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Washington rallies around the Outer Space Treaty

Yesterday Senator Ted Cruz (D-Texas) held the second in what he says will be a series of hearings on the future government regulation of the commercial space industry. The specific focus of this hearing was the 1967 Outer Space Treaty and its effect on private enterprise.

The hearing saw two panels of witnesses, the first three legal experts on the Outer Space Treaty, the second four industry experts from a variety of private space businesses.

Like the first hearing on April 27, the witnesses this time were once again unanimous in their call for a simplification of the present regulatory arrangement. They also emphasized repeatedly that private enterprise should not be required by Congress to get permission to do things in space. Instead, Congress should merely provide regulation that will facilitate private enterprise while helping them avoid interfering with each other.

Unlike the first hearing, however, the atmosphere was decidedly less interested in improving the overall international regulatory framework created under the Outer Space Treaty. Instead, the witnesses in unison were supportive of the treaty and did not want the U.S. to either pull out of it or try to change it. All advocated the position that the treaty as written allowed the U.S. to regulate private businesses in a manner that could protect property rights in space.

As I watched the hearing I was struck by this unity of position. To me, it appeared that the Washington elitist community was circling its wagons in order to protect the status quo.

The witnesses from the business community appeared afraid of the consequences of any effort to change the Outer Space Treaty. As Mike Gold, Vice President of Space Systems Loral, noted,

It would still be ill-advised for the U.S. to withdraw from the treaty or open it up to revisions. … If the U.S. pulled out of the treaty it would create confusion and uncertainty, hindering new commercial developments as well as established private commercial space activities. Moreover, opening up the treaty to amendments would likely only result in more language being inserted into the Treaty that would run counter to U.S. interests.

Essentially, any effort to change the treaty would carry with it too many unknowns that might hurt them, and was unnecessary in the short run.

The legal witnesses all advocated keeping the treaty. From their perspective, the treaty’s sixth article, which states that “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,” gave the U.S. the proper authority to set policy for its citizens that would sufficiently protect their property rights.

Yet, will it? As James Dunstan of the Mobius Legal Group noted, “I don’t think the Outer Space Treaty as it is written would allow for the United States to even recognize domestically [property rights]. … I think article 2 is pretty clear, we can’t domestically recognize property rights. We would have to go in and renegotiate that treaty.”

Furthermore, no one addressed the problem of conflicting property claims between different nations. What if two nations want the same specific piece of territory? As they say in the real estate business, “Location, location, location!” The Moon has only only two poles, and the places at those poles that would have either eternal light (for solar power) and eternal darkness (with ice available) are going to be limited. Everyone will want that real estate.

What if a U.S. private company sets up operations there and the Chinese moved in to push them off? Nothing in the Outer Space Treaty provides any protection to that company or its rights. In fact, article two of the treaty specifically forbids any nation from claiming sovereignty on any territory. Because no nation can control any territory legally, whatever regulations or protections it creates under article 6 to protect the rights of its citizens are made null and void by article 2, which states that no nation’s laws can supersede another’s on any territory in space.

The bottom line is that any policy the U.S. puts forth that does not include sovereignty to the territory that its citizens possess in outer space will not be worth the paper it is written on.

That there seemed so little enthusiasm by both industry and legal experts for dealing with this issue forthrightly suggests to me that we face a prolonged problem. Sooner or later the lack of national sovereignty, or the lack of a legal framework for establishing national sovereignty, is going cause a conflict in space that could be avoided.

More importantly, private companies and individuals will continue to have no strong legal protection of their property rights in space. The incentive to invest money will be weak. Governments will continue to dominate all activity, and the space-faring citizens that will eventually settle the Moon, Mars, and the asteroids will remain servants of their governments, not free citizens.

Genesis cover

On Christmas Eve 1968 three Americans became the first humans to visit another world. What they did to celebrate was unexpected and profound, and will be remembered throughout all human history. Genesis: the Story of Apollo 8, Robert Zimmerman's classic history of humanity's first journey to another world, tells that story, and it is now available as both an ebook and an audiobook, both with a foreword by Valerie Anders and a new introduction by Robert Zimmerman.


The print edition can be purchased at Amazon. Or you can buy it directly from the author and get an autographed copy.

The ebook is available everywhere for $5.99 (before discount) at amazon, or direct from my ebook publisher, ebookit. If you buy it from ebookit you don't support the big tech companies and the author gets a bigger cut much sooner.

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"Not simply about one mission, [Genesis] is also the history of America's quest for the moon... Zimmerman has done a masterful job of tying disparate events together into a solid account of one of America's greatest human triumphs."--San Antonio Express-News


  • Tom Billings

    I’m not surprised about the skittishness from people with money already on the table. With every suggestion of change, people like lawyer Ilho, from Brazil, pop up with wealth redistribution schemes as their number one concern. Oligarchs from many countries, that participate far less than the US in the worldwide networks of industrial society, are going to be looking at a further loss in status, and do not like that prospect!

    Indeed, while everyone wants to explain that they want economic growth, they in fact want economic growth that will not lower their own status. From the Board members of Planetary Resources, to the officers of Space Systems Loral, people who think they have a finely tuned plan to benefit from settling the Solar System, don’t want those plans to lose the resonance they have with the current environment.

    The freedoms of action of settlers to engage in economic activity without political restraint does little to excite them, because they assume those will be too far in the future to help themselves. They *do* know that Senor Ilho wants their money just as soon as he can get his hands on it (in trust for the poor, …of course)! They are right to be concerned. What they are *not* right to do is to refrain from opening the battle over freedom. The longer the present OST remains as a “norm”, the more plans will fit themselves into its restraints, until no one can wriggle free of the plans of everyone else. The, Senor Ilho wins anyway.

  • Anthony Domanico

    It’s too bad Mr. Bigelow wasn’t able to testify on this matter. He has publicly stated that he would support a policy that allows citizens to own property on celestial bodies. He went on to say it would be a forcing function for significant investment. I too was surprised by the industry experts desire for the status quo but Tom Billings has a plausible point.

  • Anthony Domanico: Read my description of the previous hearing. Bigelow testified then, and was quite clear about the need for property ownership and the problems the Outer Space Treaty causes.

  • The Lunatic

    The biggest problem with opening up the treaty is the risk of getting provisions like the UNCLOS International Seabed Authority. Remember the Moon Treaty?

    As for the “What if a U.S. private company sets up operations there and the Chinese moved in to push them off?” scenario, the Chinese are (even if done through a nominally private company, because Article VI makes them responsible) committing an act of war against the United States (as the US is the state party responsible for the company’s actions). Just as if the Chinese attacked a US-flagged ship on the high seas.

  • ken anthony

    The OST restricts government which is a fortunate accident. Private ownership will happen regardless of those that oppose it. It’s just a matter of time.

    Defending private property will be on many fronts in many ways. The greatest force will come from those that unite to defend the rights of themselves and those actually possessing property.

    No nation will value the property more than the actual possessors. Nations will not go to war over it. The law will not take the lead but follow. So the OST serves it’s best purpose by tying up the hands of those that would claim the land from the possessors. Never trust the politicians.

  • Edward

    Robert noted that Bigelow testified to Congress in the first round of hearings, last month. Bigelow Aerospace posted his comments:
    Whether the ISS continues or not, additional destinations besides the ISS are vital to sustain a viable space crew and cargo enterprise with new markets that eventually replace the ISS.

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