Space, regulation, the Outer Space Treaty, and yesterday’s Senate hearing

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Yesterday the space subcommittee of the Senate Commerce committee held a hearing, organized by Senator Ted Cruz (R-Texas), entitled “Reopening the American Frontier: Reducing Regulatory Barriers and Expanding American Free Enterprise in Space.”

You can watch the hearing here. There have also been a number of stories last night and today that summarized the testimony during this hearing.

Having watched the full hearing, I think that most of these stories did not capture well the full political context and significance of yesterday’s event. They focused on Cruz’s advocacy for private space and the call for less and more streamlined regulation by the witnesses. They missed a great deal else.

For example, Cruz definitely made it clear from his effort to organize this hearing that he is committing himself to reshaping U.S. policy towards space exploration, both through law and political action. For example, he noted in his opening remarks that this is merely one hearing in a planned “series of hearings” on the subject. He has only just begun.

In addition, Cruz’s effort here appears incredibly bi-partisan. The only other Senate attendees to the hearing were Democrats, with the former and new ranking leaders of the subcommittee from the Democratic Party, Bill Nelson (D-Florida) and Ed Markey (D-Massachusetts), participating eagerly and without rancor. They were both there for the entire hearing, and were clearly being influenced not only by Cruz’s remarks but by the testimony of the witnesses. That no other Republican attended this hearing was I think not because they were boycotting Cruz (several fellow committee members, such as Mike Lee (R-Utah), are strong conservative allies) but because Cruz does not need to convince them to support his position. He was working here to bring the Democrats to his side, and it appeared that he was having some success.

Most important of all, however, were the repeated references to the Outer Space Treaty by Cruz and others. That Cruz noted that maybe it is outdated and needs revision did not surprise me. What was significant, and not captured by the stories above, was his reference to the idea of incorporating the American concept of homesteading in that revision. Even more significant was Bill Nelson’s hearty endorsement of the idea, noting that his own family had obtained land through homesteading in the early 20th century, a piece of land that just happened to be located near one end of the space shuttle runway at the Kennedy Space Center.

While these senators might have been influenced by my op-ed in the Federalist last week, I think it much more likely that they have been, like me, considering this issue themselves, and that I more likely sensed the wave coming from many different places, and caught it with my op-ed at just the right time

Nor were the senators the only ones talking about the Outer Space Treaty. One witness, Robert Bigelow, noted the need to revise the Outer Space Treaty, pointing out that while the treaty was mostly workable as is, the vagueness of its language in areas of ownership and territorial control needed to be better specified. Bigelow was especially concerned about China, whom he noted is very much invested in the idea of ownership. He worried that if we do not create some legal system under international law that will place some limits on what nations can grab, he feared China will grab everything.

Another witness, Andrew Rush, the CEO of the company Made in Space, noted the need for protecting the intellectual property rights of things that are created in space. More important, he wanted any U.S. facilities in space, whether in orbit or elsewhere “to be treated as U.S. soil” so that U.S. property law can be applied to protect their investment. To make that happen, however, the U.S. is going to have to insist on a major revision of the Outer Space Treaty, since it specifically forbids any nation from establishing its legal framework on any territory in space.

That these statements and this hearing has occurred only a week after Luxembourg’s government made its own call for a revision to the treaty to protect property rights, indicates to me that, for the first time in a half century, there is some real political movement building to rewrite the Outer Space Treaty, and that this movement is aimed at securing the right to own property in space. Expect other countries to soon chime in, including the United Kingdom, the United Arab Emirates, and Japan, all of whom have been recently struggling with this issue themselves in recent months.



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