Is it time to update the Outer Space Treaty?by Jeff Foust
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| “I don’t want to start by making decisions before we hear testimony and before we think through it,” Cruz said of potential treaty changes. |
Leading the way has been Sen. Ted Cruz (R-TX), chairman of the space subcommittee of the Senate Commerce Committee. In an April hearing, he suggested it was time to examine if the treaty needed revisions (see “Commercial space’s policy wish list”, The Space Review, May 1, 2017). “It’s important that Congress evaluate how that treaty, enacted 50 years ago, will impact new and innovative activity within space,” he said in his opening remarks.
That topic only got secondary attention at that hearing—just one of the four witnesses, Bigelow Aerospace founder Robert Bigelow, directly addressed it—but Cruz continues to signal an interest in examining changes to that treaty, the cornerstone of international space law.
Cruz returned to the topic in an on-stage interview May 16 at a half-day event called “On the Launchpad,” held by The Atlantic magazine and which also featured acting NASA administrator Robert Lightfoot and panel discussions on various aspects of space exploration. He praised the treaty for provisions like banning weapons of mass destruction in space, yet suggested other elements of the treaty were outdated.
“The central focus of that treaty was preventing nuclear weapons in space. That’s a very good thing,” he said. “But, 50 years later, we’re in a very different environment.”
Cruz, though, was vague about what elements of the treaty were no longer in step with that very different environment. “I don’t want to start by making decisions before we hear testimony and before we think through it,” he said in the interview. He used the interview to announce plans to hold a hearing by his subcommittee a week later on the issue.
“We’ll be hearing testimony both from lawyers who have studied the issues and also from business leaders that want to expand commercial investment in space,” he said, “and considering how do we update and modernize the treaty to reflect the realities of the modern world.”
| “There is also nothing to be gained right now from reopening the current treaty regime,” said Dunstan. |
That May 23 hearing did indeed include both lawyers and business leaders. One panel featured three legal experts, while the other included four people who were either executives of space companies or had knowledge of the industry. But they offered a nearly unanimous message: the Outer Space Treaty doesn’t need changes, and any effort to amend it could open it up to other, unfriendlier changes.
“There is also nothing to be gained right now from reopening the current treaty regime,” said James Dunstan, founder of the Mobius Legal Group and one of the witnesses in the first panel of the hearing. “Doing so now would allow countries that are not friendly to the United States or American capitalism to layer on costly regulatory burdens that the United States would have to reject.”
That view was echoed in the later panel by executives. Peter Marquez, vice president of global engagement for asteroid mining company Planetary Resources, acknowledged that the treaty is not necessarily perfect. One issue of importance to his company is rights to resources extracted from asteroids. The 2015 Commercial Space Launch Competitiveness Act gives US companies the rights to such resources once extracted, but not property rights on celestial bodies, which runs afoul of the treaty.
However, Marquez didn’t see amending the treaty as the best solution to any issues regarding resource rights. “We’re 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,” he said.
| “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,” said Montgomery. “Just because those activities take place in outer space does not have to mean that they suddenly require oversight.” |
Mike Gold, vice president of Washington operations for Space Systems Loral, a company with contracts with both NASA and DARPA to work on satellite servicing systems, said that parts of the treaty can be “vague or challenging” for commercial satellite companies. But he, too, also warned against seeking changes to the treaty or even withdrawing from it outright.
“If the US pulled out of the treaty, it would create confusion and uncertainty, hindering new commercial developments as well as established private sector space activities,” he said.
Much of the recent interest in the Outer Space Treaty has to deal with its Article VI, which requires nations that are signatories to the treaty to provide “authorization and continuing supervision” of space activities by “non-governmental entities” under their jurisdiction, such as companies. While that process is well-established in the United States for conventional applications, like communications and remote sensing satellites, how the government would carry out that obligation for so-called “non-traditional” missions, like asteroid mining and satellite servicing, is less clear.
Moon Express ran into that issue when seeking a payload review for its first commercial lunar lander, which will fly on a US-licensed launch vehicle, Rocket Lab’s Electron. It was not immediately clear what agency had oversight of such missions in order to comply with that Article VI requirement. The company eventually did receive approval for its lander, but on a one-off basis that does not provide a precedent for other lunar landers, let alone different non-traditional missions.
Bob Richards, CEO of Moon Express, argued at the hearing for a streamlined regulatory process to make it easier for companies to get necessary approvals. That could be done, he said, without making changes to the treaty.
“I believe time and energy is better spent continuing to interpret the Outer Space Treaty in favor of international collaboration without constraining the rights, the benefits and the freedoms of US commercial enterprise,” he said, calling the treaty a “remarkably visionary document” that has stood the test of time.
There is a separate, but related, debate on just how the US government should fulfill its Article VI obligations under the treaty. There have been proposals for “enhanced payload reviews” or “mission authorizations” that would cover non-traditional missions like those of Moon Express, Planetary Resources, and Space Systems Loral. Others, though, have argued that no such systems are necessary.
“I respectfully recommend that the United States understand that it need not regulate new commercial space activities… 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,” said Laura Montgomery, an attorney formerly with the FAA’s Office of Commercial Space Transportation and now proprietor of Ground Based Space Matters LLC.
Montgomery argued that many in government believe that Article VI prohibits such activities without explicit government approval. A close reading of the treaty, she said, does not require such approvals; if it did, she said, a far wider range of activities would require approval in space that are not regulated on Earth.
“Where would oversight stop?” she asked. “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 suddenly require oversight.”
Others said that some activities did require some degree of oversight, given their potential to cause harm to others, such as satellite servicing. “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,” said Pam Melroy, who recently left DARPA after spending four years as deputy director of its Tactical Technology Office, including working on satellite servicing initiatives.
However, she cautioned against putting too much of a regulatory burden on such efforts. Otherwise, she said, “the initiative will simply go to other countries.”
The subcommittee’s ranking member, Sen. Ed Markey (D-MA), asked during the hearinf about the implications if the US decided to simply withdraw from the Outer Space Treaty.
| “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,” said Melroy, but added it can’t be too heavy a burden. |
Matthew Schaefer, co-director of the space law program at the University of Nebraska College of Law, said it was better for the US to stay in. “There are going to be some countries that oppose our interpretations of various [Outer Space Treaty] provisions for matters of national interest regardless,” he said. “But I think when we comply with Article VI of the treaty, we increase the number of countries that we have credibility to lead towards the US-inspired, commercially-friendly interpretations of the treaty.”
Dunstan noted the international reaction to the space resources language in the Commercial Space Launch Competitiveness Act. “There was pushback from some in the international community,” he said, from some who saw in conflict with the treaty. “And yet, many other countries are following suit.”
Cruz, at the end of the two-hour hearing of which he was the only committee member present for the entire event, didn’t tip his hand on whether the arguments swayed his opinions about what, if anything, should be changed with the treaty. More hearings, he said, are planned, as he weighs those issues as well as other action he wants to take with legislation to support the commercial space industry. Perhaps the treaty will emerge from this midlife crisis unscathed.