One concept for satellite servicing, an emerging space market that is creating some legal uncertainty. (credit: Space Systems Loral)

Re-opening the American frontier: Recent Congressional hearings on space

by Lt. Col. Peter Garretson
Monday, July 3, 2017

Opinions, conclusions, and recommendations expressed or implied within are solely those of the author and do not necessarily represent the views of the Air University, the United States Air Force, the Department of Defense, or any other US government agency.

The Senate, and in particular Senator Ted Cruz (R-TX), are to be congratulated on the foresight to be considering “Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space,” the title of a hearing by the Senate Commerce Committee’s space subcommittee, chaired by Cruz, in May.

These issues are precisely the focus being explored in Air University's Space Horizons Research Group. It was clearly the consensus of the lawyers and representatives at the hearing that the Outer Space Treaty itself was not the most significant barrier, and that they favored continued US participation in the treaty and the predictability it offered compared to the uncertainty of the US withdrawal. They largely believed that the US interpretation was adequate to allow extractive industries, like space mining.

The major focus then became national legislation. While there existed a split in the opinions of the lawyers as to whether or not additional legislation was required, it was clear from industry that the lack of clarity was, in fact, problematic and that not acting was, in their view, not an option. The second panel at the hearing was emphatic that America faced not only a space race, but a legal race—less to author to future rules of the domain, but more to create a competitive advantage. American businessmen and lawyers revealed the shame that America's national legal policies and incentives lagged behind the United Arab Emirates and Luxembourg. And they laid out as clear an action plan for Congress, which can be summarized as follows:

1. Congress must act immediately to win the legal race to create a transparent and minimally burdensome regime that is competitive with the leaders (UAE and Luxembourg).
2. Enumerate the sense of Congress that leadership the foreseeable areas of space activity—satellite servicing, lunar and asteroid mining, tourism, and space energy—were themselves considered of national security benefit where the US sought to be first, and that there should be a presumption of approval.
3. That Congress should not establish a new agency, but rather establish the FAA’s Office of Commercial Space Transportation, or AST, as the single regulatory door and ombudsman to other US agencies, and to formalize in law the enhanced payload approval process. Congress should staff and fund FAA/AST to provide a timely review.
4. That Congress should create clarity by providing a standard for a light-touch, minimalist check that would include compliance with the Outer Space Treaty and non-interference with other US operators or other space operators. They should endeavor to minimize the legislative burden.
5. Rather than enacting new regulations on industry, Congress should rather lay out clearly what specific few things require review or supervision and under what conditions, and ensure that there is always some agency specifically empowered to authorize.
6. That Congress should harmonize regulatory standards between various agencies.

The members of Congress not on the Senate Commerce Committee, particularly House and Senate Armed Services Committees, should understand that this is not an issue confined to the commercial sector. Nor should those charged with national security consider this at odds with national security. In fact, there is no greater security for America in space than for the US to attract and sustain, to be first and to remain ahead in, these new space industries. Each of these industries, no matter how frivolous they may appear at first, have the possibility of significantly advancing a US presence and maneuver advantage. Each new market we can access expands our freedom action and the industrial base available for national security. Every additional launch and payload provide opportunities for hosted payload, contract logisticsn or services. Every increment of scale lowers the cost of procuring those products or services for national security.

While a strong argument was made for the US not to tamper with the Outer Space Treaty per se, it is also clear that the treaty as written is inadequate. It would then fall to deal with its inadequacies by other means.

Extracted property and zones of non-interference: The simplest and least costly way is for the US to begin a process today of establishing reciprocal bilateral agreements with Luxembourg and the UAE recognizing the property of operators authorized in each other’s country, and agreement on adjudication. It should begin parallel discussions with India, China, and Russia to at least explore areas of convergence or divergence. While such treaties would fall to the executive, Congress could support this process by recording in legislation the sense of Congress that this is a preferred method to establish such bilateral and multilateral agreements.

Planetary defense: While the Outer Space Treaty is not prohibitive, it is certainly neither clarifying nor enabling to our responsibilities for asteroid and comet defense. Congress has demonstrated consistent leadership on this subject over the lethargy of other actors, but it needs to ask for more. We need an office of primary responsibility within the Department of Defense with a clear plan for an operational capability.

Active space debris removal or recycling: Congress should enumerate its desire to see an international regime that incentivizes the removal and repurposing of space debris, and ask the executive to begin discussions on options for an international regime that would best balance incentives for debris removal and repurposing with low initial barriers to entry. Such a regime might, for instance, transfer ownership to an international body charged with removal, repurpose, or letting contracts or bounties for the same. Alternatively, it might establish an insurance or fee system

Real property rights and sovereignty: Perhaps the time is not now, but eventually the Outer Space Treaty must be superseded. It is simply too inconsistent with our visions for human expansion and survival and our entire experience on planet earth to deny such fundamental rights (affirmed in the Universal Declaration on the Rights of Man) as property and to form polities.

Senator Cruz and his allies are correct: this is the right time to look ahead. Doing nothing is not an option if the United States desires to maintain its advantage. Congress must act now to create a better competitive environment for space industrial development than any competitor. They must do this not in spite of national security concerns, but because our commercial space industrial base is our key national security advantage in access, maneuver, and innovation.

Lt. Col. Peter Garretson is Lead, Space Horizons Research Group and Instructor of Joint Warfighting, Department of Research (DER) Air Command and Staff College (ACSC) at Maxwell Air Force Base in Alabama.

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