should wait for Congress to act.
Article VI is structured so that a country need not expend
resources regulating frivolous, mundane, or non-hazardous activities.
Each country may itself decide what activities require authorization
and supervision. Thus, if our decision makers haven't decided that a
particular activity needs authorization, that activity does not. If
Article VI truly meant that all activities had to be overseen, where
would oversight stop? Life is full of activities, from brushing one's
teeth to playing a musical instrument, which take place now without
either Federal authorization or continuing Federal supervision. Just
because those activities take place in outer space does not mean they
should suddenly require oversight.
As a matter of past practice, Congress has always identified what
activity it wanted regulated, and it has done so with the proper level
of specificity that due process considerations of notice and
transparency require. Congress required the Federal Communications
Commission to license satellite transmissions. It required the
Department of Transportation (DOT) to license the launch of launch
vehicles. Later, it required DOT and the Federal Aviation
Administration (FAA) to license the reentry of reentry vehicles as
well. Congress also mandated that the seemingly benign activity of
taking pictures of Earth--``remote sensing''--requires regulation, too.
The point is, each time Congress determined that something required
oversight, whether for reasons of safety, national security, or
interference, it identified the activity in question, and it did so
with sufficient clarity that persons of ordinary intelligence could
tell what was forbidden and what was required.
As a matter of policy, Congress may determine that there are good
reasons to expend government resources and taxpayer dollars on a
particular activity. Hypothetically, Congress could say that robotic
mining of rocks in space really far away does not require regulation
because no one lives on that rock, it has no visitors, and no one will
get hurt by it. Or, it could say that bringing all those platinum group
minerals back to Earth at once will wreak havoc on the economy and then
set up an agency to oversee pricing. Even if Congress ignored asteroid
mining, it might forbid the reentry of anything large enough to make a
crater the size of the Yucatan. There are a number of considerations
that may lead to legislation and regulatory oversight. But they are not
in Article VI.
Just as there are serious activities that someone may say require
oversight, there are a host of other activities that don't. One hears
no lamentations over the lack of authorization of space tourists. Yet
space tourists exist now. Lunar habitats and space mining do not.
In short, Article VI leaves at least three decisions to each
country that signed the Outer Space Treaty: What form should an
authorization to take? How frequent must the continuing supervision be?
And, what activities require any authorization at all? If Congress
doesn't think playing the harp in space requires authorization, then it
doesn't, the U.S. is still in compliance with Article VI, and the
Executive Branch should not attempt to stop the ``unauthorized''
harpist.
II. Article VI is not Self-Executing
If a treaty promises, implicitly or explicitly, that the
signatories shall enact legislation to implement the treaty, it
necessarily requires additional action by another branch of the
government than the Executive. In the United States, that other branch
is the U.S. Congress, and Article VI's call for supervision and
authorization requires the kind of policy decisions that are made by
our Congress.
As the Supreme Court noted in Medellin v Texas in 2008, ``not all
international law obligations automatically constitute binding Federal
law enforceable in United States courts.'' As far back as the early
19th century, in a case called Neilson v. Foster in which the Court
considered a treaty with language similar to that used in Article VI,
the Supreme Court said that Congress had to first enact legislation
before it could enforce the treaty because the text of the treaty
required additional legislative action. With its space legislation,
Congress has acted consistently with the Supreme Court's holdings. When
Congress decides that an activity requires regulation, it will pass a
law, and has done so for launch, reentry, remote sensing from space,
and satellite communications.
Because Article VI is not self-executing and thus not enforceable
Federal law, until Congress acts, regulatory agencies should not treat
Article VI as a barrier that applies to commercial actors or claim that
it prohibits all or any particular private activity. Indeed, given the
close textual analysis that the Supreme Court typically applies to
treaties, Article VI's potential obligation on the government does not,
even on its own terms, constitute a prohibition on the private sector.
III. Paths Forward
Purely as a legal matter, Article VI should not create a barrier to
private activity. However, should there be concerns that this view is
not shared by agencies of the Executive Branch, Congress has
legislative options at its disposal.
A. Legislation Could Clarify that the Executive Branch May Not Prohibit
a U.S.
National from Conducting an Activity in Space Unless Congress
Requires that Activity's Authorization and Continuing
Supervision
Legislation could clarify that regulatory agencies may not prohibit
a U.S. national from conducting an activity in space unless Congress
required Federal oversight. This would not be legally necessary,
strictly speaking, because this proposal merely reflects current law.
However, since the issue of what Article VI means has created legal and
regulatory uncertainty, Congress could lay that uncertainty to rest
with a directive to regulatory agencies to abstain from using the lack
of Federal oversight of a particular activity as a reason to deny a
payload review, a launch or reentry license, or authorization for
satellite transmissions or remote sensing.
There are clear advantages to this path. It would, of course,
create certainty, which is helpful to industry's quest for innovation
and investment. It would be long-lasting. Most importantly, this path
would ensure that before Congress required Federal oversight of another
activity in space, it would first determine whether a real need existed
for that oversight.
B. Let us Not Regulate Everyone for Everything Everywhere in Space
Congress should not require the authorization and supervision of
``all'' private activities in outer space by private U.S. nationals.
The Supreme Court, in criminal and First Amendment cases, has stated
that laws should be drafted so that persons of ordinary intelligence
can tell what is forbidden and what is required. Should Congress decide
to require regulation, it should avoid the proposals that would require
Federal oversight of ``all space activities.'' Language like that could
entrap people engaged in perfectly benign activities. They might
reasonably believe that something they do all the time on Earth was not
a ``space activity'' or ``operation of a space object'' subject to
regulation. What is forbidden or required should be clear and the
government must provide adequate notice of what has to be authorized.
Many activities in space shouldn't require regulation, just as many
activities we engage in on the ground don't. Just as there are
hazardous activities that may require oversight, there are a host of
other activities that don't. People will engage in activities that
might endanger themselves, their customers, or their neighbors, but
they will also perform more ordinary acts. A musician may decide to
play the harp on the Moon. The Internet tells us that a student group
plans a little lunar brewing of beer in the interests of science.
Rather than enacting overly broad legislation that transfers all of its
legislative powers to a regulatory agency, Congress could take the more
measured and transparent approach of deciding which activities require
oversight while acknowledging that not all of them do.
Indeed, without the clarity of identifying the activities that
require oversight, such a transfer of legislative power would only
prolong any regulatory uncertainty as industry faced the possibility of
having to obtain permission for every little activity proposed. The
impact of regulation on the private sector is real.
Typically, if an agency receives a very broad grant of authority
the agency will eventually construe that authority to its maximum
limits. Were Congress to require authorization and supervision of all
activities by U.S. entities in outer space, the incentives on and
responsibilities of regulators--such as making sure they don't miss
anything, making sure they don't allow something dangerous to happen,
and making sure they know what's going on--mean that the agencies will
attempt to oversee more than just those activities that are hazardous
to others or pose national security concerns. After all, an agency
can't figure out if these threats exist unless it finds out all--from
the trivial to the hazardous--that an operator plans. Inquiries will be
made.
The regulatory process balances a host of competing interests,
including transparency, fairness, legal sufficiency, and safety.
Unfortunately, these necessary considerations sacrifice efficiency and
flexibility. As a society, we consider that sacrifice worth it when an
activity jeopardizes other people. When an activity doesn't, we must
ask if the constraints serve a useful purpose. If Congress were to
decide, as it has in the past with respect to launch, reentry, remote
sensing, and satellite communications, that another space activity
required regulation, it should identify that activity specifically.
Space bakeries, on account of the threats posed by their ovens, might
require governmental oversight if there were other people nearby.
Robotic mining of asteroids millions of miles from human habitation
might not. Congress should not, however, interpret Article VI to
require the regulation of everything.
C. The FAA's Payload Review: Opportunity or Threat?
Does the FAA's statutory payload review authority allow the FAA to
provide a positive payload determination to an entity not otherwise
supervised by the Federal Government? Yes, it does. This answer may
not, however, be consistent with the view of everyone in the Executive
Branch because of Article VI's call for authorization and supervision.
When conducting a payload review, the FAA must do so consistent
with public health and safety, safety of property, national security,
and foreign policy interests. Thus we see that the FAA's foreign policy
authority allows the FAA to make its own determinations on foreign
policy. Its governing statute, the Commercial Space Launch Act,
requires the FAA to consult with the State Department on a matter
affecting foreign policy. The FAA has implemented this requirement \2\
in its regulations to state that it consults with the Department of
State on foreign policy issues for its payload reviews.
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\2\ The FAA could change its regulations so that it only consulted
on isolated questions rather than for each payload given how 51 U.S.C.
Sec. 50918 phrases the requirement.
---------------------------------------------------------------------------
Under the better and more legally sound interpretation of its
authority, the FAA could use its foreign policy powers to encourage,
facilitate and promote the space industry. For example, were a
prospective lunar harpist to seek a payload determination from the FAA,
the FAA would engage in its normal practice of inter-agency
consultation. The U.S. Department of State might raise concerns with
respect to the fact that Congress has not passed legislation to
regulate harp playing despite Article VI's proviso that all States
Parties to the treaty authorize and continuously supervise the acts of
their nationals in outer space. With its own foreign policy authority,
independent of that of the State Department, the FAA could determine
that because Article VI is not self-executing, until Congress acts, the
U.S. has not determined that playing the harp constitutes the type of
activity requiring oversight under the treaty. Having satisfied its
consultation obligations, the FAA could then issue a favorable payload
determination.
Conversely, relying on its foreign policy authority, the FAA could
worry that other countries might raise issues about Article VI
oversight of a lunar harpist and contemplate denying the harpist's
requested payload determination. Such a determination would, as noted,
run afoul of the fact that Congress has not determined that lunar harp
playing is the kind of activity that requires Federal oversight. The
FAA must make any policy determinations in accordance with U.S. law,
and a non-self-executing treaty is not, as noted by the Supreme Court's
Medellin opinion, binding Federal law. To treat it as such would raise
the question of whether the FAA was usurping Congress's legislative
role.
Lunar harp playing is a vaguely ludicrous example of an activity
that could take place extraterrestrially, but it makes the point that
the Outer Space Treaty left the determinations of what requires
authorization and continuing supervision to each signatory nation. If
Congress hasn't decided that lunar harpists or miners require oversight
for their respective activities, they don't and the regulatory agencies
should not attempt to stop these activities. The treaty does not say
which activities must be regulated, and in the United States that
determination lies with Congress. For the FAA to say that it had the
ability to make such determinations about a non-self-executing treaty
would be to say that it, rather than the legislative branch, could make
the legislative determination.
Accordingly, because of the FAA's foreign policy authority muddying
the waters over the FAA's responsibilities, the FAA's payload review
creates regulatory uncertainty for industry, and likely merits closer
Congressional scrutiny and possible revision.
D. Most Provisions of the Outer Space Treaty only Apply to Governmental
Activity in Space
The bulk of the Outer Space Treaty's requirements apply to ``States
Parties,'' and the United States should not interpret those provisions
as applying to private actors. For example, Article IV says that
``States Parties to the Treaty undertake not to place in orbit around
the Earth any objects carrying nuclear weapons or any other kinds of
weapons of mass destruction, . . .'' If Congress wanted to make sure
that this prohibition applied to private parties, Congress might
consider implementing legislation.
Another provision that calls out for Congressional clarification--
as well as a multitude of policy determinations--is whether the harmful
contaminations provisions (often referred to as the ``planetary
protection'' provisions) of Article IX apply to commercial operations.
Article IX states, in relevant part, that:
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.
Some, including regulatory agencies, claim that Article VI's
provision that States Parties to the treaty assure ``that national
activities are carried out in conformity with the provisions set forth
in the present Treaty'' means that commercial actors must abide today,
even absent legislation, by each provision in the treaty, even the
provisions that only apply to governments.
The first reason to question the applicability of the ``planetary
protection'' provision is that the treaty itself limits this
requirement, like many others, to ``States Parties.'' States Parties
are governments. When the drafters of the treaty intended a particular
provision to apply to non-governmental entities they said so. For
example, Article IX contains another provision that does apply to non-
governmental entities, namely, the requirement for a State Party to
consult if it ``or its nationals'' might interfere with others in outer
space.
Secondly, even if it applied, Article IX's planetary protection
provision is not self-executing. It requires the legislative branch to
make numerous policy judgments, such as whether the goals of space
science or space settlement should preempt one another or may be
pursued together. According to NASA's website,\3\ ``planetary
protection'' is the term ``given to the practice of protecting solar
system bodies (i.e., planets, moons, comets, and asteroids) from
contamination by Earth life, and protecting Earth from possible life
forms that may be returned from other solar system bodies.'' NASA is
being a good steward with this approach, but the approach is not
conducive to human settlement. If Congress were to legislate regarding
Article IX's goal of avoiding harmful contamination, Congress should
make it clear that human beings are not a contaminant. If Congress
settled that question, anything with equivalent or less biological
baggage than a human being should not be required to undergo the
expensive sterilization protocols now employed for government missions.
---------------------------------------------------------------------------
\3\ Office of Planetary Protection, https://
planetaryprotection.nasa.gov/overview (last checked May 18, 2017).
---------------------------------------------------------------------------
We must keep in mind, however, that the United States did not agree
to apply the harmful contamination provision to commercial operators.
Accordingly, until Congress acts, we may hope that the new
administration will not attempt to treat the harmful contamination
provision as binding Federal law for commercial operators. Just as in
Medellin where a President could not unilaterally impose a treaty
obligation on the states, regulatory agencies should not attempt to
impose treaty obligations on the private sector without Congressional
action. The United States could also take this opportunity to clarify
its own interpretation of this provision as applying only to
governmental operations in space, not to the operations of private
actors.
Conclusion
In closing, I wish to say that Congress, in deciding whether to
regulate a particular activity in space, should follow its usual
decision-making process for deciding whether an activity requires
regulation. Can the activity hurt other people? Could it have health
effects? Are there national security concerns? Are there other, less
burdensome solutions than Federal regulation? Is it too soon to
regulate? Congress has placed a moratorium on the regulation of human
space flight for safety purposes. Does the same logic apply to lunar
harpists? To lunar miners?
What the United States does not need to do is to regulate purely
for the sake of regulation, which is what the misunderstandings over
the role of Article VI in U.S. law may lead to. Nor, unless Congress
sees domestic policy reasons for doing so, does the United States have
an international obligation to impose the harmful contamination
provisions on the private sector.
Thank you for the opportunity to testify before you today. I look
forward to working with you on these issues in the future.
Senator Cruz. Thank you, Ms. Montgomery.
Mr. Schaefer.
STATEMENT OF MATTHEW P. SCHAEFER,
VERONICA A. HAGGART & CHARLES R. WORK PROFESSOR
OF INTERNATIONAL TRADE LAW; CO-DIRECTOR--SPACE,
CYBER AND TELECOMMUNICATIONS LAW PROGRAM,
UNIVERSITY OF NEBRASKA COLLEGE OF LAW; AND CO-CHAIR,
AMERICAN BRANCH OF INTERNATIONAL LAW ASSOC.
SPACE LAW COMMITTEE
Mr. Schaefer. Chairman Cruz, Ranking Member Markey, members
of the Subcommittee, it's an honor and pleasure to be here
today for this very timely hearing.
It is timely because of the Outer Space Treaty's (OST) 50th
anniversary, all the innovative and important new space
activities of U.S. businesses--many of whose representatives
are actually in the audience today--and given the fact the U.S.
has a current authorization gap for new space activities,
things like asteroid mining, lunar landers, on-orbit satellite
servicing, lunar research facilities and laboratories. This
authorization gap creates a problem in two ways. First, it
creates uncertainty for industry. That doesn't help investment.
That doesn't help business cases. Second, as activities go
forward, it may create compliance problems with U.S.
international obligations, which also can create problems, as
I'll elaborate on a bit further.
The U.S. has agreed to a set of treaty interpretation rules
internationally that are expressed in the Vienna Convention on
the Law of Treaties. The primary rule in that document is that
we interpret treaties according to the ordinary meaning of the
terms of the treaty in their context and in light of object and
purpose. It's very clear that Article VI of the OST calls on
the U.S. and other parties to the OST to authorize and
supervise commercial space activities in order to assure their
compliance with the OST. It further makes parties
internationally responsible for non-governmental activities in
outer space. This Article VI obligation seems to strike fear
into some people, and it shouldn't.
OST obligations are very minimally burdensome and quite
flexible in how they can be interpreted. It's a basic set of
principles, a few minimally burdensome rules, which, by the
way, help advantage U.S. companies as well. If we don't respect
our obligations under Article VI of the OST to create an
authorization and supervision regime, we're going to face
consequences. Our industry will face consequences. Foreign
retaliation is possible and a lot of space businesses are
global in nature. They depend on global partners, customers,
and investors to make out their business case. When the U.S.
Government doesn't respect its international treaty
obligations, foreign governments can retaliate; take away
markets, take away customers; take away foreign partners--and
foreign investors can shy away.
Second, when a U.S. company is a first mover up in outer
space, other countries will not respect these basic, minimal
norms when it comes to how they will interact with that first
moving U.S. company. Both of those impacts of treaty non-
compliance would create uncertainty for U.S. space companies.
On the self-executing nature of the OST, we could debate
that endlessly. The U.S. Senate has done an excellent job since
the U.S. Supreme Court's 2008 Medellin case, making very clear
which articles of treaties are self-executing and non-self-
executing. For older treaties, we're trying to glean U.S.
political branch intent on the issue of self-execution from
treaty text and less explicit domestic materials.
But the important point is even if the OST Article VI is
non-self-executing, the international obligation remains. If we
do not comply with it, we will face the consequences I just
laid out. Further, the Congress has directed, when it comes to
launch licenses and payload reviews, the Department of
Transportation to take into account our international
obligations.
What is creating the authorization gap is not a failure of
Congress to direct the Administration to comply with our
international obligations. Rather, what creates the regulatory
gap is the legislative history to the 1998 amendments to the
Commercial Space Launch Act that indicate that Congress was not
intending to grant on-orbit authority to the Executive Branch.
The U.S. Congress did an excellent job in the Space
Resource Exploration and Utilization Act of 2015 by
highlighting our international obligations when they laid out
that there can be property rights in extracted resources, a
long-standing U.S. interpretation of the OST. That continuity
internationally creates certainty internationally and also
helped the U.S. lessen vocal international opposition to the
law. That's the page out of the playbook that should be adopted
when we establish an on-orbit authorization regime.
In short, there's no need to terminate the OST. There's no
need to amend it. There's no reason to stray from our agreed-
upon treaty interpretation rules. There's no reason to ignore
the plain meaning of Article VI, and there's certainly not a
need to pay attention to certain OST obligations and reject
others. We can have an OST-compliant regime that meets the
spirit of permissionless innovation, something that led to the
growth and success of the Internet economy, and I'd be happy to
share further ideas on that in the question and answer session.
Thank you very much.
[The prepared statement of Mr. Schaefer follows:]
Prepared Statement of Matthew P. Schaefer, Veronica A. Haggart &
Charles R. Work Professor of International Trade Law; Co-Director--
Space, Cyber and Telecommunications Law Program, University of
Nebraska College of Law; and Co-Chair, American Branch of International
Law Assoc. Space Law Committee
Mr. Chairman and Members of the Subcommittee, it is an honor and a
pleasure to be here today to share my views on today's hearing topic:
``Reopening the American Frontier: Exploring How the Outer Space Treaty
Will Impact American Commerce and Settlement in Space.''
This hearing is especially timely. The Outer Space Treaty (OST), or
more formally the Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space, including the Moon
and Other Celestial Bodies, is celebrating its 50th Anniversary this
year. Commercial space business plans and activities are increasing
rapidly, including plans for new on-orbit activities going beyond
traditional remote sensing and communications satellites, such as
asteroid mining, lunar or on-orbit research facilities and hotels, and
on-orbit satellite servicing. And, at the same time, the U.S.
Government currently suffers from an on-orbit authorization gap for new
activities that go beyond remote sensing and communications--two
activities with current licensing regimes administered by NOAA and the
FCC, respectively. The authorization gap for new on-orbit activities
creates uncertainty for U.S. commercial space businesses and investors,
and as activities proceed, may also create compliance problems with
U.S. international obligations under the OST. The Executive Branch was
able to handle the Moon Express situation under existing authorities
given the limited nature of its activities, but authorization of more
elaborate activities is likely to require new authorities. In any
event, it is in the U.S. national interest and the interest of the U.S.
commercial space industry to have a certain and predictable process for
authorization established that complies with U.S. international
obligations.
The U.S. commercial space industry can flourish under the existing
OST. Indeed, the U.S. can establish a licensing or authorization regime
for new on-orbit space activities that complies with the OST and still
meets the spirit of permissionless innovation, a concept many credit
with the growth and success of the Internet economy. I refer the
committee to my article The Contours of Permissionless Innovation in
the Outer Space Domain forthcoming in Vol. 39 of the University of
Pennsylvania Journal of International Law (Fall 2017) for a detailed
examination of these issues. The article is available publicly now on
the Social Science Research Network (SSRN) at http://ssrn.com/
abstract=2942526. Today, I wish to highlight important findings from
that article but also push further into some of the international and
domestic dynamics involved in the today's hearing topic.
Permissionless innovation is rarely, if ever, pure in the sense of
the complete absence of government regulation altogether. Instead, the
core of a permissionless innovation framework is a default presumption
in favor of permission with limited constraints.\1\ The OST has very
minimal constraints on private space activities--and those minimal
constraints can actually help protect U.S. commercial industry from
harmful actions of other nations and actors. In short, there is a basic
compatibility between a flourishing and competitive commercial space
industry here in the United States and U.S. compliance with our
obligations in the OST.
---------------------------------------------------------------------------
\1\ See ADAM THIERER, PERMISSIONLESS INNOVATION: THE CONTINUING
CASE FOR COMPREHENSIVE TECHNOLOGICAL FREEDOM (2016).
---------------------------------------------------------------------------
There is no need for the United States to withdraw from or even
seek amendment to the OST. There is no need for the United States to
abandon long-established and long-agreed upon treaty interpretation
rules when interpreting the OST. There is no need to ignore the plain
language of Art. VI of the OST--a provision that requires
``authorization'' and ``supervision'' of the activities of a country's
commercial space actors in order to ``assure'' their conformity with
the provisions of the OST. There is no need to only pay attention to
certain OST obligations and ignore others. Undertaking any of the above
listed actions will actually undermine U.S. commercial space industry
prospects.
The U.S. commercial space industry--including segments involved in
new on-orbit activities--relies on global markets for their business
case. Partners, investors and customers from abroad are often necessary
to the business case.
If the United States does not take the minimal steps necessary to
comply with OST Art. VI, U.S. companies engaged in these activities may
face foreign retaliation in the form of denying access to customers or
partners, and investors from abroad may shy away as well. The United
States will also not be able to credibly insist that foreign
governments when conducting their space activities not harmfully
interfere with U.S. commercial activities. This diminished credibility
would put at risk the large and often long-term investments U.S.
commercial space companies undertake. If the Congress tasks the
Executive Branch with protecting U.S. commercial space actors from
foreign interference, it must also task the Executive Branch with
considering harmful interference an applicant might cause not only to
pre-existing U.S. Government operations or other pre-existing U.S.
commercial operations, but also harmful interference that might be
caused to pre-existing foreign activities.
The United States can and should maintain the continuity of the OST
and U.S. leadership in outer space matters. Congress can and should
create a certain and predictable domestic authorization framework for
new on-orbit commercial space activities that complies with the OST \2\
and comports with the spirit of permissionless innovation. The
continuity maintained internationally and the (hopefully) soon created
predictability and certainty within a U.S. domestic authorization
process will yield large benefits to the U.S. commercial space
industry. If such a path is followed, the risk of retaliation by
foreign governments for failure to abide by the OST and the risk of any
last minute stoppage by the Executive Branch of a new on-orbit activity
for reasons of international obligation compliance or national security
will be greatly reduced or eliminated altogether. Investors in these
new space industries will have legal certainty that should help
stimulate investment and growth in these industries.
---------------------------------------------------------------------------
\2\ In accord with Statement of Dennis J. Burnett, Hearing of House
Science Committee Space Subcommittee, March 8, 2017, pp. 8-9.
---------------------------------------------------------------------------
What the Congress provided for in the Space Resource Exploration
and Utilization Act of 2015 (within Public Law 114-90) is a perfect
example of maintaining consistency internationally while creating
greater certainty and predictability domestically in a fashion that
respects U.S. international obligations and dampens negative foreign
reactions. The act in Section 402 provides the following:
A United States citizen engaged in commercial recovery of an
asteroid resource or a space resource under this chapter shall
be entitled to any asteroid resource or space resource
obtained, including to possess, own, transport, use, and sell
the asteroid resource or space resource obtained in accordance
with applicable law, including the international obligations of
the United States. \3\(emphasis added).
---------------------------------------------------------------------------
\3\ Available at https://www.congress.gov/114/plaws/publ90/PLAW-
114publ90.pdf
These provisions of U.S. law are fully consistent with at least 35
years of long-standing U.S. policy and legal interpretations dating
back to 1979-1980 in statements by Secretary of State Vance and State
Department Legal Advisor Owen.\4\
---------------------------------------------------------------------------
\4\ See Letter from Secretary of State Vance to Sen. Church,
Chairman of Senate Foreign Relations Committee, Nov. 28, 1979,
reprinted in Agreement Governing the Activities of States on the Moon
and Other Celestial Bodies, Senate Committee on Commerce, Science and
Transportation, August 1980, at p. 313 (stating that the Moon Treaty
provides no moratorium on exploitation of space resources, that Art. II
of the Outer Space Treaty's ban on appropriation only applies to
resources in place, and that the Outer Space Treaty and Moon Agreement
would allow for ownership of extracted space resources) ; See also
Testimony of State Dept. Legal Advisor Owen in Hearings Before the
Subcommittee on Science, Technology and Space of the Senate Committee
on Commerce, Science, and Transportation on Agreement Governing the
Activities of States on the Moon and Other Celestial Bodies (96th
Cong., July 29 & 31, 1980)(both oral and written testimony) at p. 2-19
(``American companies will have a continuing legal right to exploit the
Moon's resources. . . .''; ``. . . once [resources] have been extracted
from the Moon, ownership can be asserted at that point. . .'';
``exploitation [can] go forward and that one can own what one can
remove from the surface or subsurface of a celestial body . . . the
negotiating history [of the Moon Agreement] makes it very clear that
that was contemplated by the parties.''; ``The United States took the
position from the outset that such exploitation should be permitted,
that such ownership after extraction should be permitted. And that . .
. is an authoritative interpretation. . . .''; ``. . . we have insisted
that even after such a regime is established [an international one
under the Moon Treaty], the right of unilateral exploitation will
continue to be available to those States which choose not to
participate in such a regime.'')
---------------------------------------------------------------------------
The reference to international obligations in the U.S. statute
envisions compliance with Art. VI of the OST and thus provides a
further justification for Congress to move forward and fill the
existing regulatory gap for new on-orbit activities. Just as
importantly Congress included a statement in the law in Section 403
that states:
It is the sense of Congress that by the enactment of this Act,
the United States does not thereby assert sovereignty or
sovereign or exclusive rights or jurisdiction over, or the
ownership of, any celestial body.\5\
---------------------------------------------------------------------------
\5\ Available at https://www.congress.gov/114/plaws/publ90/PLAW-
114publ90.pdf
This statement acknowledges U.S. obligations under the OST Art. II
and helps dampen any negative reaction to the codification of long-
standing U.S. interpretations of OST regarding property rights in
extracted resources.
The important lesson from the Space Resource Exploration and
Utilization Act of 2015 is it matters not just what Congress says in a
law but how it says it. Congress can provide for consistency
internationally while simultaneously creating certainty and
predictability domestically--all to the benefit of U.S. commercial
space interests. Referencing international obligations and paying heed
to the non-sovereignty obligation in Art. II makes many more countries
willing to hop on board or at least not overtly object to the long-
standing (and correct) U.S. interpretation that Art. II does not
prohibit property rights in extracted resources. Some countries, of
course, will continue to oppose the U.S. interpretation for reasons of
perceived national interest but that group is smaller and less vocal
than would be the case had Congress not mentioned and respected U.S.
international obligations in the statutory language of the Space
Resource and Utilization Act of 2015.
Imagine if instead the United States took the radical step of
withdrawing from the Outer Space Treaty because some countries disagree
with the U.S. interpretation regarding Art. II as it relates to
ownership rights in extracted resources. Initially, the question would
arise whether withdrawing from the OST would actually eliminate the
non-sovereignty obligation in any event since many believe the
obligation to now apply as a matter of customary international law as
well as treaty law. Terminating the treaty obligation would not
terminate the customary international law obligation. But setting that
issue aside, U.S. termination of the OST would likely prompt other
major space powers to withdraw from the OST, and thereby allow any
other nation arriving first to the celestial body after the treaty
terminations to declare sovereignty over vast swaths of the celestial
body, setting up a show down with later arriving U.S. commercial
interests. That is not the legal consistency, predictability and
certainty that U.S. space interests deserve. Moving forward to the
drafting and creation of a U.S. authorization regime for new on-orbit
activities, there is similarly a large downside to changing or ignoring
long-standing treaty interpretation methods or ignoring some OST
provisions altogether.
As described and summarized in the abstract to my Permissionless
Innovation article forthcoming in the University of Pennsylvania
Journal of International Law:
A permissionless innovation regulatory model . . . is being
explored for adoption in the outer space domain, given the
amount of innovation by commercial entities in that sector.
However, translation of the model to outer space is complex
because permissionless innovation is contextual, and the outer
space domain differs from the cyber domain in important
respects: First, international obligations require the U.S.
Government to authorize and supervise commercial space
activities. Second, national security concerns are potentially
raised by even every day, non-illicit space activities. Third,
space business investors actually demand enhanced regulatory
certainty given the risk and often long-time horizons of their
investments.
New on-orbit space activities . . . currently fall within a
regulatory gap--the Executive Branch lacks express
Congressional delegation to regulate such activities. This
situation may appear to be a victory for proponents of a nearly
pure or unadulterated version of permissionless innovation.
Indeed, to protect the status quo, permissionless innovation
advocates are ignoring long-established and agreed upon rules
of treaty interpretation to argue the U.S. Government is not
under an obligation to authorize and supervise U.S. commercial
space companies' activities.
The irony is that the current gap actually undermines the
benefits of permissionless innovation. The Executive Branch
faces a Hobbesian choice of following Congressional intent and
standing aside as new on-orbit activities are engaged in or
complying with international obligations and addressing
potential national security concerns by continuing to leverage
existing authorities in an attempt to control new on-orbit
activities. U.S. commercial space businesses--the innovators--
are left in a similarly difficult situation: facing a risk of
foreign government retaliation in event of U.S. Government non-
compliance with international obligations or being forced to
engage in costly and time-consuming litigation if the U.S.
Government blocks their proposed activity by stretching
existing authorities. Fortunately, the U.S. Congress can enact
a solution that fills the gap--one that provides compliance
with international obligations, protects national security, and
affords regulatory certainty for U.S. space businesses while at
the same time ensuring that permissionless innovation thinking
and espris de corps controls the interagency approval process,
including a default presumption in favor of approval.\6\
---------------------------------------------------------------------------
\6\ See Matthew P. Schaefer, The Contours of Permissionless
Innovation in the Outer Space Domain, forthcoming in Vol. 39 Univ. of
Pennsylvania Journal of International Law (Fall 2017), available
currently at http://ssrn.com/abstract=2942526
---------------------------------------------------------------------------
A Closer Look at Article VI of the OST and Obligations in the OST that
Might Minimally Impact U.S. Commercial Actors and
Simultaneously Help Protect U.S Commercial Space Businesses
OST Art. VI provides the following:
States Parties to the Treaty shall bear international
responsibility for national activities in outer space,
including the moon and other celestial bodies, whether such
activities are carried on by governmental agencies or by non-
governmental entities, and for assuring that national
activities are carried out in conformity with the provisions
set forth in the present Treaty. The activities of non-
governmental entities in outer space, including the moon and
other celestial bodies, shall require authorization and
continuing supervision by the appropriate State Party to the
Treaty. . . .\7\ (emphasis added).
---------------------------------------------------------------------------
\7\ Available at http://www.unoosa.org/oosa/en/ourwork/spacelaw/
treaties/outerspacetreaty
.html
---------------------------------------------------------------------------
The first sentence providing that States Parties bear international
responsibility for their non-governmental (commercial) entities'
activities is quite unique in international law. Normally, a government
is not responsible for purely private conduct in the absence of a
strong link such as the government exercising direction or effective
control over the private activity. This provision was part of the
trade-off in the negotiation of the OST in which the original Soviet
proposal was to ban private actors from space altogether. The OST
clearly allows for and anticipates commercial space activity but makes
State Parties internationally responsible for such activity. The last
clause of the first sentence of OST Art. VI also provides that States
Parties must assure that national activities (including those by its
commercial actors) are carried out in conformity with the OST. The
second sentence then requires the appropriate State Party to undertake
``authorization and continuing supervision'' of its non-governmental
(commercial) space activities.
Well-established and long-agreed to treaty interpretation rules are
codified in the Vienna Convention on the Law of Treaties (VCLT),
Articles 31 and 32.\8\ Although the United States is not a party to the
VCLT, it has long recognized that it considers itself bound to many of
its provisions, including the treaty interpretation rules, as a matter
of customary international law.\9\ VCLT Art. 31(1) provides the
following primary rule of treaty interpretation:
---------------------------------------------------------------------------
\8\ See Vienna Convention on Law of Treaties [hereinafter VCLT],
Arts. 31-32, available at https://treaties.un.org/doc/publication/unts/
volume%201155/volume-1155-i-18232-english.pdf
\9\ See, e.g., https://www.state.gov/s/l/treaty/faqs/70139.htm
A treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose. \10\
(emphasis added).
---------------------------------------------------------------------------
\10\ See VCLT, supra note 8.
Thus, when interpreting what authorization and continuing
supervision requires within OST Art. VI, the VCLT mandates looking to
the ordinary meaning of those terms in their context and in light of
their object and purpose. As written in my Permissionless Innovation
---------------------------------------------------------------------------
article:
The ordinary meaning of authorize is ``give official permission
or approval to,'' or ``to give official permission for
something to happen.'' \11\ The ordinary meaning of supervision
is to ``monitor,'' and the ordinary meaning of continuing is
``occurring in a cyclical or repetitious pattern.'' \12\ In
short, authorize and continuing supervision require some
process to ``give official permission or approval to,'' and
``monitor'' in some ``cyclical or repetitious pattern'' with at
least one purpose of such process to ``assure'' that commercial
actors are complying with OST obligations.\13\
---------------------------------------------------------------------------
\11\ See MacMillan Dictionary, http://www.macmillandictionary.com/
us/dictionary/american/authorize (last accessed Feb. 24, 2017).
\12\ See Business Dictionary, http://www.businessdictionary.com/
definition/continuing.html (last accessed Feb. 24, 2017).
\13\ See Schaefer, supra note 6.
The first sentence of Article VI provides the context to the
authorization and continuing supervision obligation. States parties are
to authorize and supervise to ``assure'' conformity by their commercial
actors with provisions of the OST. All of this only mandates very
light-touch regulation because OST obligations applied to commercial
actors are far from onerous as will be displayed below. It is important
to realize that those same obligations help to some extent protect U.S.
commercial space actors from injurious foreign actions.
The fact that Art. VI is argued to be non-self-executing by many
does not change the situation. Whether a treaty is self-executing is an
issue of whether the treaty automatically enters the U.S. domestic
legal system.\14\ The Executive Branch in the prior Administration
proposed a Mission Authorization Framework to implement Art. VI. If the
Executive Branch believed that Art. VI was self-executing, then it
would already maintain domestic authority to authorize on-orbit
activities, at least to ensure their compliance with the OST, unless
the legislative history to the 1998 space launch amendments indicating
Congress did not wish to grant on-orbit authority \15\ to the Executive
Branch overrode that pre-existing authority.
---------------------------------------------------------------------------
\14\ See Medellin v. United States, 552 U.S. 491, 505, fn. 2
(2008)('' The label ``self-executing'' has on occasion been used to
convey different meanings. What we mean by ``self-executing'' is that
the treaty has automatic domestic effect as Federal law upon
ratification. Conversely, a ``non-self-executing'' treaty does not by
itself give rise to domestically enforceable Federal law. Whether such
a treaty has domestic effect depends upon implementing legislation
passed by Congress.'').
\15\ See H.R. REP. NO. 105-347 (1997).
---------------------------------------------------------------------------
It is no surprise that there is some debate over whether OST Art.
VI or other OST obligations are self-executing. The Senate and other
political branches do an excellent job since the Supreme Court's 2008
decision in Medellin,\16\ and even beginning in the decade or two prior
to that decision, in expressing their intent on the issue of self-
execution in domestic documents connected with treaties, such as in
declarations included in Senate Resolutions of Advice and Consent.\17\
For many older treaties, such as the OST, Senate and political branch
intent is often not so clear in domestic documents concerning the
treaty, and that allows room for debate on the topic. But the key point
today is that the international obligation created by Art. VI remains
regardless of whether it is self-executing and failure to abide by it
will risk foreign retaliation undermining the business case of U.S.
commercial space companies and risk foreign space activities
interfering with U.S. commercial operations.
---------------------------------------------------------------------------
\16\ See Medellin, 552 U.S. 491 (2008).
\17\ See, e.g., Sen. Ex. Rep. 110-12 (Senate Foreign Relations
Committee ``included a proposed declaration that states that [the]
treaty is self-executing. This declaration is consistent with
statements made in the Letters of Submittal from the Secretary of State
to the President on each of these instrument and with the historical
practice of the committee in approving extradition treaties. Such a
statement, while generally included in the documents associated with
treaties submitted to the Senate by the Executive Branch and in
committee reports, has not generally been included in Resolutions of
advice and consent. The committee, however, proposes making such a
declaration in the Resolution of advice and consent in light of the
recent Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346
(2008), which has highlighted the utility of a clear statement
regarding the self-executing nature of treaty provisions).
---------------------------------------------------------------------------
Congress is in position to implement U.S. obligations under Art. VI
by passing legislation creating an authorization framework for new on-
orbit activities that ``assures'' compliance by U.S. commercial space
companies with OST provisions. Passing implementing legislation also
allows Congress to craft an authorization regime that comports with the
spirit of permissionless innovation and mandates that Executive Branch
take into account a limited number of other factors beyond OST
compliance, such as national security/harmful interference with pre-
existing U.S. Government and harmful interference with existing U.S.
commercial space assets.
Congress has actually directed the Department of Transportation
(DOT) in consultation with other agencies to take account foreign
policy when granting launch licenses and conducting payload
reviews.\18\ In fact, Congress was even more specific in directing the
DOT to ``. . . 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. . . .'' \19\ (emphasis added). This Congressional directive
allows the Executive Branch in its regulations regarding launch
licenses and payload reviews to take account of U.S. international
obligations (whether self-executing or not). Congress has directed by
legislation the DOT do so. What is creating the regulatory gap and
potential future compliance problems with the OST is the legislative
history to the 1998 amendments to the U.S. commercial space launch act
in which Congress indicated it was not granting on-orbit authority to
the DOT, rather only adding reentry authority to existing launch
authority.
---------------------------------------------------------------------------
\18\ See 51 U.S.C. 50905(b).
\19\ See 51 U.S.C. 50919(e).
---------------------------------------------------------------------------
If one goes through the OST to see what obligations implicate
commercial actors, one is left with essentially the following checklist
\20\:
---------------------------------------------------------------------------
\20\ This checklist is drawn from Schaefer, supra note 6.
(1) Does the applicant's planned activity claim surface or sub-
surface rights on a celestial body or prevent free access to
all areas of a celestial body, keeping in mind legitimate
rights to be free from harmful interference and legitimate
---------------------------------------------------------------------------
rights to extracted resources? (OST Arts. I, II & IX)
(2) Does the applicant's planned activity cause potentially harmful
interference with foreign space activities? (OST Art. IX)
(3) Does the applicant's planned activity risk harmful contamination
of a celestial body with Earthly matter? (OST Art. IX)
(4) Is the applicant willing to allow visits, based on reciprocity,
to its stations and equipment with maximum precautions and
conditions to ensure safety and no interference with their
operations? (OST Art. XII)
(5) Is the applicant respecting ownership rights of a foreign
operator's space object? (OST Art. VIII)
One might add as a sixth factor that the applicant is willing to
take possible steps to assist astronauts in distress should a need
arise, although this is likely to be impossible in most circumstances.
The fourth factor is also unlikely to arise in most instances because
only a few countries would have the capabilities to even consider a
visit, and those countries are unlikely to utilize their limited
resources to attempt to visit another country's commercial stations or
equipment, particularly when that visitation right is limited by
reciprocity, as well as the ability to limit visits for safety and non-
interference reasons, and also bounded by budgetary constraints.
Moreover, the ordinary meaning of the term visit means something of
short duration and that is not extensive or intrusive. Further, an
examination of the context and object and purpose of the provision may
very well indicate that it was intended to allow verification of arms
control provisions of the OST, thus obviating the need for visits to
U.S. commercial stations and equipment.
The above list of factors to take into account in ensuring OST
compliance is not onerous, particularly when one realizes there is
significant flexibility in how to define various terms such as
potentially harmful interference and harmful contamination. Moreover,
the obligation in Article IX regarding potentially harmful interference
is only an obligation to consult in advance but does not prohibit
proceeding with the activity. The U.S. commercial space industry will
benefit if the U.S. Government is able to engage in consultations with
foreign governments if a planned activity by a foreign government might
cause potentially harmful interference with U.S. commercial activities.
The U.S. Government can even have industry involved in setting the
standards that define terms such as harmful interference and harmful
contamination provided such definitions do not stray from the ordinary
meaning of those terms. For example, some worry that COSPARS planetary
protection standards developed in a scientific era of space will
necessarily apply to U.S. commercial actors and that those standards
will impose undue costs and burden on commercial actors. This concern,
however, is unjustified \21\:
---------------------------------------------------------------------------
\21\ See Schaefer, supra note 6.
. . . for a number of reasons [COSPARS] standards, created and
followed in a science-inspired coalition of governments and
scientists, do not create a floor for what constitutes harmful
contamination under the OST. The U.S. Government recognizes
that COSPARS standards do not constitute ``subsequent practice
establishing the agreement of the parties'' under the Vienna
Convention on Law of Treaties interpretation rules and thus the
U.S. Government need not follow these standards in authorizing
on-orbit activities. Instead, the U.S. Government has the
flexibility to set its own planetary protection standards in a
commercial environment or follow industry set standards.
Congress recently has promoted industry standards over safety
matters by requiring periodic reports from the FAA in
consultation with industry on such matters every 30 months.\22\
Congress could similarly push the FAA to promote industry
standards on matters related to ensuring compliance with OST
obligations by private parties--specifically non-interference
and harmful contamination (planetary protection) standards.
---------------------------------------------------------------------------
\22\ See U.S. Commercial Space Launch Competitiveness Act of 2015,
Public Law No. 114-90, Sec. 111(5).
To meet the continuing supervision obligation, the U.S. Congress
can simply require licensees to report material changes to operations
or business plans as they occur and, in any event, provide a report to
the authorizing agency once per year on activities. As the largest user
of space, the United States has a significant national interest in
maintaining and observing the basic, minimally burdensome rules found
in the OST and thus maintaining the credibility and ability to pressure
other nations to play by the same basic, minimally burdensome rules.
Failing to Fill the On-Orbit Authorization Gap Not Only Risks Non-
Compliance with the OST but Also Creates Regulatory Uncertainty
and National Security Risks for Commercial Space Actors
COMSTAC has called for a clear, transparent and predictable
framework for authorizing and supervising new on-orbit activities. The
industry panel later today will provide an opportunity to hear directly
from industry on this matter, but certainty and predictability assist
industry in obtaining investment and making efficient use of their
resources. Investors are willing to take risk on the success of a
technology, but regulatory uncertainty risk they are not particularly
keen on assessing or undertaking.
Additionally, there will need to be some acknowledgement of
national security concerns (at least to protect important U.S.
Government space assets) in any on-orbit authorization framework
created by Congress. Otherwise, the Executive Branch will always be
tempted, even if it requires stretching current authorities, to prevent
activities that might cause damage to important national space assets.
This is one of the risks created by the current regulatory gap for on-
orbit activities, a risk of a last minute blocking of a particular
commercial activity. Former Deputy Assistant Secretary of Defense for
Space Policy Doug Lovero's testimony in early March 2017 \23\ before
the House Science Committee's Space Subcommittee highlighted that the
damage caused by accidents in space is not limited in time or geography
given the physics of space. He also noted an occasion where were it not
for the voluntary accommodation of a commercial space company to modify
its plans, the U.S. Government would likely have taken action to
prevent or block the commercial company's plans from moving forward due
to the risk of damage to an important U.S. Government space asset.
---------------------------------------------------------------------------
\23\ See Statement of Doug Lovero, Hearing of House Science
Committee Space Subcommittee, March 8, 2017, at pp. 7-9.
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Guiding Principles and Concepts for an On-Orbit Authorization Regime
that Meets OST Article VI Obligations and Comports with the
Spirit of Permissionless Innovation
I would like to offer eight principles for consideration by this
Subcommittee and by the Congress as a whole to help ensure the spirit
of permissionless innovation pervades the OST-compliant authorization
regime it should create for new on-orbit activities \24\:
---------------------------------------------------------------------------
\24\ These eight factors are drawn and slightly modified from with
shortened analysis from Schaefer, supra note 6.
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1. Creating a Default Presumption in Favor of Approval
A default presumption in favor of approval is at the core of
permissionless innovation thinking and should be a feature in any on-
orbit licensing regime Congress adopts.
2. Limiting the Factors that Can be Considered by the Executive Branch
in Making Determinations
Factors for the Executive Branch to consider in authorizing new on
orbit activities can be limited to compliance with international
obligations, U.S. national security interests (or at least protection
of U.S. government space assets), measures to limit space debris, and
ensuring the proposed activity does ``not result in harmful
interference with [already] approved and operating [U.S.] payloads and
associated activities.'' \25\ The latter factor is necessary to protect
U.S. commercial first movers from interference from U.S. commercial
second-movers. Compliance with international obligations only deals
with interference between U.S. companies and foreign entities.
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\25\ See American Space Renaissance Act, HR 4945,
Sec. 309(a)(2)(C)(ii). One could also consider a factor that ensures
space artifacts are not harmed, such as Tranquility Base, the location
on Moon where Neil Armstong's footprints still reside and other similar
artifacts. This additional factor would only implicate activities on
the Moon in any event.
---------------------------------------------------------------------------
There is some concern over abuse of non-interference rights or what
may be termed ``space squatting.'' For example, envision a scenario of
a company rushing a comparatively low-cost asset to a particularly
valuable area of the Moon in order to attempt to cordon off an area
through creation of a non-interference right. Congress can direct the
Executive Branch to look at interference rights in this context with
particular caution. Harmful interference is not defined in the OST nor
in current domestic legislative proposals so there is flexibility to
account for this scenario both internationally and domestically. As
elaborated later in this testimony, this is one reason the Executive
Branch armed with the ability to account for the economic, technical
and diplomatic issues surrounding such scenarios should make these
determinations, rather than creating a right of action in U.S. courts
for adjudication. This is also another reason that companies should
report material changes in operation to the licensing agency as part of
that agency's continuing supervision obligation. License conditions can
also be utilized by the agency to prevent any attempted ``space
squatting.'' It is also important to note that the OST Art. II by
prohibiting property rights in the surface or sub-surface of celestial
bodies but allowing property rights in extracted resources with a
limited non-interference rights for operations actually achieves in
broad brush strokes a balance that seeks to avoid ``space squatting''
possibilities, particularly when one recalls that harmful interference
is not defined and in any event really only triggers an advance
consultation obligation. In the international context, as cases arise,
the U.S. government will be able to address situations of this kind in
bilateral negotiations with the relevant country--no major multilateral
agreement is need or even wise at this stage.
3. Enhancing the Default Presumption by Explicitly Declaring U.S.
Leadership in Specific New Activities being Contemplated is in
the National Security Interest of the United States
It is hard to contest that it is in the U.S. national security
interest to have U.S. companies be the first to engage in new on-orbit
activities, such as asteroid or lunar mining and to establish private
research labs or hotels in-orbit or on the Moon. Congress can
acknowledge and confirm this expressly in the statute to limit national
security grounds for denying applications. While on-orbit satellite
servicing is a bit more sensitive, it is far better to have U.S.
companies be leaders than followers in this industry segment as well.
4. Granting Lead Interagency Status to An Agency Directed to Promote
Industry (& That Has Experience In Licensing and Inter-Agency
Coordination)
If an agency with promotion authority of the industry is given a
lead role in an interagency process, then it can help ensure that the
benefits of an activity are fully considered as well as potential
foreign competition that might seek to benefit from less stringent
authorization processes abroad. Additionally, if an agency that has
experience in licensing is given the authority this will help reduce
transaction costs and avoid possible duplication in processes. For
example, the FAA-AST has both promotion authority and experience in
licensing and inter-agency coordination in commercial space matters and
is likely the best candidate to be the lead agency for reviewing new
on-orbit space activities. If such authority is given to another
agency, duplication may be created as FAA-AST will still conduct a
payload review, separately or as part of a launch license. Given the
State Department's lead role in treaty interpretation and international
consultations on space matters, and DOD's knowledge of critical
national security space assets, it is important that on-orbit licensing
remain an interagency process. Simply adding an on-orbit component to
the existing payload review, along with the other suggestions made in
these eight principles, may be the least costly and least disruptive
solution to solving the on-orbit authorization gap.
5. Establish Deadlines with Executive Branch Notification and Reporting
Requirements to Congress
In order to spur timely authorization decisions, the Congress can
place significant notification and reporting requirements on the
Executive Branch in any delegation of on-orbit authority to the
Executive Branch.
6. Consider Establishing an Ombuds as Well as Possible Appeal Avenues
to the President or Vice-President in Cases of Denial
I argued in my Permissionless Innovation article for consideration
of two possible ideas to provide an avenue for a company to seek to
overturn a denial of authorization and/or speed along delayed decision-
making \26\:
---------------------------------------------------------------------------
\26\ See Schaefer, supra note 6.
Congress might . . . consider creating an ombuds \27\ with a
top security clearance that is able to intervene in cases in
which decisions are delayed or rationales for decisions are not
fully explained (or cannot be explained due to lack of proper
security clearances by applicant company officials). Executive
ombuds take complaints regarding agency action and have been
created by statute on numerous occasions by the Congress. In
fact, there are so many ombuds that a coalition of Federal
ombuds has been created.\28\ Congress can also add an appeal to
a higher authority, such as a Vice-President-led Space Council.
. .or the President, in situations in which the ombuds working
with the interagency process and the company has not reached
satisfactory resolution.
---------------------------------------------------------------------------
\27\ See, e.g., Coalition of Fed. Ombudsman, http://
federalombuds.ed.gov/federalombuds/index.html (last accessed Feb. 24,
2017).
\28\ See id.
---------------------------------------------------------------------------
7. Limit Chances for Regulatory Arbitrage and ``Flags of Convenience''
to Help Ensure Innovation Occurs in United States
If the Congress limits the factors the Executive Branch may
consider in authorizing new on-orbit activities to compliance with
international obligations, national security (including protection of
U.S. government space assets), mitigation of space debris, and non-
interference with other existing U.S. space operators, it is quite
unlikely that any regulatory arbitrage or ``flag of convenience''
situation will arise in which companies move abroad to take advantage
of weaker licensing requirements. However, the regulatory uncertainty
caused by the gap currently existing due to the lack of an
authorization regime for on-orbit activities also risks driving
commercial space business overseas as companies potentially look for
countries willing to provide a license and certainty for investors. As
a further assurance against regulatory arbitrage, the Congress might,
if deemed necessary, require the interagency process led by the FAA-AST
to consider in its decision making the global nature of the industry
and the goal of not placing U.S. commercial space entities at a
competitive disadvantage compared to the regulatory frameworks and
authorization processes adopted by foreign countries.
8. Have U.S. Government Both Encourage and Give Substantial Deference
to Industry Standards
Private standards-setting bodies and self-regulating organizations
cannot in themselves be alternatives to an authorize and supervise
framework consistent with OST Art. VI because Art. VI requires the
government to be the one authorizing and supervising. However, as
discussed earlier, there is no prohibition on the U.S. government
deferring to industry-set standards and standards of self-regulating
organizations (e.g., for what constitutes harmful interference or
harmful contamination) in determining whether to authorize an
activity.\29\
---------------------------------------------------------------------------
\29\ See Schaefer, supra note 6.
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Two Approaches that Should be Avoided in Authorizing On-Orbit
Activities
Finally, I would like to recommend that Congress avoid two
approaches in its drafting and construction of an on-orbit
authorization regime \30\:
---------------------------------------------------------------------------
\30\ See id.
---------------------------------------------------------------------------
1. Avoid Listing Specific Activities that Require Authorization or
Giving Blanket Statutory Authorizations to Certain Activities
Constitutional Due Process and non-delegation principles do not
require the Congress to list specific activities that require
authorization.\31\ Policy reasons also argue against specific listing
of activities that require authorization as it is hard to predict which
activities will come to market first and non-listed activities will
continue to fall in a regulatory gap with all its downsides.\32\
Blanket authorization for certain activities will also be difficult as
it is often hard to say in advance with no context which activities by
their very nature will comply with OST obligations because it often
depends on how the activity is conducted. To take an example, lunar
beer brewing is unlikely to cause any problems in terms of OST
compliance or national security but it truly depends on how the
activity is carried out--if the beer brewer plans to land its facility
on-top of or just meters from an existing lunar facility of a foreign
country this would raise concerns of harmful interference or if the
lunar brewer was planning to use without permission another countries
space rover present on the moon to distribute its product to lunar
dwellers this would raise concerns of failure to respect ownership
interests of foreign space objects. Carve outs for minor or modest or
earthly-type activities by humans aboard stations could certainly be
explored. For example, it is hard to envision the daily human activity
(e.g., brushing teeth) within a space object or facility raising OST or
national security concerns or interference concerns with a another
space object and thus that could be a carve out.
---------------------------------------------------------------------------
\31\ See id.
\32\ See id.
---------------------------------------------------------------------------
2. Avoid Relying on the Common Law of Torts or a Newly Created Federal
Statutory Cause of Action for Unreasonable Interference
The court system will be ill-suited to define the specifics of what
harmful or unreasonable interference is in the context of outer space
activities whether it is between two U.S. companies or a U.S. company
and foreign company. The Executive Branch in consultation with industry
(in the cases involving two U.S. companies) or in consultation with
foreign governments (in the case of a U.S. company and foreign
company's activity potentially clashing) will be the best form of
cooperation to work out what is harmful interference as cases arise and
to take into account the economic, technology, and diplomatic
considerations such issues raise.
It has been an honor and a pleasure to be before this Subcommittee
and I look forward to answering your questions.
Senator Cruz. Thank you, Mr. Schaefer. Thank you to each of
the witnesses.
There are a number of important issues that have been
raised by this testimony. I want to start with the question of
Article VI and the extent to which Article VI and the OST is
self-executing.
And for those following this hearing who are not
necessarily living in the minutia of treaty law, the notion of
self-executing is a fairly straightforward notion. It is a
question of whether treaty language is in and of itself binding
domestic law that has force of law on private citizens within
the United States that is enforceable judicially and that binds
the government. If a treaty is not self-executing, Mr. Schaefer
is right. That doesn't mean the treaty has no force. It means
its force is diplomatic and political in nature, that there is
an international obligation, but it is not binding and
enforceable law in United States courts.
If I understand the testimony of the panel correctly, the
first two witnesses, Mr. Dunstan and Ms. Montgomery, both
testified that Article VI of the treaty is not self-executing,
in your judgment. And, Mr. Schaefer, if I heard you correctly,
you were a bit more agnostic on whether it was self-executing
or not, although, at a minimum, you didn't testify
affirmatively that it was self-executing. Is that a fair
assessment of the testimony?
Mr. Schaefer. We can take as a given that the OST is non-
self-executing. Again, I think people can come to different
conclusions. That's one of the reasons why the Medellin case
itself was a six-three opinion of the Supreme Court, right? But
set that aside. Let's even accept the view that OST Article VI
is non-self-executing. All it means is the Executive Branch
doesn't have current domestic authority to look at OST
obligations for new on-orbit activities. But, again, the
international obligation remains. If the U.S. doesn't do that,
we will suffer international consequences.
The Administration almost implicitly admitted it's non-
self-executing because they asked the Congress to enact
legislation. I should add even if it's self-executing, it still
wouldn't matter because there would be a great need for the
Congress to enact an authorization regime anyway. We don't want
to just look at OST compliance, these minimally burdensome
rules of the OST when authorizing an activity. We also want to
look and see whether an applicant is interfering with an
existing U.S. licensee's activities. We want to look and see
whether an applicant is interfering with an existing U.S.
Government activity, particularly a critical national security
asset.
So there are a number of factors Congress would want to
have an Executive Branch agency look at anyway. There's a need
to act separate and aside from this question of self-execution
or non-self-execution.
Senator Cruz. And I would note, going even a little bit
further than you did, that I think the Executive certainly has
the authority to recognize international law obligations and to
make discretionary decisions consistent with those obligations,
even if a particular treaty is not self-executing. What the
Executive cannot do is violate United States law. Medellin v.
Texas, which each of the witnesses has discussed, is a case I
know very well because I argued and won the case on behalf of
the state of Texas. So I spent many, many hundreds of hours
deeply immersed in Medellin v. Texas.
It is interesting in the discussion here, in that each of
the witnesses also, if I understood you correctly--none of you
are advocating reopening the Outer Space Treaty for
renegotiation, and all three of you are arguing that consistent
with the treaty language, it is possible to have a light-touch
regulatory regime. Or, I think, Mr. Schaefer, you used the
permissionless regulatory regime.
Is that accurate, and if so, should Congress legislate a
framework for commercial activity in space and incentivizing
enhanced commercial activity in space, and what should that
framework look like if we were to legislate in that direction?
Mr. Dunstan. I'll kick off, Mr. Chairman. I think the
important thing to understand about Article VI is there are two
notions that are contained in Article VI, the first of which is
that nations are responsible and liable for the activities. So,
really, how the United States chooses to authorize and
supervise is a matter of risk assessment for the U.S.
Government. How much risk are we willing, as a government, to
allow, and, therefore, how much of a regulatory regime do we
want to pile on?
So it is this sort of risk versus reward, and I can tell
you from my experience in private practice, if the regulations
become so burdensome, all of this stuff can easily go offshore.
We saw that with our satellite construction industry after the
implementation of ITAR, and we could easily see it on this.
I've already had clients who have looked at the existing
regulatory regime and how expensive it is to get an FCC
license, for example, and they've gone overseas to do this. So
we must be cognizant of the fact that if we don't get it right,
we're going to have flight of this technology and this industry
abroad.
Ms. Montgomery. I think one of the important things to
consider in contemplating a regulatory regime is to make sure
that it is actually very narrowly tailored to only those things
which are hazardous to others or could create interference so
that we would avoid the pitfall proposed by the Section 108
report that came out of the previous administration where
everything would require authorization and supervision. I think
we should start by Federalizing Connecticut, if we want to take
that route, and see how it works out. It's a small state, and
we could see if this is actually a feasible project.
But that being said, I don't think that the treaty does
require any particular activity to be addressed or authorized
even, and I think that mining is a perfect example of that. On
the ground, mining is dangerous. There are landslides, toxic
fumes, horrible issues for worker safety, cave-ins,
environmental issues. In outer space, there's no one else
around, and if your robot is mining an asteroid where no one is
going to get hurt, what is the purpose of government
regulation? And if you don't need the regulation, why do you
need the authorization?
I use the frivolous example of playing the harp on the Moon
as something that clearly doesn't require governmental
oversight, and that goes to the point that you need to draw
lines as to what requires oversight and what does not. So,
clearly, lunar beer brewing might be dangerous--pressure
vessels--I don't know--gases. But it might not. And so before
we start saying everything needs to be regulated or that
Article VI requires the regulation of everything, Congress
needs to go through its usual process of saying, ``Is this
something that is so hazardous or could cause such interference
to others that it needs to be regulated?'' And if it does, you
should call out, as we have in the past, launch needs
regulation, reentry needs regulation, satellite interference
needs regulation, but we shouldn't say everything.
Ms. Schaefer. Permissionless innovation is never totally
pure in the sense of no regulation at all. But at its core,
there's a default presumption in favor of approval, and the
Congress could certainly include a default presumption in favor
of approval of these new space activities in an OST-compliant
regime. They can also certainly limit the number of factors the
Executive Branch can take into account: OST compliance, not
interfering with existing U.S. commercial space activities, and
not interfering with important U.S. Government existing
activities and assets. The Congress can also give an agency
that has promotion authority and experience with licensing and
running an interagency process for space the lead over that
process.
I'll also address, because it was brought up, planetary
protection standards. There has been some talk that COSPAR
standards, that were created in a science era of space, somehow
now is what meets the definition of harmful contamination in
OST Article IX. The U.S. State Department explicitly has
rejected this view. COSPAR standards are not setting any
minimum floor that commercial actors need to comply with. The
Congress can actually have significant deference given to
industry-created standards for those OST terms that have
significant flexibility in their interpretation, like harmful
contamination and like harmful interference.
The last thing I'll say is Ms. Montgomery mentioned that
granting authority to authorize new on-orbit activities to the
Executive Branch is akin to trying to federalize everything in
Connecticut. It's really not. The better analogy because space
is a non-sovereignty zone, is that it's really like telling
U.S. citizens that travel to Antarctica, another non-
sovereignty zone, the following: ``Here are a few minimal
criteria you have to follow to ensure we're complying with our
international obligations and that you're not interfering with
existing U.S. activities or U.S. Government activities down
there.'' That's the appropriate analogy for what we're trying
to do in the space.
Senator Cruz. Thank you, Mr. Schaefer, and I'll note the
next Senator up, the Ranking Member, is the Senator from
Massachusetts, who might well be in favor of federalizing
Connecticut.
[Laughter.]
Senator Markey. I know there are some red states that
believe they've already been federalized----
Senator Cruz. Indeed.
Senator Markey.--and that was the subject of the 2016
campaign.
Give me your view as to what the reaction would be in
Russia or China or India if the Senate legislated in the area
of Article VI, if it put requirements on the books. What's the
reaction internationally if we do that?
Mr. Schaefer?
Mr. Schaefer. There are going to be some countries that
oppose our interpretations of various OST provisions for
matters of national interest, regardless of what we do. But I
think when we comply with Article VI of the OST, we increase
the number of countries that we have credibility to lead toward
the U.S.-inspired, commercially-friendly interpretations of the
Treaty.
And when we don't comply with Article VI of the OST, what
we do is we send some countries China and Russia's way. China
actually has been noticeably pretty quiet when it comes to
asteroid mining and property rights but as a general matter we
send countries their way if we do not respect our treaty
obligations. We also have less credibility to insist those
countries follow OST obligations. When a U.S. company is a
first mover, if we don't have as part of our criteria for
authorizing commercial companies a look at whether they are
causing harmful interference with a preexisting activity of
other OST parties, then we won't have the credibility to insist
on those parties doing the same for us.
Senator Markey. That's always the issue for the first
mover. There are fast followers, sometimes even faster
followers. So you have to think through the consequences of
that.
Mr. Dunstan, what do you think?
Mr. Dunstan. I think, again, as I testified, that the
United States is in a unique position because of our
constitutional historical background, because of the sort of
notion that Americans are free to do what they want unless they
are prohibited from doing it. By taking action here, the
Congress, I think, can lead internationally as we have in other
areas, as Congress did just a couple of years ago with the
CSLCA in extracted resources. We led. Sure, there was a
pushback from some in the international community, claiming
that that was equal to an Article II appropriation violation,
but yet many other countries are following suit. See what
Luxembourg is doing.
We certainly have led in tourists, suborbital tourists. The
approach the United States has taken and directed the FAA in
terms of that has been followed suit by other countries. We
are--by being the first mover, we can be the leader, and I
think that what Congress does here is going to be extremely
important going forward, and I think, ultimately, we'll be
followed by the vast majority of other countries.
Senator Markey. Mr. Schaefer, I heard you say in your
testimony that you felt that there were lessons from the
Internet that could be applied in outer space. Can you give me
some details in that analogy that could help us to flesh out
how we might proceed from here?
Mr. Schaefer. Sure. Permissionless innovation is a concept.
You don't want to stifle innovators, people that are dealing
with sophisticated technology, with overly burdensome
regulation. Actually, a lot of the space entrepreneurs and
Internet entrepreneurs are not real keen on hiring lawyers as
their first people on board.
Senator Markey. Shocking.
Mr. Schaefer. They bring them on kind of last and
reluctantly, right, and that's great. We want the engineers set
free, right? But with that said, permissionless innovation is
rarely, if ever, pure. Rather it's contextual. The space
context is a little bit different than the Internet context
because we do have an international agreement we're a party to,
the OST, that has an Article VI that says we have to authorize
and supervise, and the ordinary meaning of the term, authorize,
is give official permission to the activity. The important
point, though, is this Treaty obligation certainly doesn't have
to lead to overly burdensome regulation or an overly burdensome
checklist that the Executive Branch would run through.
But that is one contextual difference between outer space
and the Internet. We have very little international law and
treaties governing the cyber domain, unless you're talking
about use of force or criminal law issues. Then you can get
into some treaties. But very little treaties other than that.
In outer space, that's one difference.
The other difference is in outer space, it's longer time
horizons for investment, typically, although there are some new
business models that shorten that time horizon. But in the
Internet, it's very quick, right? But when you have a long time
horizon for investment such as with most space activities, you
really do need more regulatory certainty.
And what happens when you have this authorization gap,
you're creating domestic uncertainty with space businesses
asking: Who do I go to to get authorization? Do I really need
it? Are my investors still going to come on board? And then the
international uncertainty of not complying with Article VI
raises additional questions: Are foreign countries going to cut
off access to foreign customers and to foreign partners? When
you're dealing with long time horizons, it's really important
to have that certainty and predictability, for sure.
Senator Markey. Thank you.
Thank you, Mr. Chairman.
Senator Cruz. Thank you.
Senator Peters.
STATEMENT OF HON. GARY PETERS,
U.S. SENATOR FROM MICHIGAN
Senator Peters. Thank you, Mr. Chairman.
And thank you to our panelists for your testimony here
today.
One issue that came up in another committee--I serve on the
Armed Services Committee in dealing with space policy. One
issue that came up of particular concern is the amount of space
debris that now exists in orbit. I think I was reminded of a
recent launch by India where there were 104 satellites, I
believe, on one launch vehicle that--many of those are U.S.
nano-satellites, but, nevertheless, an awful lot of stuff is
going up there, into the tens of thousands to keep track of.
And as you are well aware, this material is moving at 17,000-
plus miles an hour and can cause a great deal of damage.
Give me a sense of what you think--or should we put
together some sort of legal framework to deal with this debris
differently than we do now? Whoever.
Ms. Montgomery. There are existing regimes on the
commercial side, regulatory regimes that address debris. The
FCC and NOAA both have debris rules and require mitigation of
the creation of debris. The FAA also has regulations that
require that you power down your batteries and vent your upper
stage so that there is no debris created.
The question is whether other things will require debris
regulation, such as satellite servicing, perhaps. Those all
have cameras and transmitters on them, and they could all,
perhaps, be placed without any change in law under the existing
regimes of the FCC and NOAA. So I think there's something in
place now. Whether more is required----
Senator Peters. Is that sufficient, in your mind?
Ms. Montgomery. It sort of covers everything you can think
of at the moment. So I do think it's sufficient for the moment.
Senator Peters. Does everybody agree?
Mr. Dunstan. Well, there are actually, potentially, five
different government agencies that have their own separate--and
they sit in five different sets of the Code of Federal
Regulations. They're all based on models and standards adopted
by NASA years ago, but they're all slightly different. So it's
actually possible to have a mission where you may have to have
three or as many as four different orbital debris mitigation
statements, and if one of the agencies disagrees or wants a
change, then you have to loop all the way back through.
So this is when I talk about sort of the cumbersome
regulations, because they all sort of grew up generically in
each of these stovepipes. A sort of consolidation of that
authority, I think, would really be helpful to industry. And I
would agree that there is enough on the books right now. As
long as we enforce it and make sure that they abide by the
debris mitigation standards, that's really not a worry going
forward.
Senator Peters. So if I understand both of you correctly,
there's enough out there already, but we need to harmonize, in
your estimation.
Mr. Dunstan. Yes, harmonization would be very nice.
Senator Peters. Mr. Schaefer?
Mr. Schafer. One thing I would add--there's a certain
element of the scientific community that would like to see not
just debris mitigation but actual active debris remediation.
The mitigation guidelines internationally, that were inspired
by the U.S. domestic guidelines originally, have certainly
helped. But when you have incidents like the Iridium incident
in 2009 or the Chinese ASAT test in 2007, those types of
activities can basically erase a decade's worth of beneficial
mitigation activities.
There is some thought for sustainability in space that you
would want to actually remove some of the existing debris, and
the problem becomes that many scientists would say the first
objects to remove are the largest mass objects, and a lot of
them are actually of Russian origin, and that gets us into the
legal issues of ownership of space objects. Thus, there are
some legal hurdles to work through in addition to technology to
develop to proceed with active debris remediation.
But in addition to the mitigation guidelines that are
present internationally, and enforced by the U.S. through
licensing criteria that Ms. Montgomery spoke of, the Congress,
in a 2010 statute, called on the Executive Branch to start
looking more into active debris remediation.
Senator Peters. And, finally, you mentioned, of course, the
Russian debris and other debris from other countries that are
now engaged in active space programs. You've talked about the
regulatory framework we have here in the United States. What's
your assessment of the framework, broadly, with other countries
that are launching spacecraft into orbit in relation to the
debris?
Mr. Dunstan. I would say, generally, most countries are
compliant unless it's in their interest not to be. There was an
ESA satellite not that long ago, Envisat, which had been
launched a number of years ago, and they ultimately ran it dry.
It's almost half the size of this room. It's one of the largest
satellites ever. And rather than de-orbit it, which they should
have, which the debris mitigation standards required, they just
ran the thing dry.
Their argument was, one, it was still producing
scientifically important information; and, two, it was designed
prior to when ESA had adopted orbital debris mitigation
standards. So they went so far as to not say it wasn't
launched, but it was designed, and therefore, the orbital
debris mitigation standards didn't apply. There are many
instances when countries in their own self-interest will either
waive--and we do it ourselves from time to time. There are a
number of Iridium satellites that have been--that the FCC has
waived the requirement that they be de-orbited because they
want to run them dry of fuel. So I think we have to be honest
with ourselves and say we have these mitigation requirements
and we need to stick to them even if it might not be in our own
interest to do so.
Senator Peters. Thank you.
Senator Cruz. Senator Nelson.
Senator Nelson. I would ask, how is the existing Outer
Space Treaty regime beneficial to the U.S. space industry? And
I would leave hanging for Colonel Melroy in the second panel:
What are the benefits of the existing Outer Space Treaty regime
for our commercial, civil, and national security space
interests?
Ms. Montgomery. In the area of liability, it does create a
certain amount of certainty because the treaty set out how a
particular country is a launching state and therefore liable
for any damage caused by activities that launch from the
country, that the government of that country launches or
procures, or using the facilities of that country. So a lot of
that certainty is very useful for the commercial sector. It has
been implemented domestically for the launch industry through
the Commercial Space Launch Act, and that has proved to be a
benefit for the commercial industry.
Mr. Dunstan. I would add that one of the most important
provisions of the Outer Space Treaty is the provision that
states--that any object that is launched from the surface of
the Earth is the property of the launching state and always
will be the property of the launching state. So that makes it
very clear from an international basis that nobody can come
along and pluck off your satellite under international law.
Now, the flip side, as Mr. Schaefer pointed out, when we've
got all this junk, all this abandoned stuff up there, it still
remains the property of, say, Russia, all these upper stages,
and, unfortunately, we don't have sort of concepts of maritime
law where we could go in and just yank these things out. But it
certainly gives confidence to an American company that if they
launch a satellite, it will always remain theirs, and they can
operate it so long as they abide by United States law.
Mr. Schaefer. So I think it's a great question. We talked
about minimally burdensome obligations in the OST for U.S.
companies, but the reciprocal side, the other side, is that
these obligations do benefit U.S. companies. Take, for example,
OST Article II's non-appropriation, non-sovereignty obligation.
If some other country is a first mover realizing there's going
to be a couple of countries besides the United States that are
possible first movers, we're not going to have an entire U.S.
industry blocked from that area of a celestial body, because
there's free access to all areas of celestial bodies. These
obligations are certainly in our businesses' interest. The fact
that countries have to think about whether they're causing
potentially harmful interference with U.S. activities before
they proceed is another example of a benefit. So there are
protections in the OST that do provide more certainty for U.S.
companies in terms of their business plans and ventures.
Senator Nelson. Thanks, Mr. Chairman.
Senator Cruz. Thank you.
Senator Hassan.
STATEMENT OF HON. MAGGIE HASSAN,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Hassan. Well, thank you, Mr. Chair, and thank you
to the panelists.
We're obviously talking about the opportunities that space
exploration presents for scientific discovery and advancing our
knowledge here on Earth and creating new opportunities for our
businesses to thrive. I'm really pleased that you all are here
today and that the Committee has gathered to examine the U.S.
Space Treaty and whether and how this legal framework can be
improved upon or sustained.
As Senator Cruz indicated, I also wanted to make sure that
the testimony from Michael Listner was in the record. Mr.
Listner happens to be not only a space expert and founder of
the legal and policy consulting firm called Space Law and
Policy Solutions, but he's based in my home state of New
Hampshire. So I have spent a little time looking at his
testimony, and I think it reflects what we've been discussing,
which is the fact that the decision about whether to withdraw
from the Outer Space Treaty would be a very difficult one for
us to make. There are obviously lots of considerations, most of
which that I had on my mind you've all touched on.
But I wanted to give you the opportunity just to help us
think through, as we all assess these matters, how we should
balance the interests of industry stakeholders for further
exploration and advancement with our top priorities in national
security. What should we be thinking about in terms of that
balance?
Mr. Dunstan. That, of course, is the difficult question.
How do you balance--and I would say there are three balancing
acts. There's the commercial aspect, there's the scientific
aspect, and then there's the national security aspect, and it's
a tough balance to do.
I can just report, in terms of my experience, in what could
potentially become a parallel mechanism, which was the ITAR,
the International Traffic in Arms Regulations, and what we saw
there was a regime which was non-transparent, which was non-
appealable. It was essentially a black box. So whatever we do,
that balancing, to the extent we can--we understand there are
national security interests where we can't always give you a
reason, no.
But we've got to have a regime that allows you to have a
right of appeal, that has the right to get an answer, as
opposed to the ITAR regime. It was just no, and you never found
out why. So transparency in whatever Congress does, I think, is
critical, and that will give, I think, the industry as much
sort of certitude as it can get.
Senator Hassan. Thank you.
Ms. Montgomery.
Ms. Montgomery. Yes. I think one of the problems--I agree
with everything Mr. Dunstan said, just to start with. But,
also, one of the solutions to that, as Congress considers
drafting legislation, is to not just use--is to not use very
vague language. There are lots of statutes in the space arena
out there that just talk about national security. Well, there
are lots and lots of things that that could mean, and,
unfortunately, it can sometimes mean that the regulatory person
in charge of figuring out if there's a national security issue
sits there somewhat paralyzed--what could I be missing? And
then you get lots and lots of delay.
So I think that if Congress clearly articulated the
standards, for instance, we do not want anyone--and I'm just
making this up--we do not want anyone transmitting pictures of
my secret satellite back to Earth, and just make that a clear
prohibition, then that would be very helpful, and so, of
course, the National Security Agency might give you language a
little bit more vague than what I just said, but perhaps not so
vague that the non-transparent black box becomes the norm.
Senator Hassan. Thank you.
Mr. Schaefer.
Mr. Schaefer. I would just say there are some competing
interests there, but sometimes not. There are some synergies,
too, and, in fact, one of the things I recommended in my
written testimony was that Congress actually declare that
having U.S. companies be the leaders in these new space
activities, at least the ones that are foreseeable, is actually
in the national security interest of the U.S.
To take a couple of examples, China controls 85 percent of
the rare Earth minerals on Earth. If we have U.S. companies--
and, again, it depends on whether there's an ultimate business
case for it--but if we have U.S. companies that are able to get
access to those minerals on celestial bodies, then that can
change the dynamics. It's also in the U.S. national security
interest for U.S. companies to be the first to do, and be the
best performers at on-orbit satellite servicing. It requires
rendezvous and proximity operations and it's better to have
that technology, or the most advanced forms of that technology,
developed in the U.S. and performed by U.S. firms.
I know in remote sensing, it seems to some like the
tradeoffs are a little more stark. But in these new on-orbit
activities, there are actually a lot of synergies, and I think
Congress could actually so state in the law to limit that
national security barrier to the commercial activities.
Senator Hassan. Well, thank you, and thank you all for very
thoughtful testimony.
Senator Cruz. Thank you.
Let me ask another question that came up in some of the
answers here. There were multiple references to satellites and
space junk and property rights, and I want to ask the panel's
view on what should the legal regime be. Mr. Dunstan referenced
maritime law, for example, encouraging salvage. Should we have
a similar regime encouraging salvage in the removal of space
junk?
And a related question--Article II of the Outer Space
Treaty says that outer space, including the Moon and other
celestial bodies, is not subject to national appropriations by
claims of sovereignty, by means of use or occupation, or by any
other means. Is that prohibition consistent with our interest
in encouraging robust investment in exploration and development
of outer space?
We had the last great frontier in America, settling the
West. We had the Homestead Act, which provided an acute
financial incentive for people to take the great risk of going
and investing. Do we need, with respect to outer space, with
respect to the Moon or Mars, the equivalent of 40 acres and a
mule, you know, 40 miles and a lunar rover? What role should
property rights play in space, either with satellites or with
lunar settlements or settlements on Mars or otherwise? And I
would open this to all the witnesses.
Ms. Montgomery. I think that there are two points on the
property rights question, and I'll leave salvage to someone
else. But Article II does not prohibit commercial or private
ownership of land, and I think that's very clear. The fact of
the matter is that property rights serve as a great incentive
to investment. If you don't have property rights, you cannot
put up your land as collateral. You cannot get investors.
There's nothing to securitize your investors' interests, and
you yourself are hampered in your ability to plan if you don't
know that the property that you are using and, hopefully, going
to be spending decades on is yours.
So I do think that the United States should figure out a
way to recognize property rights extra terrestrially, and I do
think that the Outer Space Treaty allows that. I do believe
there are a lot of people who disagree with my view, and I
think that it is something that needs to be looked at very
carefully and thought through, because the incentives are there
for development if there are property rights.
Mr. Dunstan. So I would disagree with Laura--the first time
I've disagreed with her today--because I don't think the Outer
Space Treaty, as it is written, would allow for the United
States to even recognize domestically that.
But I would give you another analogy to the opening of the
West, and that would be the fact that the United States
retained title in what are now the reservations of the Native
Americans, and yet you are able to go on and buy a mining lease
or a drilling lease on those. Now, it's cumbersome, but that's
because we put this bureaucracy on top of it.
But people can go in and mine resources off of our Native
American reservations and extract those resources and profit
from them without actually owning the land on which they're
doing that. So I think in that way, an asteroid could be the
same thing. You can't own the whole asteroid, but everything
you take out of it becomes yours, and that's what Congress
recognized with the CSLCA in 2015.
Senator Cruz. So let me press you a little bit on that, Mr.
Dunstan. Two follow-ups. One, in your initial testimony, you
did not advise renegotiating the OST. I want to ask how that's
consistent with the answer you gave; and, two, that the analogy
of Indian territories--there, the United States--if you're
retaining title under Article II, the United States and other
nations can't make claims of sovereignty. So how is that--how
do we reconcile that to incentivize serious investment?
Mr. Dunstan. So the Native American analogy is the fact
that the United States owns the land, not the tribe. So put the
United States in this analogy at the sort of international
level. So the tribe doesn't own it, yet the tribe can enter
into mining leases, which don't convey a property right
underneath it. So as the analogy said it, you don't have to
have underlying property rights to still extract resources from
it.
And, second, I think Article II is pretty clear that we
can't domestically recognize property rights. We would have to
go in and renegotiate that treaty, and I think that's a----
Senator Cruz. But from whom would you obtain the lease? In
your analogy, you have the United States, from whom you could
obtain the lease.
Mr. Dunstan. Right.
Senator Cruz. The international community--there is no
entity from whom to obtain a lease.
Mr. Dunstan. That's correct. You just can go out and mine
that asteroid. You just can't own that asteroid. You can't
obtain a property right in the whole asteroid, only with what
you extract from it.
Senator Cruz. And you'd say the same for the Moon and for
Mars?
Mr. Dunstan. Same for the Moon and for Mars, yes.
Senator Cruz. Mr. Schaefer.
Mr. Schaefer. Well, on the question of salvage, maritime
salvage doesn't work for most space debris because most space
debris is valueless, so there's nothing to be saved from the
peril, so to speak. There is a little used concept called
``liability salvage'' that has found some reflection in U.S.
maritime law, where you're saving the person from the liability
they would face if their piece of junk hit something valuable.
But given that it's a fault-based standard of liability in
space even liability salvage may be difficult to implement.
Who's at fault if a piece of debris hits an active satellite,
the thing that can move or the thing that can't move? And it
might depend quite a bit on the facts. Was the debris created
in opposition to the internationally recognized debris
mitigation guidelines or not? Thus, establishing liability
would be very fact specific. In short, liability salvage
theoretically may have some application, but pure maritime
salvage doesn't work.
On the property rights issue, obviously, under U.S.
interpretation of OST as now recognized and codified by the
Congress, U.S. space businesses have property rights in
extracted resources. That's 38 years, at least, of U.S.
interpretation on the issue, now confirmed and codified by the
Congress.
In terms of cordoning off areas, it's really the non-
interference right that comes into play. It might be better to
proceed on a case-by-case basis with adding flesh to the
principle. We could get a situation of U.S. company versus U.S.
company, both going for the same area of a celestial body, and
needing to assess what a non-interference right encompasses.
We could also have a U.S. company versus foreign country
situation, and it's probably best to leave the discretion in
the Executive Branch's hands, case-by-case, applying those
basic guiding principles than trying to do a complete rewrite
and upset of Article II of the OST, which I think very few
countries would join. I think bilateralism, case-by-case, is
probably the better way to go in the near and medium term at
least.
Senator Cruz. Well, thank you to each of the witnesses. I
think this was a very productive and educational panel. I will
note that I'm looking forward to trying Ms. Montgomery's
Celestial Moon Beer if and when it is brewed.
[Laughter.]
Senator Cruz. And with that, I want to thank each of the
three witnesses in the first panel and welcome to come forward
the second panel, which we will move immediately to as soon as
you have a seat.
I want to welcome the second panel now. We will have a
total of four witnesses. The first is Dr. Bob Richards, who is
a space entrepreneur and a futurist. He is Co-founder of Moon
Express, Inc., a space transportation and lunar resources
company located at Cape Canaveral, where he currently serves as
President and CEO. Dr. Richards chairs the Space Commerce
Committee of the Commercial Spaceflight Federation, serves on
the Board of the Space Foundation, and is a Member of the
International Institute of Space Law.
Our second witness is Mr. Peter Marquez, who is the Vice
President for Global Engagement at Planetary Resources, where
he is responsible for working with governments around the
world. Mr. Marquez has held positions in the Air Force, in the
Office of the Secretary of Defense, working on national
security space programs and special programs. After his time in
the Pentagon, Mr. Marquez served on the National Security
Council as the Director for Space Policy for President George
W. Bush and also for President Barack Obama.
Mr. Mike Gold is the Vice President of Washington
Operations and Business Development at Space System Loral. Mr.
Gold previously served for 13 years with Bigelow Aerospace,
where he supported a variety of non-traditional space
activities. Mr. Gold also serves as the chair of COMSTAC, which
is the Federal advisory committee that provides advice and
counsel to the Federal Aviation Administration's Office of
Commercial Space Transportation.
And, finally, Colonel Pamela Melroy is a retired Air Force
test pilot and NASA astronaut. Colonel Melroy is a veteran of
three missions to the International Space Station and is one of
two women to command the space shuttle. After leaving NASA,
Colonel Melroy worked in industry and at the Federal Aviation
Administration's Office of Commercial Space Transportation.
Colonel Melroy recently left DARPA after serving 4 years as the
Deputy Director of the Tactical Technology Office. Colonel
Melroy is now owner and CEO of Melroy and Hollett Technology
Partners.
Welcome to each of you.
Dr. Richards, you may begin.
STATEMENT OF ROBERT (BOB) RICHARDS, FOUNDER AND CHIEF EXECUTIVE
OFFICER, MOON EXPRESS, INC.
Mr. Richards. Thank you, Mr. Chairman, Ranking Member
Markey. It's an honor to be invited to speak with you today
about reopening the American frontier and unleashing the
innovative power of the U.S. commercial space industry as a
driver of the Nation's space economy and settlement.
Our need to expand humanity into space is not in question.
To consider otherwise would put an expiry date on the human
species. What is in question is the way that we will expand
into space and which nations will set the standards of freedom
and endeavor and reward as we enter these new frontiers. As a
country built on the foundations of first frontiers, the United
States stands unique in all the world with the opportunity to
focus the power of its entrepreneurial history and enterprising
vision to open up the space frontier and in so doing create a
peaceful, prosperous, and boundless future for all humanity.
Today, I address you as the founder and CEO of Moon
Express, a privately-funded commercial space company created to
seek and unlock the resources of the Moon through a progressive
series of commercial robotic missions, starting with our maiden
voyage scheduled to launch late this year. Relevant to the
subject of this hearing is that last year, after months of
interagency consultations, Moon Express became the first
commercial entity to receive formal U.S. Government approval to
send a robotic spacecraft beyond traditional Earth orbit and to
the Moon. This was, in fact, the first time in history that any
government signatory to the Outer Space Treaty exercised its
rights and obligations to formally authorize and supervise a
commercial entity to fly beyond traditional Earth orbit and to
the Moon.
The framework we used for our mission approval was an
interim patch that built on the existing payload review process
of the Federal Aviation Administration Office of Commercial
Space Transportation with a series of additional voluntary
disclosures intended to help satisfy U.S. obligations under the
OST. We worked independently with all stakeholder Federal
agencies who, in turn, worked collaboratively and creatively to
find a way to approve our ad hoc approach, even as Congress and
the administration determined a more formal framework.
Looking beyond our mission approval, which is an interim
solution, we support a process that focuses on streamlining the
regulatory framework, limits the government's role to a light
touch, promotes American innovation and investment, and
satisfies our international obligations. In essence, we believe
that a commercial space activity should enjoy deemed
authorization, presumed authorization, unless there is a
clearly evident or meaningful, demonstrable impact on national
security, U.S. obligations under international treaties, or
harmful interference with others.
The key to our survival as a species, in fact, the only key
we hold in the long term, is to evolve into a multi-world
species, harnessing the practically infinite energy and
resources of space and easing the pressure on our home planet.
Preservation of the Earth and our civilization is precisely the
reason we need to expand our economic and societal sphere into
space, beginning with the Moon and then beyond.
But it's not just about boldly going. It's about boldly
staying. It's about moving the economic sphere of Earth outward
in a way that uses the material wealth of space to solve the
urgent problems we now face on Earth, to bring the poverty
stricken segments of the world up to a decent standard of
living without recourse to war or punitive action against those
already in material comfort, to provide for a maturing
civilization the basic energy vital to its survival through
freedom of commerce in space.
We are at the cusp of a magnificent adventure, an evolution
of our species perhaps as significant as the evolution of life
from ocean onto land. Our emergence from Earth into the ocean
of space holds promise and opportunity, but also dangers of
migrating conflict, and for the first time in human history, an
opportunity to conquer new worlds without conquering each
other.
The United States has taken proactive measures to support
its private sector and has interpreted the Outer Space Treaty
in favorable ways to the Constitution and the founding
principles of this country. While the Outer Space Treaty may
appear antiquated in some ways, it is a remarkably visionary
document with profound principles that have served the world
well for decades.
I believe time and energy is better spent in continuing to
interpret the Outer Space Treaty in favor of international
collaboration without constraining the rights, the benefits, or
the freedoms of U.S. commercial enterprise. We aspire to the
stars. Mars beckons as a second home for humanity. The Moon is
our gateway.
Thank you, Mr. Chairman, for the opportunity, and I welcome
questions afterwards.
[The prepared statement of Mr. Richards follows:]
Prepared Statement of Robert (Bob) Richards, Founder
and Chief Executive Officer, Moon Express, Inc.
Mr. Chairman, Senator Nelson, members of the Committee,
It is an honor to be invited to speak with you today about
reopening the American frontier and unleashing the innovative power of
the U.S. commercial space industry as a driver of the Nation's space
economy and settlement. Although our lives are dominated with the
everyday challenges of life on Earth and with each other, these matters
are ultimately trivialized by the challenge of securing humanity's
future through our expansion into space, utilizing the practically
infinite energy and resources of space, and ultimately becoming a
multi-world species.
Our need to expand humanity into space is not in question, to
consider otherwise would put an expiry date on the human species. What
is in question is the way we will expand into space, and which nations
will set the standards of freedom of human endeavor and reward as we
enter these new frontiers. As a country built on the foundations of
Earth's frontiers, the United States stands unique in all the world
with the opportunity to focus the power of its entrepreneurial history
and enterprising vision to open up the space frontier, and in so doing,
create a peaceful, prosperous and boundless future for all humanity.
Personal Journey
My personal journey has been vested in creating international
institutions and enterprises necessary to create a peaceful and
prosperous spacefaring civilization. As a student in the 1980s, I co-
founded Students for the Exploration and Development of Space, today
still the largest student-run global space organization; the Space
Generation Foundation, whose follow-on Advisory Council works with the
United Nations to inspire and enable global youth to pursue their
dreams in space; and the International Space University, which since
its founding in 1987 has instructed thousands of graduate level
students from both our main campus in Strasbourg, France, and our Space
Studies Programs hosted around the world. Many graduates of this
program today are in positions of leadership in the global space arena.
More recently in 2008, I co-founded Singularity University, which has
become a hub of global entrepreneurial innovation from our campus in
Silicon Valley, tackling some of the worlds grand challenges with
exponential technologies.
I have also had the honor of working with NASA on the successful
delivery of a robotic spacecraft to the north pole of Mars, a
scientific mission that added much to our understanding of the Red
Planet, and with the U.S. Air Force on the demonstration of
technologies in Earth orbit that enable new capabilities in autonomous
rendezvous and proximity maneuvers.
Today, I address you as Founder and CEO of Moon Express, a
privately funded commercial space company created to seek and unlock
the resources of the Moon through a progressive series of commercial
robotic missions, starting with our maiden voyage scheduled to launch
late this year.
The Moon--Our Eighth Continent
I look on the Moon as Earth's eighth continent; a new world with a
total land mass approximating North and South America combined. Thanks
largely to the terabytes of data generated by the NASA's Lunar
Reconnaissance Orbiter, we know the Moon has vast resources,
accumulated through billions of years of asteroid bombardment that
enriched the Moon much the same way as Earth, except for one key
difference: accessibility. Unlike Earth, these lunar resources are
largely on or near the lunar surface, relatively accessible except for
the challenging economics of retrieving them when all the energy to do
so needs to come from the Earth's surface. But this too has now changed
. . .
Perhaps one of the greatest practical discoveries of our generation
is the presence of vast quantities of water on the Moon, verified by
NASA in 2009. The discovery of water on the Moon is a game changer, not
just for the economic viability of lunar resources, but for the
economics of reaching Mars and other deep space destinations.
Water is the oil of the solar system, and the Moon will become a
way-station in the sky. With private sector interest emerging in
economic activity outside of traditional Earth orbit, the question of
how the U.S. will enable and protect its national interests and non-
governmental players is now timely and serious.
`Mission Approval' for the 1st Private Venture to the Moon
To date, all spacecraft that have ventured beyond Earth orbit on
pre-authorized missions have been government spacecraft, and therefore
were de-facto compliant with the Outer Space Treaty's (OST) Article VI
requiring government authorization and supervision. The U.S. has always
believed that the private sector would be a growing part of our
national space enterprise, and U.S. negotiators of the OST insisted on
recognition for non-governmental actors in space. In its `Mission
Approval' framework, Moon Express recognized the requirement to comply
with the treaty's framework as a U.S. company, and is honoring that
commitment while pursuing a vital commercial role in our human space
future.
Following the welcome enactment of the Space Resource Exploration
and Utilization Act of 2015, we weighed the risks of seeking funding
from investors for the final development and maiden launch of our first
spacecraft with one critical question unanswered: would the U.S.
Government actually give us permission to fly? In early 2016, after
visiting a number of Federal agencies involved in the interagency
review of launch licenses, it became clear that although any of the
agencies could potentially say ``no'', no one agency had the
independent authority to say ``yes''. We needed certainty to attract
further funding from our investors, within a timeline desired by our
customers, so we began seeking an answer.
In the absence of any prescribed process or clarity of regulatory
authority, we proposed a `Mission Approval' framework, intended as an
interim `patch', that built on the existing payload review process of
the Federal Aviation Administration Office of Commercial Space
Transportation (FAA/AST) with a series of additional `voluntary
disclosures' intended to help satisfy U.S. obligations under the OST.
We worked independently with all stakeholder Federal agencies, who in
turn worked collaboratively and creatively to find a way to approve our
ad hoc approach, even as Congress and the Administration determine a
more formal framework.
As a result of our initiative and the Federal agency efforts, on
July 20th, 2016, Moon Express became the first commercial entity to
receive formal U.S. Government approval to send a robotic spacecraft
beyond traditional Earth orbit and to the Moon. This was in fact the
first time in history that any government signatory to the Outer Space
Treaty exercised its rights and obligations to formally authorize and
supervise a commercial entity to fly a mission beyond Earth orbit. So
let us be clear: for our `Mission Approval', the United States
government has more than complied with Article VI. But let's also be
clear that what we received was qualified as a ``one-time only''
authorization, because it was made clear to us that the positive
determination does not extend to future missions by Moon Express or
similar missions from other entities. We are therefore still contending
with regulatory uncertainty for future missions.
We can only be thankful for the efforts of the FAA's Office of the
Associate Administrator for Commercial Space Transportation, and in
particular George Nield, Shana Dale and Laura Montgomery, who
championed our `Mission Approval' application through an enhanced
payload review process. Aided in particular by the concerted
interagency efforts of Tom Kalil and Ben Roberts at the White House
Office of Science and Technology Policy, Brian Israel and Ken Hodgkins
at the State Department, Robin Frank at NASA, Doug Loverro at the
Department of Defense, and many others who worked with them or at other
agencies, we were able to secure a consensus approval, communicated to
us by the FAA Office of Commercial Space Transportation, so Moon
Express could move forward with our mission plans. Equally as
important, this approval allowed us to solidify our private financing
which had been hampered by the uncertainty regarding Federal permission
to undertake our mission.
The Mission Approval as Precedent for a Future Regime
In 1983 Congress began the long effort to craft and enact the
Commercial Space Launch Act of 1984, which gave the Department of
Transportation sufficient authority to become a one-stop shop for
launch licensing. Three decades later, this committee helped write the
Commercial Space Launch Competitiveness Act, which directed the
previous administration to propose a long-term solution to authorizing
and supervising commercial space ventures beyond launch,
telecommunications, and remote sensing.
The effort for our `Mission Approval' came at a huge cost of
company executives' time and expense, triggered exhaustive interagency
deliberations, and delayed our fundraising and our mission. We're glad
we were able to do this, but it wasn't an easy path and we were never
assured success. To some extent we believe our `Mission Approval'
framework was accepted because we were proposing a fairly simple,
short-duration mission. Lacking any further Federal clarification of
approval process, we plan to use our `Mission Approval' framework
again, and we need to be able to use it again soon, as we have follow-
on lunar missions already in the works for 2019 and 2020. We are
hopeful that the Congress and Administration, in consultation with
industry, can apply principles like those we based our approach on to
craft a more permanent system for companies like us, and the many
companies that are yet to be born who will join us in expanding U.S.
commercial space activity to the Moon and beyond.
Supporting a Regulatory Framework with Minimal Burden and Maximum
Certainty
We support a process that focuses and streamlines the regulatory
framework, limits the government's role to a light touch, promotes
American innovation and investment, and satisfies our international
obligations. We believe this could be accomplished with a ``presumed
authorization within predefined boundary conditions'' approach to non-
traditional commercial space activities beyond Earth orbit.
In essence we believe that a commercial space activity should enjoy
``deemed authorization'' unless there is a clearly evident or
meaningful demonstrable impact on national security, U.S. obligations
under international treaties, or harmful interference with others.
Our premise is that the U.S. Government should in principle enact
laws that assure freedom of enterprise in space, making it illegal for
the government to deny or restrict private sector space activity,
provided the activity satisfies three fundamental axioms that should be
the foundations of any U.S. policy governing non-traditional space
missions in or beyond Earth orbit:
(1) no meaningfully demonstrable negative impact on national
security
(2) no harmful interference with existing space infrastructure or
activities
(3) does not breach U.S. obligations under international treaties
And otherwise, whatever Federal body that is in charge of the
application/registration has no legal right to object to it. In other
words, it is ``presumed authorized within predefined boundary
conditions'', and only if those boundary conditions are shown to be
violated would the application go to an interagency 'secondary review'
cycle in which the onus would be on the government to prove that the
boundary conditions are breached in order to deny the application/
registration, accompanied by a proposed enabling solution, which then
would be subject to revision, appeal, etc. We also suggest that a
legally binding time-frame would be imposed on both the first and
secondary reviews, after which the presumed authorization would
prevail.
Public-Private Partnerships
One of the reasons it is vital for the U.S. Government to create
policy clarity and streamline regulatory burdens for commercial lunar
and other nontraditional space business ventures is because in almost
every case, some Federal agency is likely to want to directly or
indirectly purchase a space good or service from these companies.
In our case, we have benefitted from many Space Act Agreements with
NASA which allowed us to learn from the agency and jointly develop new
capabilities based on historic ones. Most of our early Space Act
Agreements with NASA involved us paying NASA for access to technologies
and facilities, but that has evolved in recent years into the use of
no-exchange of funds Space Act Agreements that involve mutual value. In
particular, NASA's Lunar Cargo Transportation and Landing by Soft
Touchdown (Lunar CATALYST) program has provided us significant access
to NASA technologies, facilities, and expertise that is accelerating
our initial mission. The reason NASA is doing this is because they need
less expensive ways to conduct robotic lunar exploration and seek to
spur commercial cargo transportation capabilities to the surface of the
Moon with competitively selected industry partners.
Over the years NASA has funded many existing ``orphan'' payloads
from U.S. scientists that need a ride into lunar orbit or to the
surface. Recent U.S., Indian, Japanese, and Chinese missions to the
Moon have only wetted the appetite of lunar scientists. Given NASA's
primary focus on Mars exploration, it is not likely that NASA will send
another large dedicated spacecraft to the Moon, but it could purchase
rides from commercial providers such as Moon Express.
We are therefore particularly happy about recent announcements by
NASA of potential interest in commercially-provided robotic systems for
science and exploration investigations of the Moon. Extending the
public-private partnership model of commercial transportation services
beyond Earth orbit will enable new growth in U.S. industrial capacity
and capability while introducing the economics of private sector
competitive innovation to deep space and planetary exploration.
As Moon Express' capabilities grow, we can bring back samples from
geologically interesting lunar sites. Eventually, as we grow to begin
to harvest lunar water ice and turn it into liquid hydrogen and oxygen
for propellant and commercial uses, one of the largest customers may be
NASA's human missions to Mars. If NASA (or another agency) wishes to
accelerate a specific capability on our roadmap, then a public-private
partnership such as that used so effectively on cargo resupply o the
International Space Station could deliver results much sooner and
cheaper than a traditional contracting approach.
Public-private partnerships are much more fundamental to the U.S.
Government's goals in space than just serving as a more efficient
procurement method. NASA's organic law mandates that the agency
``promote the fullest commercial use of space''. The vision that
Chairman Cruz has set for these hearings is one of the government
opening the space frontier to commerce and settlement by private
citizens. Therefore, whereas a traditional procurement may or may not
develop technologies with some potential commercial application, a
public-private partnership fosters the emergence of privately-owned,
largely privately-capitalized space goods and services providers who
can and will seek out new markets beyond government customers. That
economic infrastructure which grows out from the government's legal and
regulatory framework and limited public sector investments is what
promises our broader society a hopeful future as our Nation leads the
expansion of humanity into space.
Therefore, creating the right policy environment is vital to
achieving the full strategic benefits of American leadership on the
space frontier. Our nation's entrepreneurs and engineers, students and
scientists, teachers and tourists will follow NASA's pioneering steps
into the solar system carrying American civilization with them.
The U.S. Government needs to create a framework that allows and
encourages U.S. enterprise to invest in utilizing these lunar
resources, or other nations will do so.
American Preference
One concern that has emerged in America's leadership on the space
frontier is that NASA has typically tended to use international
partnerships with other space agencies more than domestic public-
private partnerships to carry out science missions. While Moon Express
certainly supports the national security and foreign policy benefits to
the U.S. from such cooperative scientific projects, it is important for
policymakers to realize that these international efforts can preclude
American commercial participation.
For example, if NASA spends its dollars on helping another nation
learn how to land a spacecraft on the Moon, including the provision of
hardware and launch services for the mission, instead of buying a ride
from a commercial provider, then it is arguably subsidizing the
creation of a foreign capability, while not utilizing a nascent or
extent domestic commercial service. This choice is not a simple matter
of ``domestic preference'' versus international diplomatic benefits,
but one of pursuing space goals that are more relevant to U.S.
commercial providers via public-private partnerships, while more
advanced or purely scientific projects can be internationalized.
The Big Picture
So far, modern humans have been resident on Earth for a few
thousandths of a percent of our planet's lifetime; a microscopic sliver
of planetary history. Civilization as we know it has been around a 100
times less than that. In the last few frames of our planetary cinema,
barely a subliminal flicker, the first artifacts of a technological
civilization have left the atmosphere and can be found on our
neighboring worlds. Some farther than that. If the story of humanity
ended tomorrow, by natural or self-inflicted calamity, these
extraterrestrial human artifacts might be the only remaining evidence
that there was an emergent spacefaring species on the third rock from
the Sun.
The key to our survival as a species, in fact the only key we hold
in the long term, is to evolve into a multi-world species, harnessing
the practically infinite energy and resources of space and easing the
pressure on our planet.
Space is vast, and if we lived on a planet isolated like an island
in an empty ocean, it would be very hard to develop space resources.
But luckily, we are an archipelago with a sister world containing
resources we can utilize. The Moon; our eighth continent, rich in
resources, the gateway to the solar system, is also the gateway to our
future.
Preservation of the Earth and our civilization is precisely the
reason we need to expand our economic and societal sphere into space,
beginning with the Moon and then beyond.
Sixty years ago we began our journey as a spacefaring species. We
need to get a toe-hold back on the Moon, and this time not let go. Moon
Express is dedicated to exploring and unlocking the resources of the
Moon for the benefit of humanity. We're undertaking this goal with
private investment, not on the backs of the taxpayer. The risk is ours.
The rewards will become available to everyone. We will conduct
ourselves responsibly and with respect to national and international
laws. We will avidly support science and exploration of the Moon as we
seek water and minerals. But we're going. And we're thrilled to have
the laws of the United States protecting our activities and backing our
efforts to find new resources that could one day help the economies of
planet Earth and secure our future in space.
It's not just about boldly going; it's about boldly staying. It's
about moving the economic sphere of Earth outward in a way that uses
the material wealth of space to solve the urgent problems we now face
on Earth: to bring the poverty-stricken segments of the world up to a
decent living standard, without recourse to war or punitive action
against those already in material comfort; to provide for a maturing
civilization the basic energy vital to its survival . . . through
freedom of commerce in space.
We are at the cusp of a magnificent adventure, an evolution of our
species perhaps as significant as the evolution of life from the oceans
onto land. Our emergence from Earth into space holds promise and
opportunity, but also dangers of migrating conflict, and for the first
time in human history, an opportunity to conquer a new world without
conquering each other.
The United States has taken proactive measures to support its
private sector and has interpreted the Outer Space Treaty in favorable
ways to the Constitution and founding principles. While the Outer Space
Treaty may appear antiquated in some ways, it is a remarkably visionary
document with profound principles that have served the world well for
decades. I believe time and energy is better spent in continuing to
interpret the Outer Space Treaty in favor of international
collaboration without constraining the rights and benefits of the
freedom of U.S. commercial enterprise in space.
We aspire to the stars. Mars beckons as a second home for humanity.
The Moon is our gateway.
Thank you for your time and the opportunity to present this
testimony.
Senator Cruz. Thank you, Dr. Richards, and I appreciated
your invocation of the mission statement to boldly go where no
one has gone before, or perhaps the most famous split
infinitive in all of history.
[Laughter.]
Senator Cruz. Mr. Marquez.
STATEMENT OF PETER MARQUEZ, VICE PRESIDENT FOR GLOBAL
ENGAGEMENT, PLANETARY RESOURCES
Mr. Marquez. Chairman Cruz, Ranking Member Markey, thank
you very much for the opportunity to come here today and talk
about the Outer Space Treaty. I especially want to thank you
and your staff also for the 2015 passage of the CSLCA. It was a
tremendous event for this community, so thank you.
I come here today representing a multinational asteroid
mining company, Planetary Resources. We exist to extract and
utilize resources from asteroids that are needed for humanity
to create a truly universal space economy, have a permanent
presence in the solar system, and increase the quality of life
for all people living on Earth.
We'll harvest water from asteroids to be used as fuel for
spacecraft and satellites, as life support for a space
workforce, as radiation shielding, and to grow food. We'll
extract metal, which will, in turn, be 3-D printed so that we
can construct nearly anything in space or any component needed;
and we'll provide the fuel and raw materials needed for any
long-term, sustainable, and scalable mission to the Moon, Mars,
and beyond. In the long term, we will bring back extremely
scarce resources, like platinum group metals, to the Earth to
increase the quality of life for everybody.
We'll continue to build upon the great successes that we've
had so far. In 2015, our company began the asteroid mining age
when we launched our first technology demonstration satellite.
In 2016, we used materials from a meteorite to 3-D print the
first object 3-D printed from outer space material. We've built
two follow-on satellites that will be launched soon, and in
2020, we will launch and operate the first ever private deep
space mission. We will also conduct an unprecedented mission to
visit, survey, and prospect several near-Earth asteroids.
Our team that we have is an example of, I think, many of
the commercial space companies here now. Our engineers helped
design, build, and operate a variety of Mars missions to
include all the recent landers and rovers. We have a staff that
comes from a variety of industries, from mining to
semiconductors to planetary science to agriculture to the
automotive industry to the IT community and many more. And
despite what Mr. Schaefer said, we do have a pretty good law
and policy team on staff, too, coming from the State
Department, the United Nations, the White House, and the
national security community.
For Planetary Resources to accomplish this mission, we need
stability and predictability. This nation has a history of not
only supporting commercial space activities, but leading and
implementing the international legal structure that created
that stable and predictable space environment.
During the early negotiations of what would become the
Outer Space Treaty, the U.S. actually fought to include
commercial space activities because they believed it would be
important. On the other side of the argument was the Soviet
Union, which sought to have those operations limited to
governments only. If the U.S. had not promoted those principles
early on, I would not be here, my fellow panelists would not be
here, there would be no Blue Origin, there would be no Virgin
Galactic, no XPrize, and none of the other hundreds of small
businesses that support this community across the country.
This U.S. national space policy was founded on these
principles. Indeed, the principles from President Eisenhower on
have become the foundation of our international legal
environment and the Outer Space Treaty, principles that we as a
nation have held since the dawn of the space age and that
enabled the various space commercial capabilities that we have
now. The treaty has proven to be a flexible foundation for
those activities. Indeed, one of the keys to the treaty's
enduring relevance is that the framers did not attempt to
regulate specific activities. To do so, or today, for that
matter, would be a recipe for obsolescence. Instead, the treaty
establishes foundational principles.
There are now active discussions in the international
community about how to interpret and apply the OST to these
unprecedented activities. The U.S. comes to these negotiations
from a position of strength. For one, the U.S. played a leading
role in the treaty's formation, as I said, and it is this
unbroken consistency of the U.S.'s interpretation of the treaty
and application of the treaty for more than 50 years and across
the past 12 Presidential administrations that is key to our
credibility in this process.
For our company, the value of the international legal
framework is clear. Without it, we'd be trying to operate in a
reality without rules--chaos and anarchy. However, the treaty
must be meaningful and responsive, and in order to do that, we
will need the appropriately interpreted and implemented
national legislation. As I mentioned before, the CSLCA is an
excellent example of how to build upon the foundation of the
Outer Space Treaty with national law.
None of this is to say the treaty is perfect or that it's
complete or that Congress' work is complete. We are concerned,
however, that opening up the treaty will leave our industry
worse off and will overall be to the detriment of national and
international security. And as a brief aside, I would say that
it's worth noting that many of the principles and motivations
espoused in the early U.S. negotiations and garnering support
of the Outer Space Treaty were to protect national and
international security. Again, in my previous occupations, I'd
be remiss in not mentioning the purpose of many of these
things.
My strong recommendation is that we continue to build upon
the Outer Space Treaty with strong national legislation, and
with strong national legislation and international
collaboration, our commercial space industry will continue to
thrive and innovate to broaden our horizons, add to our
knowledge, and improve our way of living on Earth.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Marquez follows:]
Prepared Statement Peter Marquez, Vice President for Global Engagement,
Planetary Resources
Chairman Cruz, Ranking Member Markey, and members of the
Subcommittee, thank you for the opportunity to provide comments on the
vital role of the Outer Space Treaty to our growing space industry.
I represent a multi-national asteroid mining company. Planetary
Resources exists to extract and utilize resources on asteroids that are
needed for humanity to; create a truly universal space economy, have a
permanent presence in the Solar System, and increase the quality of
life for all people living on Earth. Planetary Resources began the age
of asteroid mining in 2015 when we launched the first asteroid mining
technology demonstration satellite. We have built two follow-on
satellites that are currently awaiting launch. In 2020, we will launch
and operate the first-ever private deep-space mission where we will
also conduct a historic and unprecedented mission to visit, survey and
prospect several near-Earth asteroids.
What we do
Our business is to provide resources for people and the products
they will need in space.
We will provide fuel and raw materials that will be integral
to any long-term, sustainable and scalable missions to the
Moon, Mars, and beyond.
We will harvest water from asteroids to be used as fuel for
spacecraft and satellites, life support for a space workforce,
radiation shielding, and to grow food.
We will extract metal which will, in turn, be 3-D printed
into nearly any structure or component needed in space.
Our near-term initiatives are providing fuel to launch providers
for refueling their rockets in space with liquid hydrogen and oxygen we
extract from asteroids. The refueling of rockets in space allows for
significant reductions in launch costs and increased payload capacity
for missions to the Moon and Mars. For example, our analysis shows
cases where refueling a rocket on a Mars mission can decrease the cost
of launching a payload from roughly $40MM per metric ton down to $11MM
per metric ton while simultaneously increasing the maximum payload
capacity from about 3 metric tons to 26 metric tons. Long-term and
permanent exploration is infeasible without space resource utilization.
Longer-term, platinum group metals are also one of our key targets.
They are extremely rare on Earth but in nearly limitless supply on
asteroids. For example, a single 500-meter platinum rich asteroid
contains 175 times the global annual output of platinum or 1.5 times
the known global platinum reserves. Our activities will make these
previous scarce resources ubiquitous and increase the quality of life
for all humanity.
The Context
Less than a decade ago, asteroid mining was still relegated to
science fiction novels or movies. In the span of the past few years we
have been able to harness a confluence of technical development,
increasing scientific knowledge, and reductions in costs to move
asteroid mining from fiction to reality. But there is still much to
learn and do.
The position we find ourselves in today regarding asteroid mining
is not much different than the situation our predecessors found
themselves in over 50 years ago. Many of the technologies that would
define the space age were still in development and there was
uncertainty as to how space activities would evolve. The U.S. had a
firm position that private activities would play a key role in the
future of space. The Soviet Union, on the other hand, sought to have
space operations limited to Governments. If the U.S. had not promoted
commercial space activities in the 1960s I would not be here today, my
fellow witnesses would not be here, there would be no Blue Origin, no
SpaceX, no Virgin Galactic, no XPrize, and none of the hundreds of
small businesses that support our commercial space industry would
exist.
Today, we find ourselves in a time of opportunity. The breadth of
space activities, and the services they provide to people in space and
on Earth, is growing exponentially. This period of unprecedented space
expansion is a product of the stability that we have had in space since
the launch of Sputnik in 1957. Despite global tensions, space has
remained a realm of peace and predictability. That stability, in no
small part, has been assured by the tenets of the Outer Space Treaty.
Through the development of a common agreement with the international
community the foundational precepts of the Treaty have keep the space
domain safe, stable and sustainable for 50 years.
The Value of the Foundations of the Space Legal Regime
For Planetary Resources to accomplish our mission, we need such
stability and predictability, not only in space but also in the
domestic and international legal landscapes. This Nation has a history
of not only supporting commercial space activities but leading and
implementing the international legal structure that allowed it to exist
in the first place.
The U.S. National Space Policy was founded on these legal
principles. Indeed, every President since Eisenhower has espoused the
same principles for space exploration and utilization which, in turn,
became the foundation of our international legal environment and the
Outer Space Treaty.
Given its central role in assuring peace and stability in space,
our success relies very much on the Outer Space Treaty. The consistent
interpretation and application of the Treaty by the U.S. Government
provides a predictable environment in which we can flourish. Since the
dawn of the space age, as new technologies and capabilities have
arisen, the Treaty has proven to be a flexible foundation for space
activities. Indeed, one of the keys to the Treaty's enduring relevance
is that its framers did not attempt to regulate specific space
activities. To do so then--or today, for that matter--would be a recipe
for obsolescence. Instead, the Treaty establishes certain foundational
principles, and a basic legal framework within which space activities
have been addressed through dialogue among States and implementing
legislation by national legislatures.
Perhaps the most crucial dimension of the Outer Space Treaty for
our company is the Treaty's enabling framework for space resource
utilization. At this moment in time, as Planetary Resources brings
utilization of asteroid resources ever closer to humanity's reach,
there are active discussions in the international community about how
to interpret and apply the Outer Space Treaty to these historic
activities. The United States comes to these negotiations from a
position of strength. For one, the U.S. Government played a leading
role in the Treaty's formation. Yet it is the unbroken consistency of
the United States' interpretation of the Treaty, over fifty years and
across the past twelve Presidential administrations, that is the key to
our credibility in this process.
The Importance of Domestic Legislation in the Context of the OST
For Planetary Resources, the value of the international legal
framework for space is clear--without it we would be trying to operate
in an anarchic reality. However, for that regime to be meaningful and
responsive to the advancement and expansion of space technologies, its
tenets must be appropriately interpreted and implemented by effective
national legislation.
Relevant to space resources, the United States has Title IV of the
Commercial Space Launch and Competitiveness Act (CSLCA) which
recognizes the legal right to own resources extracted from asteroids,
in full accordance with international law. Planetary Resources strongly
thanks the Senate, and specifically, this Committee's Members and staff
in developing and passing this law.
The leadership of the U.S. Government, nationally and
internationally, and the steadfast support to commercial space
activities created technological advances that increased our scientific
knowledge, economic prosperity, and international security. That
support continues today as evidenced by this hearing today and the
Committee's continued strong interest in nurturing this industry that
is critical to both national security and economic competiveness.
The Space Resource Utilization Act of 2015 is an excellent example
of the ways the Congress can support innovative, new commercial space
activities by building atop the Outer Space Treaty's basic foundation.
We are confident that U.S. diplomats, strengthened by the United
States' unmatched consistency in interpreting the Treaty, will continue
to engage with the international community and find common direction on
the interpretation of the Treaty in a manner that promotes innovative,
ground-breaking commercial space activities.
Conclusion
Internationally, the 1967 Outer Space Treaty is the backbone of the
stability and predictability of not only the legal landscape, but space
operations themselves. Article VI ensures that all operators, public or
private, from all countries, operate according to a common set of basic
rules. This legal level playing field for all spacefarers is allowing
new space industry to flourish across the globe.
Planetary Resources is proud to be part of one of those new
industries. Utilizing asteroid resources fundamentally changes our
ability to operate in space. Here in the United States, our large, and
growing team, spans five states in addition to our presence in the
Grand-Duchy of Luxembourg. Our investors are from all corners of the
globe and our customers are on Earth and in space. This is an exciting
time.
Space is a global endeavor with profound national-level
implications. We consider that the two legal pillars of a stable
international legal regime agreed to by all global players, the Outer
Space Treaty, coupled with effective domestic legislation that can be
responsive to technological advancements, as typified by the 2015 CSLCA
will allow us to effectively prosper, and will allow others to operate
and compete on a level playing field.
None of this is to say that the Treaty is perfect in every way, or
that the Congress's work in enabling a robust and globally competitive
commercial space sector is complete. We are concerned however, that
opening up the Outer Space Treaty will leave our industry worse off and
will, overall, be to the detriment of national and international
security.
We look forward to continued successful U.S. engagement with
international partners to interpret and apply the Outer Space Treaty to
evolving circumstances, and the continued support of the Congress in
developing timely domestic legislation to support space technology
developments.
Our simple message is that our focus should continue to be building
upon the foundation of the Outer Space Treaty, rather than putting that
foundation at risk.
I thank you Mr. Chairman.
Senator Cruz. Thank you, Mr. Marquez.
Mr. Gold.
STATEMENT OF MIKE GOLD, VICE PRESIDENT,
WASHINGTON OPERATIONS AND BUSINESS DEVELOPMENT,
SPACE SYSTEMS LORAL
Mr. Gold. Thank you Chairman Cruz, Ranking Member Markey,
and the dedicated Subcommittee staff for this opportunity to
discuss the Outer Space Treaty's impact on American commerce
and settlement in space.
I serve as Vice President of Washington Operations and
Business Development for Space Systems Loral, or SSL. SSL is
America's most prolific commercial satellite manufacturer. Over
80 satellites built by SSL are currently in orbit and providing
coverage to the entire populated surface of the Earth. SSL is
also a global leader in space-based robotics, advanced
propulsion, as well as data extraction and analytics.
There has never been a more exciting time to be in the
space industry. Asteroid mining, space tourism, private sector
space stations, and commercial lunar rovers are all
transitioning from science fiction to reality. We are living in
an age of wonders.
Like every other space activity, satellite operations may
be transformed by new ideas and technologies. For example, the
operational lifetime of satellites is nearly always limited by
their fuel supply. This can and will change. Via the Restore-L
program, SSL and NASA are developing robotic LEO spacecraft
that will rendezvous with and refuel satellites. If the
Restore-L mission is successful, it could fundamentally alter
the nature of satellite operations while providing the U.S.
with a vital technological advantage.
Moreover, SSL was selected by DARPA to support the Robotic
Servicing of Geosynchronous Satellites, or RSGS program. RSGS,
an innovative public-private partnership between DARPA and SSL,
will produce a robotic servicing vehicle that can repair
satellites in orbit as well as replace or add new components to
a satellite. Per DARPA's participation in RSGS, satellite
servicing would not only bolster job creation and enhance
American competitiveness, but such capabilities will be
critical for national security.
During testimony before the Senate Select Committee on
Intelligence earlier this month, Dan Coats, the Director of
National Intelligence, stressed that China and Russia are
developing directed energy weapons, missiles, and robotic
spacecraft capable of disabling American satellites in both LEO
and GEO. Restore-L, RSGS, and satellite servicing in general
will substantially bolster the security and resiliency of
America's vital orbital assets, while supporting domestic high-
tech job creation and commercial innovation.
However, satellite servicing and all other forms of new
space activities need funding, and what investors are looking
for is a legal regime that offers certainty, transparency, and
efficiency. Article VI of the Outer Space Treaty requires
nations to provide authorization and continuing supervision of
their private sector space activities. This Treaty obligation
actually aligns with the desire of investors for regulatory
certainty. Investors and insurers need to know that relevant
Federal departments and agencies, particularly the Department
of Defense, the Department of State, and NASA, will not object
to their proposed activities.
Unfortunately, there is no established process for the
Federal Government to provide entrepreneurs with this
regulatory reassurance. Currently, companies, including SSL,
are bringing their innovative space activities to the FAA
Office of Commercial Space Transportation, or FAA AST. The FAA
AST conducts an interagency review and subsequently has
provided companies with what is called a payload approval
letter.
The simplest, least bureaucratic, and most expeditious
means of addressing not only Article VI, but providing
entrepreneurs with the predictability that they desire is for
Congress to direct the FAA AST to establish an enhanced payload
review process that would leverage and formalize the work that
the AST is already successfully conducting. Additionally, when
such payload review approvals are issued, they should contain a
proviso requiring that if substantive changes occur, the
private sector applicant will update the FAA AST. This simple
proviso, in conjunction with the enhanced payload review
process, would be sufficient to meet Article VI's authorization
and continuing supervision requirement.
Even with any Article VI concerns fully resolved, the Outer
Space Treaty still contains a variety of clauses and provisions
that are vague or challenging for private sector operations,
such as Article II and Article XII. Despite these challenges,
it would still be ill-advised for the U.S. to withdraw from the
Treaty or open it up to revisions. Although the Treaty is
imperfect, due to its focus on principles instead of
prescriptive requirements, it has largely stood the test of
time.
The Treaty has provided a foundation that international
space law and public and private sector activities depend upon.
If the U.S. pulled out of the Treaty, it would create confusion
and uncertainty, hindering new commercial developments as well
as established private sector space activities. Moreover,
opening up the Treaty to amendments would risk the
international community inserting even more language that would
run counter to U.S. interests.
Instead, the Department of State in cooperation with the
private sector should engage with likeminded countries,
particularly launching states, to establish bilateral and
multilateral understandings regarding aspects of the Treaty
that require additional clarity and interpretation. Again,
predictability, efficiency, and transparency are the key values
necessary for a successful legal regime. If Congress can do its
part and provide entrepreneurs with the regulatory certainty
that they need, we can all start spending less time with
lawyers and more time on launches.
Thank you for this opportunity.
[The prepared statement of Mr. Gold follows:]
Prepared Statement of Mike Gold, Vice President, Washington Operations
and Business Development, Space Systems Loral
Thank you Chairman Cruz, Ranking Member Markey, distinguished
members of the Subcommittee, as well as the Subcommittee's dedicated
and hardworking staff, for this opportunity to discuss the Treaty on
Principles Governing the Activities of States in the Exploration and
Use of Outer Space, including the Moon and Other Celestial Bodies,
commonly referred to as the Outer Space Treaty (``OST'' or the
``Treaty''). My name is Mike Gold and I am Vice President of Washington
Operations and Business Development for Space Systems Loral (``SSL'').
SSL is America's most prolific commercial communications satellite
manufacturer. Over eighty satellites built by SSL are currently in
orbit providing services to the entire populated surface of the Earth.
Billions of people depend upon satellites manufactured by SSL every
day. Moreover, SSL is a trailblazer in space-based robotics, supporting
a variety of innovative projects with both the National Aeronautics and
Space Administration (``NASA'') and the Defense Advanced Research
Projects Agency (``DARPA''). SSL is also a global leader in space-based
propulsion, leveraging highly reliable and robust systems such as the
1300 bus, a proven workhorse, while advancing the state of the art with
new solar electric propulsion technologies. Earth observation and other
types of satellites are generating an ever-increasing volume of data
that can be leveraged for national security, commerce, and science. SSL
and its affiliated companies have decades of experience extracting
useful information from data through advanced image and signal
processing as well as change detection. SSL provides customers with
complete end-to-end services from satellite manufacturing to data
analysis.
SSL employs thousands of engineers, scientists, and technicians
across the country, and has been a leader in `commercial space' over
many decades. For SSL, and the American commercial space industry as a
whole, to continue to survive and thrive, a regulatory environment that
is conducive to innovation as well as private sector operations and
growth is vital. The OST, which forms the foundation of global space
law, addresses a wide variety of issues and activities. However, the
most relevant portion of the Treaty, which requires immediate action
from policymakers, relates to Article VI.
I. ``Continuing Supervision'' Under Article VI of the Outer Space
Treaty
Article VI of the Outer Space Treaty states in relevant part:
``The activities of non-governmental entities in outer space,
including the Moon and other celestial bodies, shall require
authorization and continuing supervision by the appropriate
State Party to the Treaty.'' (emphasis added)
Authorization and continuing supervision for established commercial
space activities, such as telecommunications or remote sensing, are
currently conducted by, respectively, the Federal Communications
Commission (``FCC'') and the National Oceanic and Atmospheric
Administration (``NOAA''). However, there is no established process for
the United States Government (``USG'') to authorize or supervise new,
innovative commercial space activities.
There has never been a more exciting time to be in the commercial
space world. Private sector space stations, space tourism, asteroid
mining, and commercial lunar rovers are all transitioning from science
fiction to reality. American entrepreneurs are leading the way into
this new frontier, and we are still at the very beginning of what is
certain to be an era of great change and progress. Like every other
space activity, the satellite industry could be transformed by new
technologies and concepts. Specifically, the introduction of robotic
satellite servicing in low Earth orbit (``LEO''), as well as in
geosynchronous orbit (``GEO''), may substantially alter the industry's
existing paradigm.
A. The Importance of Satellite Servicing
SSL is currently supporting two innovative satellite servicing
activities, NASA's Restore-L and DARPA's Robotic Servicing of
Geosynchronous Satellites (``RSGS''). The Restore-L mission is focused
on a robotic spacecraft refueling Landsat-7 (a NASA remote sensing
satellite). SSL satellites are built to last and their operational
lifetimes are nearly always limited due to a lack of fuel. Via Restore-
L, NASA and SSL will demonstrate the ability to overcome this challenge
by delivering fuel to satellites, substantially extending their
lifetimes.
DARPA's RSGS program will focus on repairing satellites as well as
adding and replacing satellite components. Fixing a satellite that has
failed to deploy properly would save American taxpayers hundreds of
millions of dollars. Moreover, the ability to add and/or replace
various components will substantially bolster satellite capabilities,
ensuring that regardless of when a satellite is launched, it can still
take advantage of new technologies. This ability to add components
could also be used to attach payloads that will enable a satellite to
protect itself from tampering or attacks.
RSGS and Restore-L are complimentary activities, each focused on
unique technological proficiencies, although both systems will be
capable of conducting such operations as satellite inspection and
refueling. However, RSGS and Restore-L will operate in two very
different environments. Restore-L will be placed in a LEO Polar orbit
where it will circle the Earth approximately fourteen times per day.
Restore-L will use Tracking and Data Relay Satellite Systems
(``TDRSS'') for communications and will serve as a testbed for
advancing critical space-based robotics and automation to support
future human spaceflight and robotic exploration missions. RSGS will
operate in GEO, where it will orbit the Earth only once per day and
will utilize ground-based communications systems. The primary objective
of RSGS is to enhance the security and resiliency of military
satellites while evolving the state of the art in defense-related
robotics.
Per DARPA's support of RSGS, mastering satellite servicing is
critical to national security. Earlier this month, Daniel Coats,
Director of National Intelligence (``DNI''), made the following
statements for the record to the Senate Select Committee on
Intelligence.
``We assess that Russia and China perceive a need to offset any
U.S. military advantage derived from military, civil, or
commercial space systems and are increasingly considering
attacks against satellite systems as part of their future
warfare doctrine. Both will continue to pursue a full range of
anti-satellite (ASAT) weapons as a means to reduce U.S.
military effectiveness. In late 2015, China established a new
service--the PLA Strategic Support Force--probably to improve
oversight and command of Beijing's growing military interests
in space and cyberspace. . . . Some new Russian and Chinese
ASAT weapons, including destructive systems, will probably
complete development in the next several years. Russian
military strategists likely view counterspace weapons as an
integral part of broader aerospace defense rearmament and are
very likely pursuing a diverse suite of capabilities to affect
satellites in all orbital regimes. Russian lawmakers have
promoted military pursuit of ASAT missiles to strike low-Earth
orbiting satellites, and Russia is testing such a weapon for
eventual deployment. A Russian official also acknowledged
development of an aircraft-launched missile capable of
destroying satellites in low-Earth orbit. Ten years after China
intercepted one of its own satellites in low-Earth orbit, its
ground-launched ASAT missiles might be nearing operational
service within the PLA. Both countries are advancing directed
energy weapons technologies for the purpose of fielding ASAT
systems that could blind or damage sensitive space-based
optical sensors. Russia is developing an airborne laser weapon
for use against U.S. satellites. Russia and China continue to
conduct sophisticated on-orbit satellite activities, such as
rendezvous and proximity operations, at least some of which are
likely intended to test dual-use technologies with inherent
counterspace functionality. For instance, space robotic
technology research for satellite servicing and debris-removal
might be used to damage satellites. Such missions will pose a
particular challenge in the future, complicating the U.S.
ability to characterize the space environment, decipher intent
of space activity, and provide advance threat warning.''
As described by the DNI, potential adversaries are actively
developing weapons to attack satellites in ``all orbital regimes''
while perfecting their own space-based robotics, rendezvous, and
proximity capabilities. The U.S. cannot leave its critical orbital
assets vulnerable to attack and the U.S. Government should be
sponsoring additional follow-on programs to RSGS and Restore-L.
Numerous missions will be needed to successfully develop and implement
holistic satellite servicing proficiencies, ensuring that vital
national security and economic assets in both LEO and GEO are properly
protected.
Moreover, while satellite servicing capabilities are vital, they
are only the first step on the road to even more exciting technological
developments, such as the deployment of persistent platforms.
Currently, roughly eighty percent of an average GEO telecommunications
satellite is comprised of propulsion, power generation, radiators,
redundant parts, and other subsystems that keep the satellite flying
and healthy. Only twenty percent of the mass of most satellites conduct
the revenue generating activity.
We need to reverse this paradigm and reduce the amount of
infrastructure that each satellite requires. The persistent platform
concept accomplishes this by deploying a truss in space, similar to
what was done with the International Space Station. However, instead of
accommodating astronauts and habitats, this truss would contain power
generation, thermal controls, propulsion systems, and connection points
for a dozen or more `plug and play' payloads. Robotic servicing systems
developed via programs such as Restore-L and RSGS would deliver the
payloads (that would support a wide variety of activities including
communications, remote sensing, and space situational awareness) to the
persistent platform for attachment. The payloads would share the
platform's propulsion, power, and other capabilities, removing the cost
and need to construct, launch, and support these systems and subsystems
for each individual payload. Additionally, when a payload becomes
obsolete or fails, the robotic servicing craft will switch out the old
payload with a new one, providing the ability to refresh technology in
a way that is impossible today. This persistent platform architecture
will dramatically lower the cost of orbital operations while enhancing
capabilities. Space Systems Loral is currently investing millions of
its own dollars to further develop this next-generation strategy, which
will play an important role in transforming not only commercial space
operations, but national security and scientific missions as well.
B. The Challenge of Regulatory Uncertainty
For satellite servicing, persistent platform, or any other
technological advances to take place, funding is required. Investors
that will finance such projects crave predictability, transparency, and
efficiency. When a positive regulatory environment is aligned with
technological growth, innovation flourishes. However, as described
previously, there is no established USG process for providing
authorization and continuing supervision of non-traditional space
activities such as satellite servicing. This situation has already
caused confusion and could ultimately lead to programmatic delays and
forum shopping. Currently, the FAA Office of Commercial Space
Transportation (``FAA AST'' or ``AST'') serves as the de facto Federal
entity that companies have gone to for their innovative commercial
activities. Bigelow Aerospace and, most recently, Moon Express, have
leveraged the FAA AST's payload review process to obtain reassurance
that their proposed lunar operations would not conflict with USG
interests or activities. Due to the lack of an established process,
both companies combined their payload review applications with
voluntary disclosures to relevant Federal agencies and departments such
as NASA, and the Departments of Defense and State, to support and
expedite the interagency process. Although I believe that both Bigelow
Aerospace and Moon Express were ultimately satisfied with the end
result, officials at the FAA AST as well as the Departments of Defense
and State, have repeatedly voiced concerns that the current ad hoc
process is untenable and may result in negative payload reviews if
Congress does not provide additional direction to clarify jurisdiction
and establish relevant procedures.
Entrepreneurs pursuing daring new concepts have helped to
revitalize the American aerospace sector and will carry this Nation
into the future. However, innovative commercial space activities
require funding. Internal and external investors, as well as insurers,
need to know what, if any, regulatory risks a particular project will
face before financing an initiative. Therefore, the lack of a defined
process for non-traditional space activities is anathema to investors
and insurers alike. Non-traditional commercial space operations
inherently involve many risks. Businesses and investors that are
already embracing trailblazing activities should not be asked to also
bear the added burden of regulatory uncertainty. The U.S.'s regulatory
environment should encourage growth and investment, whereas the current
lack of an established process creates yet another challenge for
entrepreneurs to overcome. For example, the existing lack of defined
deadlines, explicit areas for review, and transparency requirements all
empower the bureaucracy while leaving companies with little to no
recourse to gain the certainty they need to obtain funding and execute
their business plans. Congress should take action with alacrity to
address this challenge and remove a potentially problematic barrier to
entry.
C. Enhanced Payload Reviews
As noted previously, the FAA AST already has the authority to
conduct payload reviews. Despite the lack of an established process,
the AST has successfully executed these reviews for non-traditional
commercial space activities. The AST has a great deal of experience
conducting interagency reviews in an effective and expeditious manner,
and while no process is perfect, my professional experiences working
with the AST has been overwhelmingly positive. Instead of creating new
bureaucracies and needlessly spending additional taxpayer dollars,
Congress should support a concept that was initially proposed by
Congressman Jim Bridenstine, to simply expand the existing payload
review process to include non-traditional space activities. This
`enhanced' payload review process represents the most expeditious, cost
effective, and least disruptive strategy to address America's Article
VI obligations. Congress could direct the AST to augment payload
reviews in this manner, while also establishing a presumption of
approval, deadlines, and other forms of protection to support an
efficient process. Again, the AST is essentially doing this work
already and has demonstrated the ability to successfully execute a non-
traditional interagency payload review.
The enhanced payload review process would provide an elegant and
effective means of addressing Article VI's requirement for
authorization and continuing supervision of non-traditional space
activities. By providing a governmental review and approving a payload,
the `authorization' component of Article VI is clearly met. The
`continuing supervision' obligation could similarly be addressed in a
relatively simple fashion by including a proviso in a payload review
approval letter requiring that if the proposed non-traditional space
activity substantially changes from what was described in the payload
review application, an update must be provided to the AST. This simple,
benign clause, would be sufficient to address Article VI's continuing
supervision requirement, and I believe that the relevant attorneys and
policy leadership at the Department of State would agree with this
contention.
An enhanced payload review approval is especially helpful to
entrepreneurs since, via the interagency process, the approval carries
with it the support of both the Department of Defense and the
Department of State. While NASA, the Department of Commerce, the FCC,
and other agencies are also part of the payload review process, it is
particularly important to have a mechanism for the Departments of
Defense and State to be able to provide feedback. Companies need to
know that their proposed activities will not interfere with Defense
and/or Intelligence Community operations. Similarly, it is vital that a
review process include an avenue for the Department of State to provide
input relative to international treaty obligations. Ensuring that
neither the Departments of Defense or State will object to a commercial
space activity taking place is vital for entrepreneurs to obtain the
regulatory certainty that they need to raise funds and execute
innovative programs.
Again, regulatory certainty is vital, and even if the U.S. were not
a signatory to the OST, entrepreneurs would still need the enhanced
payload review process to ensure that their operations could proceed
without fear of objection from Defense, State, or other USG departments
or entities. Moreover, the Enhanced Payload Review process provides a
mechanism to de-conflict domestic private sector activities, ensuring
that non-traditional commercial space operations can occur without fear
of interfering with each other.
The Enhanced Payload Review process also provides the private
sector with protection against a more pernicious interpretation of the
OST's `continuing supervision' requirement. In the realm of export
control, USG supervision was often implemented in a counterproductive
and even irrational manner. The Enhanced Payload Review process would
establish a commonsense means of meeting U.S. obligations under Article
VI, while also providing the private sector with the regulatory
certainty that it needs regardless of any treaty obligations.
II. Problematic and Unclear Aspects of the Outer Space Treaty
A. Article XII
Article XII of the OST states that:
``All stations, installations, equipment and space vehicles on
the Moon and other celestial bodies shall be open to
representatives of other States Parties to the Treaty on a
basis of reciprocity. Such representatives shall give
reasonable advance notice of a projected visit, in order that
appropriate consultations may be held and that maximum
precautions may be taken to assure safety and to avoid
interference with normal operations in the facility to be
visited.''
It is likely that when the OST was drafted fifty years ago, private
sector space stations, lunar facilities, and commercial transportation
vehicles were not contemplated or even imagined. However, what was once
science fiction is now becoming reality, and Article XII's requirement
that foreign representatives be allowed to visit such facilities or
spacecraft represents an unreasonable and possibly illegal demand for
the USG to make upon the private sector. As a matter of fact, if a
private sector company complies with Article XII, such actions could
violate domestic export control laws depending upon the nationality of
the visiting foreign representative. Although the U.S. has and should
continue to support the peaceful development of space and encourage
international cooperation and comity, due to the development of non-
governmental spacecraft and the potential for future private sector
orbital and/or lunar facilities, the requirements of Article XII
warrants attention.
B. Unclear Aspects of the OST
There are several aspects of the OST that remain vague and/or are
open to interpretation. For example, Article I of the Outer Space
Treaty states in relevant part that:
``The exploration and use of outer space, including the Moon
and other celestial bodies, shall be carried out for the
benefit and in the interests of all countries, irrespective of
their degree of economic or scientific development, and shall
be the province of all mankind.''
Although nothing in the OST prohibits commercial activities,
language such as this has been raised by some nations to justify calls
for the mandatory sharing of any economic benefits gained by private
sector entities via outer space operations. Conversely, the U.S. and
many other nations would interpret this clause to support free access
(which is referenced later in Article I) to all countries for the
exploration and use of outer space.
Additionally, Article II of the OST states that:
``Outer space, including the Moon and other celestial bodies,
is not subject to national appropriation by claim of
sovereignty, by means of use or occupation, or by any other
means.''
Some nations have interpreted this language to prevent the
extraction and utilization of space resources by the private sector, or
to create a global system of benefits distribution per the language
cited previously in Article I. The U.S., and many other countries, do
not share this interpretation of Article II and, per the Commercial
Space Launch Competitiveness Act, contend that the utilization of
extraterrestrial resources by the private sector does not conflict with
Article II or any other aspect of the OST. During the most recent
meeting of the United Nations Committee on the Peaceful Uses of Outer
Space (``COPUOS'') Legal Subcommittee, the issue of asteroid mining and
Article II were discussed at great length. Again, Article II does not
prohibit or even limit asteroid mining or similar activities on other
celestial bodies, but this debate and issue also warrants continued
attention.
III. The Benefits of the Outer Space Treaty and the Dangers of Revision
The Outer Space Treaty provides the fundamental underpinnings for
international space activities. As described previously, there are
aspects of the Treaty that are imperfect and open to interpretation,
but despite the passage of fifty years, the OST has generally withstood
the test of time. The reason for this can be found in the name of the
OST itself. Specifically, The OST is a ``Treaty on Principles''. The
OST lays out general principles such as the prohibition of weapons of
mass destruction, the prevention of one country interfering with
another country's space operations, and nation's supervising non-
governmental activities. The OST is not a proscriptive document and, in
a manner that is similar to federalism in the U.S., the Treaty provides
each nation with the freedom to meet its obligations in their own way.
For example, Article VI does not dictate how countries should supervise
private sector operations, it simply states that supervision should
take place, and leaves it to individual countries to adopt laws and
regulations that best suit their own unique needs and circumstances.
This inherent flexibility and adherence to simple, core principles, is
why the OST has survived for fifty years and is as relevant today as it
was in 1967.
Again, investors, insurers, and the private sector in general need
certainty and predictability. For a half century, the OST has provided
a stable framework for global space operations that public and private
organizations alike have come to depend upon. The U.S. dropping out of
the OST would result in a period of great uncertainty and international
confusion, hindering the development and growth of both new and mature
commercial space activities.
As described previously, there are certainly aspects of the OST
that are in need of clarification. It is important for U.S.
policymakers to vigorously engage in the dialogue surrounding Articles
I, II, and XII, and I am grateful to the Subcommittee for raising the
profile of these issues. However, opening up the OST to revisions would
likely only result in more language being inserted into the Treaty that
would run counter to U.S. interests. There are 84 nations that belong
to the COPUOS, and many of them do not share the U.S.'s desire to
bolster commercial space development. Therefore, opening up the OST
would create additional uncertainty for public and private space
operations while running the risk of new language being inserted into
the Treaty that would hinder commercial space development.
Alternatively, if the U.S. were to drop out of the OST, it would
undermine international obligations that support American interests
such as the prohibition on weapons of mass destruction in space.
IV. Addressing Outer Space Treaty Issues Without Revising the Treaty
In lieu of actually changing the language of the OST, the
Department of State should meet with industry to identify aspects of
the OST that need to be addressed. Subsequently, State, in conjunction
with industry, can reach out to like-minded nations, focusing on
launching states, to establish a consensus via bilateral and
multilateral correspondence and agreements. This strategy would help to
clarify and address any shortcomings of the OST, without running the
risk of opening the Treaty up to modifications that would further
hinder commercial development.
The Department of State should be commended for aggressively
reaching out to the private sector. As Chair of the Commercial Space
Transportation Advisory Committee (``COMSTAC'', the Federal advisory
committee to the FAA AST), I have joined the U.S. delegation during
COPUOS sessions and have been consistently impressed with the
leadership the Department of State has shown in vigorously defending
private sector interests. Under the stewardship of Secretary of State
Rex Tillerson, who of course has substantial experience in both
international relations and exploring the development of new resources,
I expect that the Department of State will continue to work closely
with the private sector to grow domestic commercial space activities
benefiting both the U.S. and the world.
However, additional industry feedback is always helpful, and the
Department of State may want to consider establishing a Federal
Advisory Committee, similar to the COMSTAC, to provide the Department
with independent input, guidance, and advice. Members of such an
Advisory Committee could be nominated by the Director of the Office of
Space and Advanced Technology for review and approval by the Secretary.
The Department of State already actively consults with numerous
companies and trade associations, and creating a Federal Advisory
Committee would formalize this process, ensuring a continued strong and
productive relationship between the Department and the commercial space
sector.
V. American Policy Leadership
When the U.S. leads in space exploration and utilization, the world
benefits. Furthermore, U.S. leadership should not be limited to
technological advances, but must also include policy development. The
U.S. has an opportunity to demonstrate how nations can address their
Article VI obligations, establishing a model for other countries to
follow, and I therefore urge the Subcommittee to address this issue
with alacrity. Innovative space operations such as private sector space
habitats, asteroid mining, commercial lunar rovers, and satellite
servicing are all transitioning from dreams into reality. Yet, the
question remains, where will these activities occur and which nations
will benefit. Again, when a positive regulatory environment is aligned
with technological growth, innovation flourishes. Countries such as the
United Arab Emirates have already developed holistic national space
laws that comply with the OST while empowering entrepreneurship.
Similarly, Luxembourg has leaned forward and has not only developed
laws that support asteroid mining, but is actually investing government
dollars to fund such commercial endeavors. The U.S. should learn from
the UAE, Luxembourg, and other nations to adopt a regulatory regime
that implements and improves upon global best practices. American
entrepreneurs, investors, engineers, and scientists are doing their
part to create a bold new future for our country in the final frontier.
Now we need Congress to support aerospace innovation by establishing a
regulatory regime that provides certainty, transparency, and
efficiency.
I appreciate this opportunity to testify before the Subcommittee
and look forward to your questions.
Senator Cruz. Thank you, Mr. Gold.
Colonel Melroy.
STATEMENT OF PAMELA MELROY, U.S. AIR FORCE (RETIRED), AND
FORMER ASTRONAUT
Colonel Melroy. Thank you, Chairman Cruz, Ranking Member
Markey, and your superb staff, for inviting me here today. It's
a privilege to be here to discuss this important topic.
Today, I'd like to talk about satellite servicing.
Satellite servicing is not new. As a NASA astronaut, I had the
privilege of conducting and overseeing robotic activity on the
space shuttle and during the construction of the International
Space Station. To date, only the space shuttle, ISS, and the
Hubble space telescope were designed to be serviced, and all of
these activities occurred in low Earth orbit.
From a commercial perspective, the high-value orbit is
geosynchronous Earth orbit, GEO, home to hundreds of the most
valuable commercial and national security satellites. These
satellites are 36,000 kilometers from the surface of the Earth.
If they experience any issues today, they cannot be repaired,
losing valuable revenue or national security capability. GEO is
a hugely impactful place to take the capability of servicing,
and several companies have announced ambitions to develop those
capabilities.
Satellite servicing starts with what is called rendezvous
and proximity operations, RPO. Two spacecraft begin thousands
of kilometers from each other and use a powerful suite of
sensors to perform precise navigation to converge their orbits
within a centimeter of accuracy. In the most challenging cases,
robotic operations will be required, nudging a solar array or
aperture that failed to deploy, or even replacing a failed
system on a satellite.
These activities can spectacularly restore capability, but
are potentially perilous to both the servicer and the client
satellite. Improper actions or inadvertent error can generate
orbital debris, which is a danger to all spacecraft. This
potential for debris generation provides a clear connection to
the Outer Space Treaty's Article IX references to harmful
contamination and harmful interference, which the U.S.
Government is obligated to avoid.
Given Article VI's requirement for continuing supervision,
I think commercial satellite servicing must have some form of
scrutiny by the Federal Government to protect the
sustainability and the safety of the space environment.
However, as has been mentioned by several today, should this
oversight regime be too onerous, the initiative will simply go
to other countries. Having other countries set norms around RPO
that may not be based on a technical or safety basis could be
very damaging to both national security and to our economic
interests.
At the FAA's Office of Commercial Space Transportation, I
learned that a simple regulatory change, even editorial, takes
a minimum of 2 years. A complex rule can take five or more
years to achieve. This is a nightmare in the face of rapidly
evolving technologies and business plans.
However, I also saw the use of industry consensus
standards. Industry standards allow companies to be an advocate
for their innovative technologies and business plans. Standards
can be updated much more easily and, long-term, they could be
helpful in enabling regulations that are performance-based and
not prescriptive.
When I was at DARPA, I helped initiate a joint program with
NASA called CONFERS, the Consortium for Execution of Rendezvous
and Servicing Operations. The goal of the program is to fund a
consortium to bring together technical experts across industry
and government to develop consensus technical standards for
rendezvous and servicing. These standards could provide a basis
for evaluating compliance with the Outer Space Treaty by the
U.S. Government and may prove a successful model for future
oversight of other areas as well.
A few other comments regarding that oversight. Today, most
cameras in space are pointed down at the Earth, not at other
satellites. Any oversight must consider the powerful suite of
sensors carried by satellite servicers to accomplish RPO with
respect to the protection of national security operations and
proprietary commercial information. For national security,
it'll be critical to verify that a commercial satellite is, in
fact, acting cooperatively when it approaches another satellite
and is operating in a predictable way to prevent
misunderstandings.
Verification of RPO activities will likely be the most
stressing case for space traffic management. A single window to
industry for authorization and verification of servicing
operations seems best.
Thank you, Mr. Chairman, for the opportunity to discuss
this important and exciting topic.
[The prepared statement of Colonel Melroy follows:]
Prepared Statement of Pamela A. Melroy, NASA Astronaut, retired
Thank you Chairman Cruz, Ranking Member Markey, distinguished
members of the Subcommittee, and your superb staff for inviting me here
today. It's a privilege to be here to discuss this important topic and
to be with eminent colleagues and friends who are as passionate as I am
about commercial space. I am thrilled that this committee has taken on
the important work of considering the Outer Space Treaty and
appropriate oversight of commercial space activities in the Unites
States.
There are many exciting activities and proposals in commercial
space. With respect to the Outer Space Treaty, I am deeply concerned
that we would be opening a Pandora's Box by attempting to change it. My
concern is that the likely outcome would be a lack of consensus,
resulting in no amendments. Instead, we will have a weakened dedication
to the Principles of the Treaty and the sustainability of space. Great
changes are occurring and many countries are developing capabilities
that previously were the purview of only a few nation states. Our
ability to compete both economically and technologically in space is
crucial. These Principles form the basis for the dialog that we have
with other countries about what is appropriate and what is not. Without
them, the dialog becomes chaos.
Today I would like to discuss a specific activity--satellite
servicing. Satellite servicing itself is not new. As a NASA astronaut,
I had the privilege of conducting and overseeing robotic activity on
the Space Shuttle and the International Space Station (ISS) during its
construction, and the opportunity to observe my colleagues conduct
extraordinary work on the equally extraordinary Hubble Space Telescope.
I saw first-hand the power of the capability to inspect, repair, and
upgrade satellites. To date, only the space Shuttle, ISS, and Hubble
have been designed to support being serviced, and all of these
activities occurred in low earth orbit. Low earth orbit (LEO) is
conducive to tele-operation (think ``joystick'') of robotic arms by
astronauts in space, who can observe out the window and use real-time
video. In addition, ground operators have proven capable of performing
robotics in virtually real time from the ground to LEO. Advances in
technology now permit impressive levels of autonomy that are less
reliant on the intense supervision of humans that can only occur in
LEO. These advances in autonomous rendezvous and docking, and greater
levels of autonomy in robotic task performance now provide the
potential to push satellite inspection and repair beyond LEO.
From a commercial perspective, the high value orbit is
geosynchronous earth orbit (GEO), which is home to hundreds of the most
valuable commercial and national security satellites. Commercial
revenues from GEO satellites exceeded $110 billion in 2015, according
to the Satellite Industries Association. These satellites reside 36,000
kilometers from the surface of the earth; at present, if they
experience any issues they cannot be repaired, losing valuable revenue
and national security capability. GEO is a hugely impactful place to
take the capability of servicing. And several companies have announced
ambitions to develop these capabilities, either on their own or in
public-private partnerships with the government.
Let's break down the term ``satellite servicing'' into the
operations terms that best describe the kind of activities that
actually occur during servicing. The first is getting close to the
client satellite that you intend to service. This intentional bringing
together of two objects in orbit is called, in space parlance,
rendezvous and proximity operations (RPO). It begins with two
spacecraft thousands of kilometers from each other and the
orchestration of a suite of sensors to perform precise navigation to
converge orbits to a specified location within a centimeter of accuracy
on final docking to the client (should it be required). In the most
challenging cases, some sort of robotic operations will be required--
nudging a solar array or aperture that failed to deploy, grasping a
fouled thermal blanket, even replacing a failed system on a satellite.
These activities are massively impactful in restoring capability,
but potentially perilous to both the servicer and the client satellite.
The consequences for improper actions or inadvertent error during
either RPO or robotics are not just the damage to one or both
satellites, but more critically the generation of debris. This orbital
debris can cause additional damage to the servicer or client, creating
even more orbital debris, and it can float away and damage other
spacecraft in the same or lower orbits.
The safety issues associated with these space operations are not
trivial--in fact I would argue that servicing is the activity most
dangerous to space sustainability of any of the proposed commercial
operations. NASA and national security operators have demonstrated the
capability to safely perform rendezvous and proximity ops, and NASA has
perfected and mastered space robotics operations during Hubble repairs
and the construction of the ISS. As commercial servicing operations go
into business, what assurance do we have of their safety?
These operations are challenging, but the government and its
contractors do have over fifty years of experience in this area. In
fact, today commercial satellites are safely performing RPO and
collaborative robotics with a government satellite. That's thanks to
NASA's Commercial Cargo program, where industry has proven capable of
maneuvering cargo vehicles in close proximity to the ISS, where they
are grappled and docked by astronauts. NASA has proven that the safety
and policy issues can successfully be addressed via the contract with
the government and these commercial providers. The same companies
providing services and performing RPO at ISS are also developing
business to service commercial satellites. While we can expect
technologies and best practices should transfer, when a commercial
provider is servicing another commercial provider and no government
experts are involved, how will the government be confident they will be
adhered to? That is essence of what I want to talk about today.
The potential for debris generation provides a clear connection to
the Outer Space Treaty's Article IX reference to ``harmful
contamination'' and ``harmful interference'' which the U.S. Government
is obligated to avoid. Given Article VI's requirement for continuing
supervision, I think that commercial-on-commercial satellite servicing
operations must have some form of scrutiny by the Federal Government to
protect the overall sustainability and safety of the space environment.
The lack of clarity on regulatory oversight creates financial and
regulatory risks for industry, and diplomatic risks for the U.S.
Government.
However, should this oversight regime be too onerous, the business
advantage will simply go to other countries. Other nations will pursue
this technology whether or not the U.S. does. Having other countries
set norms in this area is potentially extremely damaging to both
national security and to our economic interests. The U.S. Government
must provide support and clarity to enable these new businesses both
for the benefit of our satellite systems and benefit for our economy.
So what should be considered when planning oversight
responsibilities?
I'll point out again that NASA and its commercial partners are
operating just fine right now. Whatever solution is devised, it should
not add new layers of oversight onto previously existing arrangements,
or reduce any government agency's authority and flexibility to
accomplish their mission.
From a governance perspective, there are significant national
security implications to these activities. It will be extremely
important to verify that operators are trained to prevent debris
generation--that is obvious. But it's also important to national
security to verify that a commercial satellite is in fact acting
cooperatively when it approaches another satellite, and is operating in
a predictable way to prevent misunderstandings. In the long term,
verification of proper behavior--and attribution of improper behavior--
will also be necessary. Unfortunately, the ability to have real-time
information about the space domain--all space objects, at all orbits,
at all times--is a challenge that has yet to be overcome. Tracking and
verification of RPO activities will likely be the most stressing case
for space traffic management technical capabilities--far more difficult
than predicting potential collisions with debris in slow-changing
orbits. As discussions inside the government continue about who should
be responsible for space traffic coordination, please consider that
those activities will have to be closely coordinated with any servicing
oversight. It seems best to consider having a single window to industry
that oversees both the authorization and the verification of servicing
activities.
Another consideration is that national security satellites do not
like having their picture taken. This is not shyness, but in fact
needed protection of our capabilities and support for operational
activities on the ground. Commercial satellite operators turn out to be
just as concerned on this point. A competitive advantage may be gained
by learning exactly what equipment a specific satellite is carrying and
if there are any failures evident. Today most cameras in space are
pointed down at the earth, not at other satellites. Any future
regulator must consider the powerful suite of sensors that servicing
satellites carry to accomplish RPO with respect to the protection of
both national security operations and proprietary commercial
information.
In terms of what oversight should look like to industry, careful
thought and caution is needed. At the FAA's Office of Commercial Space
Transportation, I learned that a simple regulatory change--even
editorial--takes a minimum of two years to accomplish if you simply put
the days required by the process end to end. A complex rule--even the
revocation of a rule--can take five or more years to achieve. This is a
nightmare in the face of rapidly evolving technologies and business
plans. One process I observed at the FAA on the aviation side was the
use of standards which the FAA scrutinized, then issued a statement to
advise that compliance with the standard was adequate to meet the
intent of corresponding simple, performance-based regulations.
Standards can be updated much more easily and a relatively short
process used to validate that they continue to meet the intent of the
regulations. Standards can be tremendously helpful in enabling
regulations that are performance-based, and not prescriptive.
At this time, there is no single agency with clear authority to
oversee all of these types of on-orbit activity. As has been described
by others, the FAA has launch and entry oversight. The FCC has spectrum
oversight. NOAA has oversight of remote sensing of the earth. But even
if today, with a mighty penstroke Congress decided to issue such
authority, none of these agencies yet has the resources--including
operational experts in these areas--needed to perform oversight of
specialized activities like RPO and robotics. It will take years to
develop regulations, and these regulations may be outdated by the time
they are passed.
It is my assertion that industry consensus standards can fill in
the gap and provide a basis for evaluating safety by future regulators
when they do have this authority. Industry must be involved from the
beginning and provide the advocacy for their innovative technologies
and business plans. Industry consensus standards will allow an agency
tasked with oversight to consider and nurture these needs, while still
being mindful of best practices learned over decades of government
servicing activities.
It might appear that the wholesale transfer of NASA's safe
operating procedures and ``flight rules'' could solve the problem.
However, these operating procedures are written with the specific
design of the client satellite--in this case, ISS--in mind. The size of
the solar arrays, and the desire not to spray them with the outflow
from the thrusters of the approaching spacecraft, and similar
constraints dictate the approach corridor, keep out zones, and safety
gates. One example of the difference between a flight rule and a
standard which applies to all vehicles is the concept of a passively
safe orbit. A passively safe orbit means that you have designed the
approach using orbital mechanics that will allow the two spacecraft to
pass by each other harmlessly with no collision. At some point you then
initiate the final approach which will result in docking. Keeping that
point as late as possible limits the amount of time that you are
exposed to the risk of collision if there is a failure on either
spacecraft or a loss of communications. The size of the client
spacecraft dictates the distance at which you can continue to be
passively safe. Therefore, a standard would not give a distance;
rather, it might state that approaches should be passively safe until
as late as practical. This is but one example of how government know-
how can be translated into standards. NASA experts carry the vast store
of knowledge we have about RPO in low earth orbit, and robotic
servicing operations. Other experts around the government have also
been involved in various RPO activities. Government experts must also
be involved in the development of these standards.
So if this model is such a paragon, why isn't it in practice today
in other areas of commercial space? The good news is that the
advantages of industry consensus standards is well understood. The
Commercial Space Transportation Advisory Committee (COMSTAC), the FACA
committee advising the FAA is working on standards around a variety of
areas that the FAA already has jurisdiction over. It was recently
announced that ASTM International has formed a working group to develop
a standards roadmap for commercial space.
RPO and servicing are arguably a very small part of the range of
commercial space activities, but a vital one, and require the attention
of specialists. When I was at DARPA, I advocated for and helped
initiate a joint program with NASA called CONFERS--Consortium for
Execution of Rendezvous and Servicing Operations. The goal of the
program is to fund the creation of an industry/government consortium to
develop non-binding consensus technical standards for safe rendezvous
and servicing operations. I emphasize technical, because it is not the
intent for these standards to incorporate policy guidance or
preferences for behavior, but physics and operational safety-based best
practices.
Often standards development is hindered by the lack of funding for
administrative support; technical experts are willing to have
discussions but there is less interest in the administrative tasks of
writing everything down, tracking issues to be resolved, etc. If it's
no one's ``day job''--much less full-time day job--the process can take
many years. By funding an Executive Director and a standards
organization to provide the persistent leadership to develop this
special set of standards, CONFERS will ensure that the effort will more
quickly produce those standards. I believe that this approach will
enable the U.S. government to have a technical and safety basis for
understanding servicing activities when oversight is eventually put
into place. This approach may prove a successful model for future
oversight of other areas as well under the Outer Space Treaty.
Thank you for the opportunity to discuss this important and
exciting topic with you, and I look forward to lending my technical
expertise to the discussion.
Senator Cruz. Thank you, Colonel Melroy.
Thank you to each of you for very helpful testimony. Let me
start with a question that we asked the preceding panel as well
to each of you, which is: Should this committee take up
legislation to provide greater certainty and predictability and
clear incentives for the private investment of resources in
space, and, if so, what should the contours of that
legislation, the contours of any such regulatory regime be, and
to what extent does the Outer Space Treaty serve as a barrier
to doing so?
Mr. Richards. Well, perhaps, Mr. Chairman, I could start.
Having lived the dream and come up against the stark reality
that we had a mission planned, we had investors invested, but
didn't have a way forward at the end of 2015. Not that the
government--there was anybody that didn't want to say yes.
There was just no mechanism to do so.
So we were able, through months and months of expensive and
time-consuming effort, both on our company's executive side and
the great people throughout all the interagency Federal
stakeholders, found a solution, but a temporary patch in this
mission approval. However, the mission approval was--once it
was given, it was made clear that it was a one time only thing
for our one company, for our one mission, and although there
would be a proactive desire to continue that type of support,
there was no guarantee that it could be done again.
So we need a certainty. Here we are, about to execute on
our first lunar mission, planning further missions--and, Mr.
Chairman, you mentioned those peaks of eternal light on the
Moon. Those are, indeed, the destinations that we are looking
at for our second mission, and we have yet to have a certainty
of process in order to gain the Article VI authorization and
supervision to go there.
So I did recommend a light-touch regulatory environment
that promotes certainty with a minimum of regulatory burden.
Inaction or nothing is not enough. And we have found a way
through existing protocols with a little bit more voluntary
disclosure to find a way through. So perhaps that's a data
point for the models that will be helpful in the more permanent
solutions that are found in the future.
Senator Cruz. And, Dr. Richards, let me follow up on your
answer there. My understanding is that your mission approval
from the FAA states, quote, ``The FAA made a favorable payload
determination for this particular mission. However, not all
non-traditional space missions may lend themselves to favorable
payload determinations under the payload review authority in 51
U.S.C. 50904. Future missions may require additional authority
to be provided to the FAA to ensure conformity with the Outer
Space Treaty.''
My question is: What impact did that statement have on Moon
Express and the certainty you need to continue to receive
funding from investors to facilitate future missions?
Mr. Richards. That letter was written on July 20 of 2016,
which was a venerable date, of course, for that to happen. It
was great news that the authority was given for that once. It
was an indication that it was possible, but it was certainly
not an indication of certainty for the future.
We are moving forward with the belief that the United
States will continue to find a way. These hearings and the
conversations that are underway right now are giving us great
hope that these things will happen. Our colleagues in other
industries want to go to asteroids and want to go to Mars. We
want to go to other destinations, too, and it's going to start
happening fast and frequently. So although we're not there yet,
I have confidence that these conversations and others will lead
to a permanent solution that we can all live with and flourish
with.
Senator Cruz. Do others have thoughts on this?
Mr. Gold. Senator Cruz, if I could----
Senator Cruz. Sure.
Mr. Gold. The language that you just quoted is actually
much more frightening for those coming afterward than it was
for the company that received it, and we certainly fall into
that category. This is not science fiction. This is not
academic. These satellite servicing missions are happening,
both RSGS and Restore-L, in LEO and GEO, both of which are
critical orbital domains. Satellite servicing is a race that we
cannot afford to lose in America, whether it's for national
security, commerce, or both.
Our experience is that we are in a state of relative
confusion. We don't know what agency will be responsible. You
have already heard negative reactions to the status quo and
what has occurred. We need certainty, because our investors
want it, insurers want it. The private sector must have it, and
we don't have sufficient certainty now, which is why we implore
you to take action.
Now, that action should be based upon common sense, it
should be balanced. Just to go back to the Connecticut
analogy----
Senator Cruz. Common sense. I'm sorry. This is Washington.
[Laughter.]
Mr. Gold. I know. Hope springs eternal in a science fiction
fan, Senator.
We don't want to see the Federalization of Connecticut, as
described before. But there should be a speed limit. Now, I've
been to Connecticut. They don't abide by that, but,
nonetheless, it's helpful.
I believe we should take the existing procss at the FAA AST
and ensconce and formalize it. It's working. I think both Dr.
Richards and I had positive experiences with it. What we don't
want to see is whole new bureaucracies stood up, new
requirements, new licenses, new processes. We have a system
that is working. Let's ensconce it. Let's proceed.
And relative to your question about the Outer Space Treaty,
there is actually an alignment here between the private
sector's desire for certainty and the requirements of Article
VI. By going the simple route and just creating the enhanced
payload review process at the FAA AST, we can solve both at
once.
Part of the reason I'm so concerned about Article VI is not
because of today. I think the Department of State and the
Department of Defense have done a great job. But it's because
of tomorrow. No two words in the English language scare me more
than ``continuing supervision,'' particularly when it comes to
the government.
Per the example of export control, we saw the worst of what
continuing supervision can mean. When we would travel to
Russia, I would travel with a number of U.S. Government
officials breathing down our necks, monitoring every word that
we would say, and we had the pleasure of paying for the
privilege, $150 per monitor per hour. We would joke with the
Russians that the KGB may have spied on you back in the day,
but at least they had the good courtesy to do it for free.
[Laughter.]
Mr. Gold. So we need a regime that locks in this, dare I
say it, common sense approach because if there's some sort of
crisis--and this is what happened with export control, there
was an incident, and when that occurs, then you get bad policy.
You get knee-jerk reactions. So let's take this time now to
create a system that benefits national security, benefits the
private sector, and meets our Article VI obligations.
Senator Cruz. So let me ask two final questions. The first
is: If there should be an agency in charge of implementing
these rules, what agency should that be?
And the second question, I want to address specifically to
Mr. Marquez, which is that Planetary Resources is establishing
a European headquarters in Luxembourg to conduct research and
development activities in support of commercial asteroid
prospecting. I want to ask how does the competitiveness in the
United States compare to Luxembourg and other jurisdictions,
and what can we do to ensure that America remains the most
competitive place in the world for commercial space
entrepreneurs? Either or both of those questions.
Mr. Gold. I'll take the first question and then turn the
other over to Peter. Relative to the agency, please don't make
me go to any more agencies. I go to enough as it is. The FAA
Office of Commercial Space Transportation has demonstrated that
it's capable, it's willing, and it can be successful in running
an interagency process, because, ultimately, it's never going
to be a single agency. We're going to have to go to Defense.
We're going to have to go to the Department of State. What I
need is a single belly button, a single door, an ombudsman to
the rest of the Federal Government so that, like Dr. Richards,
we don't have to go to every single agency ourselves as a
private sector entity.
Via the enhanced payload review, the AST has proven it can
talk to those other agencies, bring them together, and get
through the process. So I would like a single front door for
the government, and then for that agency to go to the other
departments with interests and come back with a response.
Again, I believe the most expeditious way to do that is to go
through the FAA AST since they're doing it already and I
already have to go there.
Senator Cruz. Any different views on that question from Mr.
Gold's?
Mr. Marquez. I just have a few--I don't want to say
different, just more detail on it. One, I think, foundational
item we need to do is in Article VI, it says authorize and
continually supervise. Nobody in this room knows what that
means. We need to work on what that means and what our
obligations--as we interpret our obligations to be under
authorized and continually supervised.
Again, I agree with my colleagues here that regulation
needs to be a light touch, even if it is regulation. I think
something akin to even filing a flight plan is good enough.
Again, I also agree that having a known front door and having
that front door staffed and funded to review these types of
activities, having the process and method known for what you're
going to be authorized and supervised known, that there's an
assumption of compliance with the treaty. None of us want to
violate the treaty. We're in this for business. We have no
interest in making space an unpredictable and unsafe place to
operate.
The second--or the fourth element here is that it needs to
be transparent, the process. We have to know what's going on
inside that process. And the final one, again, coming from the
national security community, is as a company, I want to know--
if I'm denied, I want an avenue for redress and appeal, to be
able to change something that may be a national security threat
so I can still do my operation, but do it in a way that is not
an issue for national security.
To your second question, Senator, about competitiveness
versus Luxembourg, our subsidiary in Luxembourg is taking
advantage of a great opportunity in that we have access to
engineers from around the world that we would not be able to
have access to here in the United States. It gives us an
opportunity to access all those people due to things that Mr.
Gold is very well aware of on export control issues.
The competitiveness, I would say, is that they have taken
initiative to not only create an analog to Title IV of the
recognition of the right to own resources that you obtain from
objects in space, but they've taken the next step to put that
structure in place that meets their Article VI obligations. So
there is a certain level of certainty in operations to be
conducted in Luxembourg. The Emirates is doing the same thing.
I've actually heard positive language from the Chinese about
trying to do the same thing.
So this is a growing area where I think, competitively,
this is no longer just a space race. This is a legal race. It's
a race to give surety and predictability to the commercial
space industry. And we're not looking to completely uproot and
move to another place, but we're taking advantage of the
opportunities it gives us to get that wonderful staff that
exists elsewhere in the world.
Colonel Melroy. Mr. Chairman, I'd just like to reinforce,
first of all--yes, this most definitely is a legal race with
national security implications. So I'd like to pile on that
statement.
As far as who should be in charge of oversight, I think the
most important thing is that right now, none of the agencies
proposed have the resources to appropriately oversee some of
these activities. They don't have all the technical experts
that are needed in these areas. They may have some. But I would
like to say that AST has a very high concentration of space
experts with a variety of backgrounds and expertise in this
area, and it makes sense if you're going to give responsibility
and you have to find extra resources to start with where that
dense population already exists.
Senator Cruz. Thank you.
Senator Markey.
Senator Markey. Thank you.
So let's go to what, briefly, each of you might think are
standards that you think should be put in place domestically
that then could be used as precedents for international
standards that our competitors around the world would then
understand that they would have to meet, because we were the
leader? So let's just talk about--if each of you could just
give us a couple of standards that you'd like to see, if we did
legislate, put on the books.
Mr. Richards. Sure. Well, I guess we can go in sequence.
Senator Markey. Sure.
Mr. Richards. I mentioned maximum certainty with minimal
regulatory burden. I mentioned a presumed or a deemed approval,
and I think that's an important concept. When we go to whatever
agency is selected to adjudicate this, we're not going as a
commercial company asking permission. There should be a
presumed right of commerce in space just like there's a
presumed right of commerce in aviation. But that doesn't mean
you don't have to file a flight plan.
So being transparent about what each of us wants to do in
space is important to make sure we're not interfering with each
other or somebody else, as Peter has said----
Senator Markey. So that should be a standard?
Mr. Richards. That should be a standard.
Senator Markey. Another standard?
Mr. Richards. Right. So non-threatening to any national
security interest, number one.
Senator Markey. OK. Number one.
Mr. Richards. Number two is not abrogating or threatening
any of our international obligations under treaty. Number three
is not interfering with ourselves or any other foreign activity
in space.
Senator Markey. Thank you.
Mr. Marquez, international standards that we should set
here domestically that you think would be important to have
internationally.
Mr. Marquez. Again, I'll concur with my colleague from Moon
Express. I think that the irreducible standard here is one of
non-interference, of non-harmful interference, in making sure
that whatever we approve to do here in the United States is not
going to interfere with our own actions, the actions of our
government, and the actions of our friends and allies who are
also signatories to the Outer Space Treaty, and even those that
are not signatories to the Outer Space Treaty.
There are probably a few other technical things that would
go into a specific review----
Senator Markey. Well, just give us a couple.
Mr. Marquez. I think the ability to show that you can
maintain positive command and control over your satellite and
the ability to communicate with it so that it won't go awry and
stray, those types of things. And then, again, like I said,
filing a flight plan so that people know where you're going and
the purpose of your mission, you know, the transparency in what
it is that you hope to achieve in your activity.
Senator Markey. Mr. Gold?
Mr. Gold. I think you will hear a lot of repetition, but
national security interests, international treaty obligations,
and non-interference, domestic or foreign, should all be
reviewed. I believe another aspect that we need to pay
attention to is if an agency generates a negative response to
an application, the answer shouldn't be a simple ``no'',
instead we need ``yes, but'' forcing an agency to explain to a
company what it is that they need to do to try and get to yes,
because just saying no really doesn't leave a lot of room for
innovation or growth, and I think that is a problem that we
have seen occur during remote sensing commercial licensing. I
believe if you just take those simple values and put it into a
light-touch, almost a registration-based regime, that it would
function and function well.
And per the race discussion, this is a race----
Senator Markey. And that's all you would really expect from
United Arab Emirates or from India? Is that what you're
saying--the same kind of standard?
Mr. Gold. Yes. I think UAE, in particular, has done an
excellent job of establishing a common-sense approach that
balances the need for a secure environment and for non-
interference, again, foreign and domestic, without being too
heavy handed. Unfortunately, a lot of this doesn't lend itself
to blanket solutions. Many of these issues need to be addressed
on a case-by-case basis, requiring a policy that is
sufficiently broad and flexible to handle that, and I think if
the U.S. leads and joins other countries like the UAE, et
cetera, we can see this develop as an international standard.
The last thing I would say is that, going back to the ITAR
example, there can be crises or incidents that lead to bad
policy and, currently, we are experiencing a smallsat
revolution, with thousands of cubesats in orbit and many more
to come. We just heard about the deployment with India of 100
or more cubesats in a single launch. That is why we need to get
these rules in place in a manner that supports innovation,
because we want that to occur, but balances it with the
security of the environment in space.
Senator Markey. Colonel Melroy, let's deal with that
question. India is launching, and they're doing things that
we've never done. So what standards do you want to have set
here that then we would say, ``Well, these are what we believe
are legitimate standards, India, or other Middle Eastern
countries. What are you doing to meet these minimal standards
that we think should be in place?'' What are those standards,
from your perspective, and how would we then, if we established
them, ensure that Middle Eastern countries, India, then met
them so that there was a certain rule of the road for outer
space going forward?
Colonel Melroy. Thank you, sir. I think that's a wonderful
question. I have to say that we've heard some less than
flattering things about lawyers here. But, in my opinion, we
need to get the engineers and the lawyers together, because
these need to be technically based. The truth is that everybody
has preferences for how they want other people to operate their
satellites to the benefit of their own country. But if you
don't have a basis, a safety or technical basis, that is
actually going to generate mistrust, you know, ``Why do you
want me to do it that way?'' So it's very, very important, I
think, that we should use the universal language of physics.
Space is a unique domain. It's not intuitive the way it is
to us here on the ground, in the maritime, and even the air
domain. So really understanding the implications of what you're
doing--a great example of that is you might think it would be a
standard to stay a certain distance away from any given
satellite. However, that's meaningless in low Earth orbit, as
satellites might be passing each other in orbits that will
never collide, ever, ever. On the other hand, they seem to be
coming close to each other. So you really have to understand,
actually, what's going on.
A better idea is that you have a passively safe orbit so
that you won't collide with any other satellite until, if you
decide to do a rendezvous, at the very latest practical moment,
which is usually guided by the physics of the client's
satellite. So those are the kinds of predictable behaviors that
I think give us confidence that people actually have done the
science behind what they're doing, and they're not going to
collide with each other and generate debris.
Senator Markey. OK. What is your training, Colonel?
Colonel Melroy. An Air Force test pilot, sir.
Senator Markey. What was your major in college?
Colonel Melroy. Physics.
Senator Markey. I was wondering--physics. So you want us to
abide by the rules of physics?
[Laughter.]
Senator Markey. There's the rule of law and the rule of
physics.
Colonel Melroy. Exactly, exactly. I think they can be
worked to be harmonized.
Senator Markey. Right, and lawyers and physicists can learn
from each other a little bit about how, then, to put that into
a useable form.
Colonel Melroy. Yes, Senator. Perfectly said.
Senator Markey. Thank you. Thank you so much for your
service to our country.
Thank you, Mr. Chairman.
Senator Cruz. Thank you, Senator Markey, and I would note
for any skeptics in the hearing room that for those who don't
believe in miracles, we've seen not one, but two witnesses on
this panel defend lawyers.
[Laughter.]
Senator Cruz. I suspect we may go many years in the Senate
without that ever occurring again.
With that, I want to thank each of the witnesses for
participating in today's hearing, both in the second panel and
the first panel. I think it was a very educational and
enlightening hearing.
It is the intention of this committee to go forward with
legislation, seeking to create a system that incentivizes the
investment and maximizes the potential for exploration in
space. So I would extend an invitation to each of our witnesses
and to other interested players in this arena. We are in the
process of a multi-part series of hearings to learn, to study,
and, hopefully, to come to consensus about how to create the
best system of rules to provide certainty and maximize
investment.
The hearing record for this hearing will remain open for 2
weeks. During that time, Senators are asked to submit any
questions for the record, and upon receipt, the witnesses are
requested to submit their written answers to the Committee as
soon as possible.
And with that, the hearing is now adjourned.
[Whereupon, at 4:23 p.m., the hearing was adjourned.]
A P P E N D I X
International Institute of Space Law
Paris--France, 24 May 2017
To: U.S. Senate Committee on Commerce, Science, and Transportation
Senator John Thune, Chairman
Senator Bill Nelson, Ranking Member
CC: U.S. Senate Subcommittee on Space, Science, and Competitiveness
Senator Ted Cruz, Chairman
Senator Edward Markey, Ranking Member
Subject: Letter for the record for the hearing on ``Reopening the
American Frontier: Exploring How the Outer Space Treaty Will Impact
American Commerce and Settlement in Space''
Dear Chairman Thune and Ranking Member Nelson,
Founded in 1960, the International Institute of Space Law (IISL) is
an independent non-governmental organization dedicated to fostering the
development of space law. The purpose of the IISL includes the
promotion and further development of space law and the expansion of the
rule of law in the exploration and use of outer space for peaceful
purposes.\1\ As such, the IISL has a keen interest in the topics to be
discussed at the hearing organized by your Subcommittee on May 23,
2017. We submit the following letter in support of the Subcommittee's
deliberations.
---------------------------------------------------------------------------
\1\ Composed of individuals and institutions of more than 40
countries elected on the basis of their contribution to space law, the
IISL is sister organization of the International Astronautical
Federation (IAF) and the International Academy of Astronautics (IAA).
With special consultative status to the United Nations Economic and
Social Committee (ECOSOC), the IISL is an officially recognized
observer at the United Nations Committee on the Peaceful Uses of Outer
Space (COPUOS) and of two subcommittees, the Scientific and Technical
Subcommittee, and the Legal Subcommittee; see also www.iislweb.org.
---------------------------------------------------------------------------
1. Status of the Outer Space Treaty
The Outer Space Treaty of 1967 was drafted and negotiated within
the Committee on the Peaceful Uses of Outer Space (COPUOS), a body of
the United Nations constituted in 1958 as subsidiary to the United
Nations General Assembly. Meeting in New York and in Geneva,
Switzerland, COPUOS and its Legal Subcommittee drafted the treaty in
the mid-1960s amidst geopolitical tensions which threatened to spill
over into outer space, a new realm of humankind's exploration and use.
The founders of the IISL participated in the drafting of this important
instrument.
Then comprised of 28 states, COPUOS adopted the draft text of the
treaty in late 1966, which was expedited to the United Nations General
Assembly for inclusion in its Resolution 2222 (XXII) of December 17,
1966.\2\ Signing ceremonies were held in Moscow, London, and in
Washington D.C. at the White House. The Outer Space Treaty entered into
force on October 10, 1967.
---------------------------------------------------------------------------
\2\ Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and Other
Celestial Bodies, G.A. Res. 2222 (XVII), U.N. Doc A/RES/2222 (Dec.17,
1966), available at http://www.un-documents.net/a21r2222.htm.
---------------------------------------------------------------------------
The Outer Space Treaty was quickly followed by a number of
subsequent treaties on space, also negotiated and drafted within COPUOS
with the direct involvement of IISL membership. These treaties
clarified and expanded many of the major provisions of the Outer Space
Treaty. The 1968 Astronaut Agreement expanded on Article V of the Outer
Space Treaty. The 1972 Liability Convention expanded on Articles VI and
VII of the Outer Space Treaty. The 1975 Registration Convention
expanded on Article VIII of the Outer Space Treaty.
As of 2017, the Outer Space Treaty has 105 states which have
ratified the treaty.\3\ These include all of the major and historical
spacefaring states such as the US, Russia, China, India, Brazil, Japan,
and all the Member States of the European Space Agency (ESA). New and
emerging space powers also often sign the treaty as a way to solidify
their arrival in the community of serious spacefaring states.
Additionally, a further 25 states have signed the treaty, which
expresses their intention to ratify it in the future, or at least not
to take actions which violate the intentions of the treaty.
---------------------------------------------------------------------------
\3\ United Nations, Committee on the Peaceful Uses of Outer Space,
Legal Subcommittee, Status of International Agreements relating to
activities in outer space as at 1 January 2017, A/AC.105/C.2/2017/CRP.7
(2017) available at http://www.unoosa.org/res/oosadoc/data/documents/
2017/aac_105c_22017crp/aac_105c_22017crp_7_0_html/
AC105_C2_2017_CRP07E.pdf.
---------------------------------------------------------------------------
2. Effects of the Outer Space Treaty
The Outer Space Treaty is an instrument of guiding principles that
have served all aspects of the space sector successfully since
inception. First granting space freedoms to explore and use outer space
for peaceful purposes and the benefit of all mankind, the treaty's
subsequent articles provide a framework denoting activities that are
either permitted or prohibited in furtherance of those freedoms.
Commercial space applications and activities have flourished in this
legal environment. The framework relies upon responsible legislation
promulgated at the national level by State Parties to the Treaty. The
United States has shown leadership in this regard, enacting laws and
regulations that are aligned with treaty obligations while
constructively facilitating innovation.
Many significant accomplishments have been achieved within the
parameters of the Outer Space Treaty. Benefits directly accrue to the
space sector and all State Parties. However, because of the far reach
of space applications and their intrinsic role in improved quality of
life,\4\ all of humankind benefits from responsible behaviour in space.
Withdrawal from the treaty could invite a number of undesired outcomes,
including inter alia far greater uncertainty to the thriving private
sector, or withdrawal by other State Parties, or loss of credibility in
the international space community, or worse.
---------------------------------------------------------------------------
\4\ Space applications will figure prominently in the achievement
of the United Nations Sustainable Development Goals for 2030.
---------------------------------------------------------------------------
3. National Implementation of International Obligations
Article VI of the Outer Space Treaty creates the international
legal responsibility of states to ensure treaty compliance with regard
to the activities of their governmental agencies and non-governmental
entities in outer space. Further, the activities of its non-
governmental entities trigger a State's authorization and continuing
supervision (``shall require''). This direct responsibility and
liability for damage on the international plane for the activities of
nongovernmental actors is absolutely unique in international law, and
is the impetus for supervision on all nongovernmental actors in the
space domain. Further, Article VI accountability has served the private
sector, both in the United States and internationally, in providing a
level of transparency, legal certainty, and responsibility in the
development of space applications. The United States has maintained
Article VI responsibility with the promulgation of a well-developed res
of domestic law overseeing launches and re-entries, the
telecommunications industry, and earth observation activities.
4. Conclusion
In conclusion, the International Institute of Space Law would like
to recognize the Subcommittee's serious inquiry into the appropriate
level of legislation necessary to maintain treaty compliance in
furtherance of the United States' international responsibility while
also fostering an environment of innovation. We further remind this
Subcommittee of the lasting and fundamental importance of this
foundational and visionary treaty governing the activities of States,
and of the non-governmental actors they are responsible for, in the
peaceful exploration and use of outer space.
Respectfully,
President of the International Institute of Space Law
Prof. Dr. Kai-Uwe Schrogl (Germany)
Vice-President of the International Institute of Space Law
Prof. K.R. Sridhara Murthi (India)
Treasurer of the International Institute of Space Law
Prof. Dennis Burnett (United States)
Executive Secretary of the International Institute of Space Law
Prof. Dr. Diane Howard (United States)
Board of Directors of the International Institute of Space Law
Prof. Dr. Setsuko Aoki (Japan)
Prof. Dr. P.J. Blount (United States)
Prof. Dr. Frans G. von der Dunk (Netherlands)
Prof. Dr. Marco Ferrazzani (Italy)
Prof. Dr. Steven Freeland (Australia)
Prof. Joanne Irene Gabrynowicz (United States)
Prof. Dr. Stephan Hobe (Germany)
Prof. Dr. Mahulena Hofmann (Czech Republic)
Ms. Corinne Jorgenson (United States)
Dr. Martha Mejia-Kaiser (Mexico/Germany)
Prof. Sergio Marchisio (Italy)
Ms. Elina Morozova (Russia)
Prof. Dr. Lesley Jane Smith (United Kingdom
Dr. Milton `Skip' Smith (United States)
Prof. Dr Maureen Williams (UK/Argentina)
Prof. Zhenjun Zhang (China)
______
Lifeboat Foundation
Minden, NV, June 5, 2017
Commerce, Science, and Transportation
Committee Space, Science, and Competitiveness Subcommittee
United States Senate
Washington, DC.
To: U.S. Senate Committee on Commerce, Science, and Transportation
Senator John Thune, Chairman
Senator Bill Nelson, Ranking Member
CC: U.S. Senate Subcommittee on Space, Science, and Competitiveness
The Honorable Senator Ted Cruz, Chairman
The Honorable Senator Edward Markey, Ranking Member
Subject: Letter for the Congressional Record from the Hearing:
``Reopening the American Frontier: Exploring How the Outer
Space Treaty Will Impact American Commerce and Settlement
in Space''
Mr. Chairman, Ranking Member Nelson, and Members of the Committee,
Statement from Lifeboat Foundation
Extolling Global Leadership and New Space Opportunity
The Lifeboat Foundation is a non-profit organization dedicated to
encouraging scientific advancements while helping humanity survive
existential risk.
In June 2018 the UNISPACE+50 international conference will
establish the Fourth International Dialog on the Peaceful Uses of Outer
Space.
This UN based platform will celebrate the achievements of the
original Outer Space Treaty since inception in 1967. The objective of
the program is to evaluate changing conditions and identify potentials,
within the advancing technological frontiers.
America's leadership influence may be placed at risk regarding the
Geneva program for the 50th Anniversary of the Space Treaty. As there
is no consensus from the multi-billion dollar New Space industries, it
is essential to situate America for global space leadership through an
open discussion based on opportunities, and not legislative
restrictions. The time frame is immediate. This perspective includes a
guiding political platform describing an innovative U.S. policy for
leadership and international engagement. Cohesive national objectives
need to be developed before the UNISPACE+50 conference takes place next
June in Geneva. Developments such as the creation of associated
agreement and regulatory frameworks for space-based issues, will be
suitably upheld, and enabled through this motivated public initiative.
The space development paradigm is exponential and highly relevant:
Topics that can be addressed within the UN auspices, will include
national and global security platforms, space based information and
communication technology (ICT) for global development, and global
partnership for manned space venture and settlement.
Opportunities and interests are extensive: the transition to
commercial launch, the achievement of space-based infrastructures,
manned space settlements and the upcoming trips to Mars. This paradigm
shift clearly demonstrates the need for not only international
engagement and inter-agency collaboration, but also for original
public/private partnership dynamics. In this way we will create an
optimal climate for the best peaceful global opportunities.
The current expectation is that the revisionary basis within the
treaty umbrella will be addressed through the preparation of a number
of rider and associated agreements. These types of negotiated
agreements, unless inclusively orchestrated would normally take several
years for placement. It is also apparent that U.S. policy might move
ahead in advance of the UNISPACE+50 program, and position for a notable
and extensive global leadership role.
Topics of national import, which are under consideration, will
include the role of next generation and quantum communications, the
establishment of a secure international cyberspace and the significant
value of distributed ICT systems for global development, economic
growth and new fiat currencies. This process will address the research
and development phases and objectives of an incremental and
collaborative space based architecture, along with the use of advanced
and sensitive technologies. These issues may include hypersonic flight,
the discussion for nuclear deterrence, and the global non-proliferation
process, supporting the tenet of the original treaty.
The recommendation of Lifeboat Foundation is that a significant
policy making potential can be readily assumed and brought forward by
the U.S. administration ahead of the UNISPACE+50 conference in 2018.
Innovative leadership at this early stage will greatly facilitate the
many and forthcoming levels of engagement.
Lifeboat Foundation is currently making arrangements to bring
forward an original forum dedicated to the establishment of U.S. space
leadership for the international community. This event will be held at
the United States Institute of Peace in Washington, D.C., sponsored by
several member's of the U.S. Congress and Senate, non profit
communities and commercial entities.
We invite your participation and support. In particular, we feel
that time scales are very limited and that considerable problem solving
effects, may be suitably provided, by looking towards the establishment
of an expedient ``short path'' U.S. space policy platform. The present
window of opportunity from June 2017 to June 2018 can best be utilized
through a consolidated political front, which acknowledges both the
immense value of U.S. technological export, and the opportunity
represented by global collaboration and partnership.
We much appreciate the notable and ongoing discussion for the Outer
Space Treaty, within U.S. Senate and Congress, especially in regard to
the development of the nascent markets.
Sincerely
Eric Klein,
Lifeboat Foundation.
______
Response to Written Question Submitted by Hon. Bill Nelson to
James E. Dunstan
Question. What are some of the norms and standards that we should
be establishing domestically in order to promote the types of
international norms and standards that would be conducive to commercial
activity in space?
Answer.
Thank you for allowing me to respond to your question above. You
are correct that the United States can provide leadership
internationally by establishing enforceable domestic norms and
standards for space activities that other countries can follow that can
result in either the establishment of customary international law, or
provide the basis for new international agreements. These norms and
standards can be broken down into four categories:
1) Ensure no violations of the key provisions of the OST;
2) Open coordination of activities between U.S. parties;
3) Tackling the orbital debris ``tragedy of the commons;'' and
4) Balancing priorities between exploration and use--and ensuring
science isn't squeezed out.
Ensure No Violations of the Key Provisions of the Outer Space Treaty
Congress should enact a regulatory framework that ensures that all
Americans abide by the provisions of the Outer Space Treaty--which, in
turn, will encourage other countries to do the same, and thus protect
U.S. interests. While I have argued that Article VI is not self-
executing, there are other provisions in the OST that are self-
executing:
a) Space and celestial bodies are not subject to claims of
appropriation by means of use or occupation (Article II);
b) No placing of nuclear weapons or weapons of mass destruction in
outer space (Article IV);
c) No establishing military bases on the Moon or other celestial
bodies (Article IV);
d) Avoiding harmful contamination (Article IX); and
e) Avoiding harmful interference (Article IX).
The first three are simple to implement in a future regulatory
regime: just add these prohibitions as conditions to the issuance of
any authorization/registration, and mandate instant revocation of the
authorization/registration for any breaches of these prohibitions.
The last two prohibitions contained in the OST will require further
clarification either through statute or regulation. Whichever agencies
are granted jurisdiction to issue regulations will need to carefully
define terms and develop standards in this area.\1\
Harmful Contamination. The Treaty does not define the words
``harmful'' or ``contamination''. This means Congress, the State
Department and domestic regulators will need to wrestle with questions
such as:
``What constitutes contamination?'' Is disturbing the
surface of a Celestial Body \2\ ``harmful contamination''? If
so, then the United States violated Article IX in landing six
Apollo missions on the surface of the Moon--and Article I's
talk of the freedom to use and explore space would be
meaningless.
``What constitutes harm?'' Is any change to a space
environment a harm? Again, obviously not. The term ``harmful''
must involve some relative weight--but of what factors?
``Harmful to whom?'' Is the harm to the environment the
standard, or does harm come into play only if the activity will
harm future humans visiting the Celestial Body? There is an
argument that this provision relates back to the ``no nukes''
provision in Article IV and that contamination must impact
human activities.\3\ An alternative interpretation is that
human biological contamination of Celestial Bodies must be
limited so that such contamination not lead to ``false
positives'' in the search for extraterrestrial life.\4\
``Contamination to what?'' Some argue that future visits to
the Apollo sites must be limited or prohibited outright because
to do so would contaminate these historical areas.\5\
``How non-contaminated must a mission be?'' NASA has
interpreted the ``no harmful contamination provision'' to mean
that its missions to Mars must guard against microbial
contamination as well, limiting the presence of bacterial
spores on any surface to no more than 300,000.\6\ (Obviously,
this number reflects some kind of weighing test.) ESA, the
European Space Agency, follows similar measures. Are those same
measures appropriate for private missions, and appropriate
regardless of the destination of the mission? Or should they be
tailored to the context of the mission?
Whatever agency ends up processing mission authorization
applications (or registrations) must be staffed with experts capable of
crafting a balanced approach to ``harmful contamination'' that balances
protection of the space ecosphere with the right to exploration and use
of space and Celestial Bodies that is guaranteed by Article I of the
OST.
Harmful Interference. Although often confused or conflated with
harmful contamination, harmful interference relates to the activities
of humans vis-a-vis each other in outer space (rather than the impact
of human activities on the space environment). Article I implies this
principle: ``Outer space, including the Moon and other celestial
bodies, shall be free for exploration and use by all states''--i.e.,
without interference. And Article IX makes this principle explicit:
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.''
While the activities of nationals are specifically mentioned in the
first clause,\7\ at its core, Article IX relies upon government-to-
government diplomatic activity without the force of law. The United
States could begin to establish international norms for adjudicating--
and avoiding--interference disputes by:
a) Establishing a standard for defining ``harmful interference.''
Harmful interference should be limited to activities of one
party that interrupt or impinge the operations of another party
or cause actual physical harm to a space object that negatively
impacts the operations of the second party. Harmful
interference could also include radio frequency interference--
as radio frequencies will be critical to any space mission.
Congress should make clear that economic harm, absent a
physical harm (radio frequencies, too, are issues of pure
physics), does not rise to the level of harmful interference.
b) Establishing basic interference parameters for U.S. domestic
operations (e.g., orbital distance separations, and lunar
operations separation).
c) Declaring that principles of terrestrial tort law apply to outer
space operations, and establish jurisdiction in the Federal
district courts to hear claims of interference between U.S.
parties. Ultimately, the goal should be to promote tort law as
the basis for resolving disputes between U.S. and foreign
parties, as well--to have a single common law for space and a
mechanism for resolving U.S.-foreign disputes that is more
effective, faster and cheaper to use than the state-to-state
coordination mechanism contemplated by Article IX. As much as
any particular private U.S. company might like to have the
weight of the U.S. government behind it to enforce its rights
to a particular mission, such a heavy-handed approach
(empowering the government to pick winners and losers) would be
costly for the government to engage in, and simply not
necessary given the well-established field of tort law.
Are there missions that should not be authorized simply because the
``first mover'' will preclude other users? For example, several
geographic points at the lunar south pole are highly valuable. There
appears to be only one good ``down ramp'' into Shackleton Crater, for
example. Would the U.S. authorize a company to place a base on this
down ramp with a concomitant interference-free zone that would preclude
anyone else from using that down ramp--even if this meant giving that
company an effective property right over the entire crater? Similarly,
there are a few ``peaks of eternal light'' surrounding Shackleton
Crater where operators would want to set up both communications and
solar collectors. These areas are quite small, however, and multiple
users might not be able to place installations there. How should such
``prime real estate'' be treated for non-interference purposes?
Open Coordination of Activities
In order to minimize ``harmful interference,'' Congress should
require an open coordination of activities between space operators.
This is already done by the FAA/AST when it comes to launch/reentry
licenses (to ensure that objects are not launched into conflicting
orbits) and by the FCC when it comes to spectrum use in outer space.\8\
Whatever regulatory regime is established for innovative space
activities, the overseeing agency should require all operators seeking
authorization or (as we have proposed) filing for registration \9\ to
describe their planned mission with sufficient specificity to allow
later operators to develop non-interfering mission scenarios. That
agency should also be given the power to require that operators
coordinate their activities so as to allow later operators to conduct
activities in a non-interfering way, if possible. For example, an
entity seeking authority to mine the volatiles at the south pole of the
Moon should be required to coordinate those activities with later
operators seeking authority to do the same thing. Similarly, an
operator seeking to mine asteroids should be required to specify what
asteroid is to be mined, and the method of resource extraction. That
way, a subsequent operator could plan a similar mission accordingly (or
determine that multiple mining operations on that asteroid are not
feasible because of the size of the asteroid \11\ or the method of
harvesting the resources (e.g., a ``bag and blow'' approach)).\12\
The difficulty with the coordination process, as the FCC's
experience has made clear, is dealing with the problem of
``warehousing'' a space resource. Consider this example:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Asteroid 2006RH120 has been ``captured'' by the Earth-Moon system
and a mission in 2028 could rendezvous and land on it with a Delta-V of
only 58 m/sec (i.e., extremely small amount of thrust needed).
2006RH120 is only 2.3 x 7.4 meters, meaning that it is highly unlikely
that multiple operators could mine it without interfering with each
other. If Company A seeks authorization to mine the asteroid and
specifies a 2028 rendezvous date, would that preclude Company B from
seeking authorization to rendezvous with it in 2026 using a higher-
energy/less efficient trajectory? What if Company B agreed that it
would vacate the premises prior to Company A landing in 2028? What if
the mission calls for a ``bag and blow'' approach such that there would
be virtually nothing left of 2006RH120 by the time Company A arrives?
On-orbit servicing presents another example where open coordination
is necessary. One person's servicing satellite is another person's
ASAT: any vehicle with the capability to match orbits, rendezvous and
dock with another object could easily be used to disable, destroy, and/
or steal a satellite. Such operations must be conducted in such a
manner that all space operators know where that servicing satellite is,
and what it is doing, at all times.\13\
Regulations will need to be crafted to account for these types of
issues. Ideally, authorizations would not be granted unless/until the
entity can demonstrate that they can actually perform the mission. For
satellites, the FCC has set up a system of ``milestones'' against which
operators must purchase a bond which is forfeited in the event that the
satellite is not timely launched. The complication here is that there
is the added element of transit time for asteroid missions, where a
later-authorized mission could beat a prior-authorized mission. Is the
first-to-file applicant always the winner? Is that a rational approach
if a later applicant can demonstrate that it can perform the mission
sooner?
By adopting domestic legislation and regulations that establish a
responsibility for operators to openly coordinate their activities as a
norm, the United States can urge other countries to adopt similar
standards--and, as proposed in my testimony, could effectively require
adoption of similar standards as a condition of recognizing another
country's legislation as consistent with that of the U.S. in a system
of interlocking domestic legislation modeled on the Deep Seabed Hard
Mineral Resources Act of 1979. Coupled with the adoption of tort law
concepts to interference, discussed above, this would go a long way
toward eliminating instances of open conflict between innovative space
operators.
Tackle the Orbital Debris ``Tragedy of the Commons''
As Douglas Adams famously wrote in The Hitchhiker's Guide to the
Galaxy: ``Space is big. Really big. You just won't believe how vastly,
hugely, mind-bogglingly big it is. I mean, you may think it's a long
way down the road to the chemist, but that's just peanuts to space.''
He wasn't kidding.
The total area of the 800 kilometer orbital sphere \14\ encompasses
664 million square kilometers (or 411 million square miles) of area.
Were the approximately 1000 currently operating satellites all bunched
in this one orbit (which they obviously are not), each would have some
664,000 square kilometers (411,000 square miles) in which to
operate.\15\ The mindset of many in the early years of spaceflight was
that space was so vast that the likelihood of two objects actually
colliding was so remote as to not be worth worrying about, and
certainly not worth taking into consideration when planning space
activities. This became known as the ``Big Sky'' theory of space
operations.\16\ Recent debris generating collisions (both accidental
and intentional) have demonstrated, however, that the days of the ``Big
Sky'' theory are over--if the theory ever had any validity to begin
with. Today satellites must operate in orbits that not only contain
1000 other operating satellites, but 50 years' worth of rocket bodies,
derelict satellites, the flotsam and jetsam created by on-orbit
explosions,\17\ and even debris created by routine space deployment
activities, where pieces just float away from a vehicle while deploying
payloads or during normal operation.\18\
Finally, and most importantly, the orbital debris situation is not
static. While a certain number of pieces of debris reenter the
atmosphere each year, countries continue to launch vehicles and create
more debris on a yearly basis. Yet this accounts for a relatively slow
and somewhat manageable increase in orbital debris. This steady state
ecosystem of junk is upset, however, whenever there is a major
collision incident. On average, as discussed above, such incidents
create between 2,500 and 3,500 new trackable pieces of junk. The fear,
which is not yet predictable, is if such major collision events
continue, there may be a cascade effect--``the Kessler Syndrome''--
whereby collision events and new debris occur at exponentially
increasing rates, creating huge clouds of debris and rendering certain
orbits so dangerous as to be useless.\19\
The United States has taken a lead internationally on orbital
debris mitigation, through the work done at NASA, as well as being a
founding member of the Inter-Agency Space Debris Coordination Committee
(IADC).\20\ Any new regulatory regime should continue this leadership.
The regime should also strive to consolidate, harmonize, and streamline
regulations in this area. Currently, there are at least five separate
regulatory regimes for orbital debris mitigation that, while all based
on the NASA standards, nonetheless differ slightly in approach and
reporting requirements.\21\ It is thus possible for a mission to have
to submit multiple debris mitigation plans to different agencies.
Most important, the United States must take the lead in actually
enforcing debris mitigation standards. The DoD routinely waives its
debris mitigation guidelines for its launches, and the FCC has allowed
Iridium to operate 10 of its satellites until they ``run dry,'' rather
than requiring Iridium to de-orbit or move those satellites to a
``graveyard'' orbit.\22\ If the U.S. wishes to lead internationally in
establishing norms and standards, then it must enforce its own
regulations, before it can demand that the rest of the world also
``gets tough'' on orbital debris.\23\
Finally, the United States must begin to establish norms and
standards for orbital debris remediation (the actual removal of orbital
debris). This could include a statutory declaration that any U.S.
registered abandoned space object that poses a potential threat to
space navigation can be removed, under maritime law concepts of
``salvage and finds.'' \24\ The United States should also begin to
explore ways of creating Public/Private Partnerships to incentivize the
private sector to actively remove derelict space objects.\25\ One
possible source of funding for a ``bounty pool'' would be the
approximately $15 million annually the FCC collects in regulatory fees
from satellite operators.\26\ Any regulatory regime next adopted by
Congress should direct the applicable agency to study private sector
approaches to orbital debris remediation.
Balance Priorities Between Exploration and Use (ensuring science isn't
squeezed out)
Article I of the OST declares that outer space shall be free for
both exploration and use by all nations. In the rush to encourage
American businesses to continue to develop an outer space economy that
will benefit all humanity (and increase the tax base of the United
States), the United States cannot overlook or downplay the important
role exploration will continue to play in outer space. As a species, we
have only just begun to learn about our planet, our solar system, and
the universe we inhabit. The continued exploration of outer space, both
by government actors and private companies, must be encouraged and
protected.
Any new regulatory regime must act in a way that both encourages
private sector ``use'' of outer space but also protects scientific
``exploration.'' We cannot repeat the mistakes the FCC made late in the
last century of reallocating significant spectrum from space uses to
terrestrial uses, simply because, at that time, there was less activity
in space and a desire for more terrestrial services.\27\ The relevant
agency or agencies should be charged by Congress to incorporate the
needs of the science community into any authorization regime. That is
not to say that science can ``veto'' private activities in space: the
science community must participate in the same open coordination
process that will be required of private actors.\28\
This is a critical standard to adopt domestically so that worldwide
the important scientific exploration of outer space is protected--and,
again, a requirement that could be a core part of a system of
interlocking domestic legislation adopted by spacefaring nations
piecemeal, without any need to re-open the Outer Space Treaty for
negotiation or even to negotiate a new space law convention.
References
\1\ The contamination aspects of orbital debris are discussed
separately below.
\2\ The term ``Celestial Body'' also is not defined in the OST.
There was some discussion at the time of the negotiation of the OST
that Celestial Body should be defined to limit it only to natural
objects in space that are not capable of being moved from their current
orbits. See E. Fasan, Asteroids and other Celestial Bodies Some Legal
Differences, 26 J. Space L. 33 (1998) (arguing that early space law
writers and possibly the negotiators of the OST limited the definition
of ``Celestial Body'' to include only the planets and major moons).
\3\ It should be noted that prior to the OST negotiations, the
United States had carried out ``Project West Ford'' (also known as
``Project Needles'') in which the U.S. launched 480,000,000 1.78 cm
long copper needles into near polar orbits at between 3,500 and 3,800
kilometers (2,200-2,400 miles) to determine whether an artificial
ionosphere could be created such that radio waves could be bounced off
the needles allowing for long distance (over the horizon) radio
communications. International scientists objected to the mission,
fearing that the needles would negatively impact astronomy programs.
Many legal scholars point to Project West Ford as the catalyst for the
consultation requirements of Article IX, but tie that provision to the
non-interference language of Article IX, not the no harmful
contamination provision. See, e.g., D. Terrill, ``The Air Force Role in
Developing International Space Law,'' Air University Press, 1999,
available at https://media.defense.gov/2017/Apr/07/2001728438/-1/-1/0/
B_0069_TERRILL
_OUTER_SPACE_LAW.PDF (last visited 6/22/17); see also J. Gabrynowicz &
S. Langston, ``A Chronological Survey of the Development of Art. IX of
the Outer Space Treaty,'' Special Topics in Aerospace Law Series, no.
3, a Supplement to the Journal of Space Law, available at http://
www.spacelaw.olemiss.edu/resources/pdfs/article-ix.pdf (last visited 6/
22/17)
\4\ See M Williamson, ``A Pragmatic Approach to the `Harmful
Contamination' Concept in Art. IX of the Outer Space Treaty,'' 5th
Eilene M Galloway Symposium on Critical Issues in Space Law, December
2010, available at: http://www.spacelaw.olemiss.edu/events/pdfs/2010/
galloway-williamson-paper-2010.pdf (last visited June 13, 2017).
\5\ See ``NASA's Recommendations to Space-Faring Entities: How to
Protect and Preserve the Historic and Scientific Value of U.S.
Government Lunar Artifacts,'' Released July 20, 2011, available at:
https://www.nasa.gov/pdf/617743main_NASA-USG_LUNAR_HISTORIC
_SITES_RevA0508.pdf (last visited June 13, 2017).
\6\ See https://mars.nasa.gov/mer/technology/
is_planetary_protection.html (last visited June 13, 2017).
\7\ Some space law scholars argue that private activities are only
addressed in the first clause of Article IX, and that private citizens
have no right to petition their governments to complain about an
activity that might interfere with that private citizen's space
activities. See http://groundbasedspacematters.com/index.php/2017/03/
31/the-non-interference-provision-of-article-ix-of-the-outer-space-
treaty-and-property-rights/ (writings of Laura Montgomery, last visited
June 13, 2017).
\8\ See, e.g., proposed Order In the Mater of WorldVu Satellites
Limited (OneWeb), available at http://transition.fcc.gov/
Daily_Releases/Daily_Business/2017/db0601/DOC-345159A1.pdf (last
visited June 13, 2017) (requiring operators of NGSO systems to
coordinate their operations and frequency usage to allow for the flying
of multiple constellations of satellites).
\9\ TechFreedom has previously advocated for a ``Mission
Registration'' approach rather than the ``Mission Authorization''
approach advocated for by the Obama Administration in response to
Section 108 of the CSLCA. For the purposes of this section, the type of
regulatory regime is not critical to this analysis.
\11\ Only one operator might be able to mine a small asteroid as
depicted below in this NASA concept image.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
\12\ One approach, depicted above in a NASA concept image, is to
capture the asteroid in a bag and then blow it up to extract the
resources, again, making it virtually impossible for two entities to
mine the same asteroid.
\13\ For example, in the proposed WorldVu order, supra note 8, the
FCC is proposing to require that OneWeb publish the orbital parameters
(ephemeris data in two-line orbital element format) at least once every
three days. Similar regulations could be adopted requiring any on-orbit
servicing mission to publish in near-real time the orbital parameters
of their service vehicles and any intended altitude or plane changes.
\14\ The 800 kilometer orbit was chosen for this calculation
because it is considered one of the more crowded orbits.
\15\ This calculation is a significant oversimplification since in
addition to assuming that the approximately 1000 operating satellites
all occupy the 800 kilometer orbit, the calculation assumes that all
are exactly orbiting on the surface of a perfect sphere 800 kilometers
above the mean surface of the Earth (and hence 7271 kilometers above
the center of the Earth). Therefore, it only calculates the square
kilometers surface area of the sphere. Since satellites don't operate
at exactly the same orbital altitude, even within a designated orbit,
and since orbits aren't entirely circular (the apogee--or high point--
of an orbit is usually slightly different than the perigee--or low
point), to be more accurate the calculation should be made using a
three dimensional slice of sphere centered around 800 kilometers above
the surface of the Earth, making the amount of ``Big Sky'' surrounding
each satellite appear much larger. However, what also makes the
calculation incorrect is the assumption that somehow all of satellites
are flying ``in formation,'' while in reality, they are orbiting in a
variety of directions (predominately West to East, North to South
(polar) or South to North (polar)), such that their orbits cross each
other.
\16\ The origin of the term ``Big Sky'' is unknown. Most likely it
comes from aviation traffic modeling where the assumption is that two
randomly flying bodies are unlikely to collide because of the size of
the three dimensional space in which they operate. The earliest
reference this author can find to such a theory applied to space is the
Survey of Space Law, Staff Report of the Select Committee on
Astronautics and Space Exploration, H. R. Doc. No. 89, 86th Cong., 1st
Sess., at 7 (1959) [hereinafter SURVEY OF SPACE LAW] (where Dr. John P.
Haden, the director of Project Vanguard is quoted as saying ``space is
a very big area'').
\17\ Between 1961 and 1995, for instance, 124 fragmentation events
were cataloged. See Office of Science and Technology Policy,
Interagency Report on Orbital Debris, 12 (Nov. 1995), available at
http://orbitaldebris.jsc.nasa.gov/library/references.html.
\18\ One of the earliest and most publicized pieces of space debris
was NASA astronaut Ed White's glove, which he lost on the first
American spacewalk during the Gemini 4 flight (June 3, 1965). See
National Aeronautics and Space Administration, Gemini 4, http://
nssdc.gsfc.nasa.gov/nmc/masterCatalog.do?sc=1965-043A (last visited
Sept. 12, 2013). Fortunately, the Gemini 4 capsule was orbiting at a
relatively low altitude (166 x 290 km orbit), such that the glove
reentered the atmosphere within a month. For a look at eight
interesting (tagged as ``weird) pieces of orbital debris, see Clara
Moskowitz, Lost in Space: 8 Weird Pieces of Space Junk, WIRED (Feb. 13,
2013), http://www.wired.com/wiredscience/2009/02/spacestuff/.
\19\ The ``Kessler Syndrome'' is named after (and not directly by),
retired NASA engineer Donald J. Kessler. According to Kessler, the term
was coined by a colleague, John Gabbard, a NORAD analyst. See Donald J.
Kessler, The Kessler Syndrome (Mar. 8, 2009), http://webpages
.charter.net/dkessler/files/KesSym.html. See also Donald J. Kessler &
Burton G. Cour-Palais, Collisional Frequency of Artificial Satellites:
The Creation of a Debris Belt, Paper 8A0210, 83(A6) J. GEOPHYSICAL
RES., 2637 (June 1, 1978); Donald J. Kessler, Collisional Cascading:
The limits of population growth in low earth orbit, 11(12) Advances In
Science Res., 63-66 (1991). See also James Rendleman, Space Traffic
Management--Private Regulation, in Proc. of the AIAA Space 2012 Conf. &
Expo., n. 6, AIAA 2012-5124 (Sept. 2012), http://arc.aiaa.org/doi/abs/
10.2514/6.2012-5124. For a fascinating PBS interview with Donald
Kessler about orbital debris and the ``Kessler Syndrome,'' see https://
www.youtube.com/watch?v=LaKz8VDkDkI (last visited June 15, 2017).
\20\ http://www.iadc-online.org/.
\21\ Compare, 14 C.F.R. Sec. 417.129 (FAA/AST orbital debris
mitigation standards for launch/reentry); 47 C.F.R. Sec. 25.114(d)(14)
(FCC regulations or orbital debris mitigation for satellites); 15
C.F.R. Part 960, Appendix 1: C (NOAA remote sensing orbital debris
requirements; NASA-STD-8719.14A (74 pages), which puts into effect NASA
Procedural Requirement 8715.6, and includes reference to NASA-Handbook
(NASA-HDBK) 8719.14 (NASA orbital debris mitigation guidelines); DoD
Directive 3100.10 (Space Policy), 2012; DoD Instruction 3100.12 (Space
Support), 2000 (DoD guidelines on orbital debris mitigation).
\22\ See Iridium Constellation LLC, DA 14-1118, released July 31,
2014.
\23\ For example, in 2002, ESA launched Envisat, an 8,000 kilogram
Earth observation satellite into the highly crowded 790 km polar orbit.
At 26 meters x 10 meters, by 5 meters, it is one of the largest
satellites orbiting Earth. It had an expected operational life of five
years, but ESA continued to operate it for an additional five years. In
April of 2012, ground controllers lost contact with the satellite.
Although being operated well beyond its expected operational life, no
efforts were made to deorbit the satellite, move it to a safer orbit,
or safe the fuels and batteries onboard. It is estimated that the
satellite will remain in orbit, and a danger to space navigation, for
between 100 and 150 years. ESA's response to why nothing was done to
prepare Envisat for its inevitable end of life? According to one
report, ``ESA officials insist that the international guidelines on
disposal of debris were not in force when Envisat was designed.'' See
Peter B. de Selding, ``Envisat to Pose Big Orbital Debris Threat for
150 Years, Experts Say,'' SPACE NEWS (July 26, 2010), at 1, http://
www.spacenews.com/article/envisat-pose-big-orbital-debris-threat-150-
years-experts-say.
\24\ For a fuller discussion of the application of the laws of
salvage and finds to outer space, see J. Dunstan, ``Space Trash:''
Lessons Learned (and Ignored) from Space Law and Government, 39 J.
Space Law 23 (2013).
\25\ For one approach to a ``bounty system'' for orbital debris,
see J. Dunstan and B. Werb, Legal and Economic Implications of Orbital
Debris Removal: A Free March Approach, presented at the International
Conference on Orbital Debris Removal hosted by DARPA, December 8-10,
2009, available at: https://spacefrontier.org/wp-content/uploads/2009/
12/Legal-and-Economic-Implications-of-Orbital-Debris-Removal-A-Free-
Market-Approach.pdf (last visited June 16, 2017).
\26\ See Assessment and Collection of Regulatory Fees for Fiscal
2017, Notice of Proposed Rulemaking, FCC 17-62, p.22 (released May 23,
2017). This annual regulatory fee is in addition to substantial
application fees operators have to pay the FCC to receive licenses.
\27\ See J. Dunstan, Earth To Space--I Can't Hear You: Selling Off
Our Future To The Highest Bidder, Proceedings of the Thirteenth Space
Studies Institute/Princeton Conference on Space Manufacturing, 1997.
\28\ Coordination between space telecommunications uses and radio
astronomy provides a good example of how the needs of science can be
accommodated at the same time private enterprise is allowed to operate
in space. See WorldVu Draft Order, supra n. 8, 10 (reminding OneWeb
of its obligations to coordinate with the radio astronomy community).
______
Response to Written Question Submitted by Hon. Bill Nelson to
Laura Montgomery
Question. What are some of the norms and standards that we should
be establishing domestically in order to promote the types of
international norms and standards that would be conducive to commercial
activity in space?
Answer. The norms that the United States should establish
domestically to promote commercial activity should recognize private
property rights and protect the activities of commercial operators from
interference by others.
Property rights: Article II of the Outer Space Treaty does not
prohibit commercial or private ownership of land or extracted
resources. Instead, it is silent regarding commercial interests, and
directs its prohibition on appropriation at ``States Parties.''
Property rights serve as an incentive to investment. Without property
rights and recognized title, a person cannot offer land as collateral
on a loan or to obtain financing. Investors are more leery when there
is no means of securitizing an investors' interests, and the operator
itself is hampered in its ability to plan if it does not know that the
property it is using and, hopefully, going to be spending decades on,
will remain under its control. Accordingly, the United States should
figure out a way to recognize property rights extraterrestrially.
Interference and safety: Although commercial progress on reaching
celestial bodies is still not very far along, orbital activities show
how the U.S. is already a leader in seeking to avoid interference
between spacecraft. U.S. Government practice and regulatory codes
direct spacecraft to avoid collisions with other spacecraft and to
prevent the generation of orbital debris. It is probably premature to
worry about interference between commercial operators yet on celestial
bodies.
______
Response to Written Question Submitted by Hon. Bill Nelson to
Matthew P. Schaefer
Question. What are some of the norms and standards that we should
be establishing domestically in order to promote the types of
international norms and standards that would be conducive to commercial
activity in space?
Answer. Domestically, the U.S. space industry and U.S. Government
should begin discussing standards to meet some key Outer Space Treaty
(OST) obligation terms, such as harmful contamination in OST Art. IX.
The U.S. State Department took the position in the recent Moon Express
payload review that COSPARS standards do not create a floor for what
will be compliant with OST Art. IX. In other words, COSPARS standards
created in a scientific era are not the standards that need be complied
with in a new commercial era. There is significant flexibility in how
to define harmful contamination. Commercially-friendly standards, even
ones create by industry groups, can be deferred to, as long as those
standards do not stray from the treaty terms properly interpreted under
the well-established rules of treaty interpretation codified in the
Vienna Convention on the Law of Treaties, Art. 31 & Art. 32. Those
interpretation rules place primary emphasis on the ordinary meaning of
the terms of the treaty, and in this case lend themselves to
significant flexibility in interpreting the term harmful contamination.
If the United States industry comes to agreement on a standard, and
that standard does not conflict with international obligations, then
the U.S. Government, together with industry, can seek to promote those
standards internationally. Congress can require deference to industry
standards by the Executive Branch when delegating on-orbit
authorization authority to the Executive Branch. Congress can also
encourage exportation by the Executive Branch of those standards
internationally.
The U.S. industry and government may also wish to discuss standards
on what constitutes harmful interference, but may wish to wait on
developing too rigid of standards in this area until experience under
actual cases is gained. The United States successfully
internationalized (exported) its debris mitigation principles that now
find reflection in the IADC and UNCOPUOS principles. Such exportation
of standards and guidelines is eased when the United States shows good-
faith respect for international obligations. Congress' codification of
the United States' long-standing OST interpretation allowing for
property rights in extracted resources in 2015 (Public Law 114-90) in a
manner that acknowledged and respected U.S. international obligations
is an example of establishing interpretations and principles in a
manner that increases and maximizes the chances of bringing other
countries on-board with commercially-friendly interpretations and
principles to the benefit of U.S. space companies.
______
Response to Written Questions Submitted by Hon. Bill Nelson to
Peter Marquez
Question 1. What are some of the norms and standards that we should
be establishing domestically in order to promote the types of
international norms and standards that would be conducive to commercial
activity in space?
Answer. Background.
The norms and standards set by the United States will have a
profound impact on how the rest of the world reacts to commercial space
activities. As history has indicated, the United States Government's
approach to implementing its obligations under Article VI of the Outer
Space Treaty in relation to highly innovative private space activities
will influence the approach of the 100+ other Parties to the Treaty.
The Treaty lays out some basic rules of the road for all actors in
space, public or private. National implementing legislation is the
necessary connection between international law and private space
operators. To maintain this continuity across all space activities, and
to preserve the global competiveness of the commercial space sector, it
is imperative that the United States Government impose no more than is
legally necessary to ensure conformity with the provisions of the Outer
Space Treaty.
Recommendations
First, I urge Congress to distinguish between measures that are
legally required to implement the United States' obligations under the
Outer Space Treaty, and those that are intended to further public
policy interests.
Policy-driven measures that would constrain private space activity
must be carefully weighed against cross-cutting public policy interests
in opening up entirely new space-based economies, with its tremendous
potential for job creation and improvements to quality of life.
As a former national security professional, I am well aware that
the United States' national security interests may, in some cases,
counsel for specific conditions on private space activities. It is
imperative that any such conditions, and the process for evaluating
commercial space activities in light of U.S. national security
interests, be narrowly tailored--limited to major, specific national
security threats, with procedural safeguards built in that prevent an
endless and opaque review process that kills innovation, destroys
investment, and cedes commercial innovation and technological
development to non-U.S. actors. In this connection, we see elements of
the recently introduced American Space Commerce Free Enterprise Act,
H.R. 2809, as a step in the right direction.
Measures to implement the United States Treaty obligations must be
narrowly tailored to require no more than legally necessary for Treaty
compliance. In this regard, we are encouraged by features of H.R. 2809,
building in definite time tables, a presumption of approval, and
authorizing only such conditions as legally necessary to ensure
conformity with the Outer Space Treaty.
Second, it is imperative that regulators not get too far ahead of
the technologies and capabilities of the coming generation of
commercial space activities, attempting to regulate based on their best
guess of how technologies and activities will unfold. The government is
not well placed to make informed guesses, and in many cases the
commercial space sector will find the optimal technical solutions
through a process of experimentation. This is an essential piece of our
industry's innovation engine, and there is an ever-present risk of
regulators inadvertently forcing suboptimal technical choices.
Third, the United States should promote the foundational elements
of the Outer Space Treaty as the key norms and standards for all
international actors to follow and domestically enact, especially in
accordance with Article VI. Key among them are the protections from
harmful interference. We believe that it is in the best interest of all
Nations to preserve the right of all actors to operate in space free
from harmful interference from other activities.
Regulatory Approach. Col. Melroy's testimony describes a regulatory
approach where a few very high-level, performance-oriented requirements
are complemented by industry standards that contain the details.
Question 2. Could each of you please comment on whether such an
approach would make sense for providing U.S. Government oversight and
regulatory certainty for emerging commercial space activities that are
not covered under existing regulations? And what should the role of
government agencies be in, if any, in developing industry standards for
commercial space activities?
Answer. Recommendations.
As the Outer Space Treaty lays down general principles, rather than
specific requirements, there are many paths to conformity with each
provision. Which path is commercially feasible (or optimal) will only
become clear as capabilities near or mature.
In many instances, private operators are much better placed to know
the optimal means of complying with these broad principles.
Therefore, industry should be proposing means of meeting OST
principles, and Government confirming conformity with the treaty,
rather than a top down approach.
The Government has a role in publicly supporting these industry
standards, with particular emphasis placed on supporting these
standards in international discussions-bilaterally or multilaterally.
______
Response to Written Questions Submitted by Hon. Bill Nelson to
Mike Gold
Question 1. What are some of the norms and standards that we should
be establishing domestically in order to promote the types of
international norms and standards that would be conducive to commercial
activity in space?
Answer. The U.S. should support an efficient and effective
regulatory approach that meets Article VI obligations while ensuring
that American commercial space activities avoid causing harmful
interference with domestic or foreign operations. A process should be
established that encourages innovation and investment while still
protecting the safety of the environment in orbit and beyond. Moreover,
the U.S. should set an example by continuing to involve the private
sector in standard setting activities via Federal Advisory Committees
and initiatives such as the DARPA Consortium for Execution of
Rendezvous and Servicing Operations (``CONFERS'') program.
Regulatory Approach. Col. Melroy's testimony describes a regulatory
approach where a few very high-level, performance-oriented requirements
are complemented by industry standards that contain the details.
Question 2. Mr. Gold and Col. Melroy, what improvements are needed
in space traffic management to enable expanded commercial activity in
space?
Answer. The U.S. Air Force has done a superb job of supporting the
private sector with collision avoidance data. However, the Air Force
and Department of Defense (``DoD'') are justifiably concerned with the
amount of time and resources that have gone into such activities. The
DoD should be allowed to remain focused on core national security
responsibilities and has expressed the need for a civil agency, focused
on safety, to step in and provide the private sector with potential
conjunction warnings and related information.
A pilot program for FY 2018 is being established for the DoD to
work with the FAA Office of Commercial Space Transportation (``FAA
AST'') to play this role. Via a partnership with the DoD, the FAA AST
will begin the process of developing and demonstrating a system for
sharing data with commercial entities while still providing robust
protection for classified information. Moreover, the FAA AST will
leverage innovative capabilities being developed by industry and
academia to further enhance the existing U.S. Space Catalogue. The FAA
AST hopes to combine all of this with a customer service-oriented
approach emphasizing transparency, accuracy, and efficiency.
If this demonstration is successful, the FAA AST can ensure that
the private sector receives space traffic management information in a
timely and easily accessible manner. This will allow commercial space
activities to survive and thrive, while freeing the DoD to focus on its
core national security mission.
Regulatory Approach. Col. Melroy's testimony describes a regulatory
approach where a few very high-level, performance-oriented requirements
are complemented by industry standards that contain the details.
Question 3. Could each of you please comment on whether such an
approach would make sense for providing U.S. Government oversight and
regulatory certainty for emerging commercial space activities that are
not covered under existing regulations? And what should the role of
government agencies be in, if any, in developing industry standards for
commercial space activities?
Answer. I believe the approach described by Col. Melroy is sound.
Unlike mature industries, such as aviation, many emerging commercial
space activities are so new that only the companies themselves have a
comprehensive understanding of their systems. Moreover, emerging
commercial space activities vary widely in nature and scope. Therefore,
while it's possible and proper for the U.S. Government to establish
high-level requirements, industry should develop the relevant details.
This process has already been initiated via efforts supported by the
Commercial Space Transportation Advisory Committee (``COMSTAC'') and
the Commercial Spaceflight Federation.
Beyond providing high-level, performance-oriented requirements, the
U.S. Government has an important role to play in supporting and
facilitating standards development. Many emerging space companies are
run on a relatively tight budget and their personnel have limited time
that can be dedicated to regulatory efforts and discussions.
Consequently, the U.S. Government should provide funding and support
personnel for standards development to ease the burden on private
sector companies. For example, via the COMSTAC, the U.S. Government
helps to provide a framework and some personnel support for standards
development and regulatory discussions.
Another example of a constructive role that the U.S. Government can
play is the previously referenced DARPA CONFERS program. Under CONFERS,
DARPA is sponsoring the creation of a ``secretariat'' that will support
standards development involving both domestic and foreign entities.
DARPA will provide funding to this secretariat, which will be operated
by a nongovernmental organization. As the secretariat and field of
satellite servicing evolves the government funding and support will be
phased out. CONFERS presents an attractive model for the role of the
U.S. Government in standards development that, if successful, could be
replicated to address additional issues and activities.
______
Response to Written Questions Submitted by Hon. Bill Nelson to
Pamela A. Melroy
Question 1. What are some of the norms and standards that we should
be establishing domestically in order to promote the types of
international norms and standards that would be conducive to commercial
activity in space?
Answer. There is an urgent need for norms and standards around
certain activities in space operations--specifically, those that
involve risk. A great example of how this can be successful can be seen
in the NASA orbital debris mitigation standards, which began
organically at NASA and then were adopted by the U.S. Government; all
or most of those standards have been adopted internationally. They were
successful for several reasons. First, they addressed a universal
safety issue. Second, they were reasonable and had a path to be
achieved without serious financial burden. Third, they were technically
based. These are all important criteria to be considered for the
future.
FAA AST has already published some guidelines relative to
commercial human spaceflight that will be very helpful going forward,
and their advisory group COMSTAC is working on others related to launch
safety. Other safety-based standards and norms could include rendezvous
and proximity operations (such as the CONFERS effort being funded by
DARPA and NASA), docking and refueling, and even standard liability
clauses for spacecraft servicing contracts. Examples of standards
include the use of passively safe orbits (meaning that if there is a
communications failure, the spacecraft will pass by each other and not
collide) until as late as practical in the docking timeline; the use of
grounding features during spacecraft refueling to avoid the buildup of
electrical current and attendant hazards; and notification of intent
for cooperative rendezvous to a space traffic management organization.
In some cases hardware standards can be very helpful--for example, in
the shipping industry certain standards at ports make it possible for
all ships to dock and be serviced.
Question 2. Mr. Gold and Col. Melroy, what improvements are needed
in space traffic management to enable expanded commercial activity in
space?
Answer. Today, we do not truly have space traffic management--we
have Space Situational Awareness (SSA) with monitoring and notification
of potential conjunctions. First, an organization must be identified
which has both the technical capability and the resources to provide
the full range of services--surveillance, monitoring, notification, and
regulatory authority to punish bad actors.
We must also increase the tempo of information to improve accuracy;
today a dozen exquisite certified sensors are used by the Air Force to
track objects in space, but repeat observations can be days apart,
which greatly decreases the accuracy of the orbital track. Recently
there have been major strides made by commercial entities such as
COMSPOC in gathering less exquisite data from many sensors around the
world--commercial, academic, and government--and blending them together
for more rapid and accurate observations. At this time, the Air Force's
JSpOC and National Space Defense Center (formerly JICSpOC) are
currently exploring opportunities to use this commercial Space
Situational Awareness (SSA). The civil government entity responsible
for space traffic management should be closely coordinating with the
Air Force to encourage this new space industry and take advantage of
the lower cost, higher tempo data that commercial SSA provides.
Government organizations should also coordinate how they purchase and
use this data to help industry optimize the business model.
Next, we must use advanced technology to reduce the cost of these
activities which are labor-intensive and largely manual today. More
(and better) SSA data--even if it is less expensive--means that much
greater levels of automation will be needed, and special tools for big
data analysis. These automated features can simplify conjunction
notifications as well.
Finally, as the commercial launch (and recovery) services industry
continues towards higher ops tempo, we will begin to find our air
traffic system increasingly stressed in order to clear wide swaths of
airspace for launch and landing activities. Integration of air and
space traffic management will be essential to allow spacecraft to
safely launch through busy air routes on schedules that are
commercially viable. Spectrum may play a connected role in this
integration as the use of transponder frequencies allotted to aircraft
users may be needed for spacecraft that are launching.
Question 3. Col. Melroy, what are the benefits of the existing
Outer Space Treaty regime for our commercial, civil, and national
security space interests?
Answer. The major benefit of the existing Outer Space Treaty is
that it is better than nothing. Based on recent agreement attempts such
as the Code of Conduct, I am concerned that if we attempted to re-
negotiate the treaty, it would likely fail or at least take many years.
When we open up re-negotiation, we weaken the overall commitment to
this one agreement with the force of international law. The current
treaty does not prohibit anything we want to do which makes it a good
starting point.
The other benefit is that the Treaty is based on principles rather
than being proscriptive. This provides flexibility. While it was not
written with today's changes in national security or the expanding
commercial environment in mind, we can tailor the principles
individually through standards and other agreements for specific sets
of activities. In fact, it's urgent that we do so, and the State
Department should be forwarding this goal at UN COPUOS with the support
of Congress and departments and agencies.
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