Tag: Outer Space Treaty

Another proposal for dealing with the Outer Space Treaty

10:02 pm

Link here. The author has made an interesting analysis of my earlier essay on this subject, and come up with what I think is a very intriguing and most encouraging idea:

Government establishes a legal framework for enforcing law. So, rather than allow nations to make claims of territory, let us instead allow private enterprises to go to the Moon or elsewhere, stake a claim, and then, to establish a legal framework for resolving any disputes that arise, choose the government under whose legal jurisdiction their claim will reside. No governments would appropriate territory. They would merely be lending their courts to render judgments on legal disputes arising outside their territories. That would seem to satisfy Article 2. This scheme would not require a new Treaty but could probably be implemented via United Nations resolutions. [emphasis in original]

I actually like this, as it puts the power in the hands of the citizens or companies, allowing them to pick the nation to which they wish to align.

What I find most encouraging however is that the subject of the Outer Space Treaty is now becoming a major issue worth discussing, by many others. I have my ideas, others have theirs. Either way, the issues and weaknesses of the treaty are now being debated, and people are proposing solutions. In the fifty years since the treaty was signed it has previously been impossible to generate this much discussion on this issue. (Believe me, I have tried.) That others are now responding and proposing alternative approaches means that maybe the time has finally arrived where this problem will be dealt with.

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Washington rallies around the Outer Space Treaty

1:52 pm

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,
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Cruz to hold hearing on updating Outer Space Treaty

5:19 pm

Senator Ted Cruz (R-Texas) revealed today that he plans to hold a hearing next week on reviewing the Outer Space Treaty.

Sen. Ted Cruz (R-Texas) said in an on-stage interview during The Atlantic magazine’s “On the Launchpad” event here that the hearing, scheduled for May 23, would explore modifications to the Outer Space Treaty of 1967 to better enable commercial space activities. “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, “considering how do we update and modernize the treaty to reflect the realities of the modern world.”

He said he was concerned that the treaty, crafted at the height of the superpower space race of the 1960s, does not reflect the needs and interests of emerging commercial space companies. “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 said he didn’t have specific changes to the treaty in mind. “I don’t want to start by making decisions before we hear testimony and before we think through it,” he said. He added he hoped that, like recent space-related legislation that has passed Congress, including the Commercial Space Launch Competitiveness Act of 2015, to win bipartisan agreement to pursue efforts to “modernize it to create the incentives for continued investment.”

I had sensed this might be Cruz’s next move, based on the last hearing, and it is gratifying that he is going to go forward with it.

Update: The list of witnesses can be found here. The committee webpage also says they will be focusing on Article VI of the Outer Space Treaty, which does not discuss the issue of sovereignty (Article II). Instead, Article VI says this:

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.

I begin to sense the direction this negotiation will head. Rather than claim sovereignty, they will rework this clause to allow each nation’s laws to apply to the activities of their citizens. In a sense, this is an end-around Article II.

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

9:27 am

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.
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European push for more space regulations under international law

8:46 am

In the European space community and governmental circles, there appears to be a new push to revise the Outer Space Treaty, focused specifically on increasing the treaty’s regulatory power in the area of large satellite constellations and space junk.

This week [the city of] Darmstadt hosts a closed-door, governmental meeting of the Inter-Agency Space Debris Coordination Committee (IADC). Whether it was planned or not, the IADC is set to discuss a much-needed renewal of international space law, which is, experts admit, rather vague. But how far they will go is anyone’s guess.

…There is a palpable sense that the space community needs enforceable international laws and regulations, rather than – or merely to bolster – its current inter-agency agreements. They’ve served us so far, but few countries have actually signed up to them. That leaves a lot of wriggle-room, especially as space becomes increasingly commercialized.

Most of our space activities are governed by the Outer Space Treaty of 1967. It’s a short document that primarily seeks to ensure space operations are “peaceful” and for the good of all humanity. It is complemented by other agreements, including a set of documents on mitigating space debris. “We have a good, coherent set of justified rules and we don’t intend to alter them drastically,” said Christophe Bonnal of the French Space Agency, CNES, and the International Academy of Astronautics (IAA) in closing remarks last week. “But we will improve them at the IADC meeting to include mega-constellations.”

It appears to me that this is a push-back against Luxembourg’s recent announcement that it is going to request a renegotiation of the Outer Space Treaty to allow for property rights in space. What this article is advocating instead is that the treaty increase its control and regulatory power over private satellite constellations, which at present are not covered by the treaty.

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U.S. space law versus UN Outer Space Treaty

10:26 am

In its effort to provide legal protections to private companies attempting to do asteroid mining, it appears that the U.S.’s most recent space law directly contradicts the UN Outer Space Treaty.

The United States recently passed a law that contains an article that directly concerns asteroid mining and legalizes it. This law is the Commercial Space Launch Competitiveness Act (CSLCA), which was signed into law by President Obama in 2015. The CSLCA addresses resource extraction in Article IV, and states, “A U.S. citizen engaged in commercial recovery of an asteroid resource or a space resource shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell it according to applicable law, including U.S. international obligations.”

The issue here is that US law is in opposition to a UN treaty, to which the US is a signatory. The Outer Space Treaty is one of the oldest and most important agreements in the history of international space policy. Under the Outer Space Treaty, asteroid mining is illegal, since it is an appropriation of a celestial body by a State. Since the human being or organization that is doing the resource extraction is under the purview of some State, that State is responsible for the actions that are done by the nationals or organizations that are doing the mining.

This responsibility was given to the State by the sixth article of the OST and is strengthened by the Liability Convention of 1972. Since the State is responsible and liable for the actions done by their nationals, this means that the State could be interpreted as appropriating the asteroid.

I am surprised and encouraged to see two different articles about the problems of the Outer Space Treaty appear in the press less than a week after my op-ed on the very subject. I am sure there is no connection, other than the subject is increasingly topical, and others are recognizing the same things I am. Still, that these stories are appearing suggests that the chances are increasing that something will finally be done to either change or abandon the treaty.

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Luxembourg rejects proposed space legislation because of Outer Space Treaty

9:37 am

Luxembourg’s legislature has rejected a proposed space regulatory framework because it did not address the legal restrictions on property rights imposed by the United Nations Outer Space Treaty.

Schneider, the deputy prime minister and minister for economy, presented a bill whose objective was to set a legal framework and give legal security to the property of minerals and other valuable resources in space, in particular on asteroids, and to regulate the authorisation and surveillance of both exploration and mining missions.

In a formal opinion published on 7 April, the council noted that private property claims are illegal or at least not legally binding in most of the international treaties and agreements relating to space and celestial bodies.

Neither the UN treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies of 1967, nor the agreement governing the activities of states on the moon and other celestial bodies of 1979 (which was not ratified by Luxembourg) answer the question of private property of space resources.

What is most important here is that the Luxembourg government now intends to “to ask for a revision of the question of property in the Outer Space Treaty.” As I said in my op-ed in The Federalist on Monday, nations are increasingly recognizing that the Outer Space Treaty is a problem for property rights, and needs to be revised. Otherwise, private development will be difficult if not impossible.

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New Zimmerman op-ed in The Federalist

1:09 pm

As I noted earlier in the week, my op-ed outlining my proposed Trump space policy was today published in The Federalist. The title: “How President Trump Could Jumpstart Space Settlements.” The key quote:

So what should Trump do? At this moment he has a wonderful opportunity to put his stamp on the future, and steer the entire human race to the stars. Trump should propose a new Outer Space Treaty, superseding the old, that would let nations plant their flags in space. This new treaty should establish the rules by which individual nations can claim territory and establish their law and sovereignty on other worlds or asteroids.

From here I go into great detail about how that new treaty would function, laying out how it would encourage the peaceful settlement of the solar system while encouraging private enterprise and the establishing of law and freedom for future space settlers.

Read it all.

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House leans to less regulation of commercial space

9:35 am

During a hearing on March 8 of the House subcommittee on space the representatives overall pushed for less regulation of commercial space activities.

The overall problem was once again dealing with the Outer Space Treaty:

At a March 8 hearing of the subcommittee, members and witnesses grappled with the issue of how the government should oversee emerging commercial space activities in order to comply with obligations to the Outer Space Treaty, including whether such oversight is, in fact, required. Such “authorization and continuing supervision,” as specified in Article 6 of the treaty, is handled today by various agencies for commercial communications and remote sensing satellites and for launch. It’s less clear who would regulate new activities, ranging from commercial lunar landers to satellite servicing efforts, creating uncertainty in industry about who, if anyone, could provide that authorization and continuing supervision.

An April 2016 report delivered to Congress by the White House’s Office of Science and Technology Policy, required by Section 108 of the Commercial Space Launch Competitiveness Act of 2015, recommended what it called a “mission authorization” approach for providing that oversight. This approach would be modeled on the payload reviews performed by the Federal Aviation Administration during the launch licensing process, including an interagency review of proposed missions. While the mission authorization concept had won support from many in industry, as well as the FAA and some members of Congress, a change of administrations and its approach to regulation has emboldened some who want to limit industry regulation.

“Unfortunately, the Obama administration issued a report last year that called for expansive regulations over all types of private space activities,” said Rep. Lamar Smith (R-Texas), chairman of the House Science Committee, at the hearing. He cited a “crisis of overregulation” in general as a reason to oppose the previous administration’s proposal.

The House members and the witnesses apparently rejected the regulatory proposals that had been put forth by the Obama administration, and were instead searching for ways to limit the amount of regulation required under the Outer Space Treaty.

I say, dump the treaty. Nothing in it helps the development of space by private individuals or companies. Everything in it encourages bureaucracy and the limitation of private property.

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Japan passes its own commercial space law

8:47 am

The competition heats up: Just as the U.S., Luxembourg, the United Kingdom, and others have recently passed laws of clarify and encourage the private commercial development of space, Japan now done so as well, enacting its own commercial space law.

Now that Japan has adopted its Space Activities Act, start-ups are not left wondering what agency they should contact but can go in advance to discuss their plans with officials at a specially designated counter in the Cabinet Office. The new Japanese law also provides government support in the provision of financial guarantees required by commercial space launch operators, such as by arranging third-party liability insurance coverage. The required coverage is calculated on the basis of the maximum probable loss estimated in line with the rocket type and the payload content; in the case of damages in excess of this coverage, the law provides that the government is to pay for the residual damages up to a certain limit. This is similar to arrangements that have been adopted in the United States and France, although the French government sets no limit on payments.

In addition, Japan’s Space Activities Act provides that the launch operator bears liability for accident damages even if they are due to problems in the payload. This channeling of liability would seem to be disadvantageous to launch operators, but it can be expected to enhance the competitive position of the Japanese companies providing this service, because it reassures customers around the world who are seeking to have their satellites put into orbit. France is the only other country that has adopted a similar provision.

The article is worth reading in that it provides a good overview of the history of space law since the 1960s, as well as the political background that helps explain why Japan has lagged behind in the commercialization of its space industry.

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Congressman proposes new legislation to better regulate commercial space

9:48 am

We’re here to help you! In an effort to guarantee that the United States remains compliant with the UN Outer Space Treaty when its private citizens begin flying commercial operations in space, Congressman Bridenstine (R-Oklahoma) is proposing new legislation that would better supervise and regulate the emerging commercial space industry.

Bridenstine explained that his top concern is that a U.S. company will proceed with a plan to put a spacecraft on the Moon or conduct on-orbit servicing or some other new type of activity only to have a “near-peer” country like Russia or China complain at the last minute that the United States is violating the OST. That would put the United States “in a difficult position,” he argues. Therefore he sees the need for “airtight” legislation that sets up a process by which the government authorizes and supervises these private companies. Once a company has gone through the process, the United States can unequivocally demonstrate to the international community that it has, in fact, complied with the treaty.

The Obama Administration has been open to working with these new companies, but he wonders if that will remain true over the long term future. He insisted that Congress “needs to exert its authority and power so that whatever administration comes next or is in place 50 years from now, the process exists” and is not subject to a new administration’s “whims.” He also worried that without a legislative solution, it could become a matter of “executive branch regulation by default.” That opens the possibility of some agency saying no, with no recourse for the private sector.

Read the whole report at the link. If you believe in freedom, competition, and private enterprise, it will chill your bones. At no time does anyone suggest that maybe the United States should simply get out of the Outer Space Treaty, as we are legally allowed to do according to the treaty’s own language. The treaty itself is a very bad law, as it makes it impossible for any private citizen or company in space to be protected under U.S. law, leaving everything instead in the control of United Nations bureaucrats and the polyglot of nations, many quite tyrannical, that dictate UN policy. Bridenstine’s proposals will only make this situation worse, as it will not only keep all control in the hands of the UN, but it will saddle American citizens with further regulations imposed by our own government.

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Luxembourg to establish space property rights

10:34 am

The competition heats up: The government of Luxembourg today announced an initiative to establish a legal framework that will ensure property rights in space for private investors.

The Luxembourg Government announced a series of measures to position Luxembourg as a European hub in the exploration and use of space resources. Amongst the key steps undertaken, as part of the spaceresources.lu initiative, will be the development of a legal and regulatory framework confirming certainty about the future ownership of minerals extracted in space from Near Earth Objects (NEO’s) such as asteroids.

Luxembourg is the first European country to announce its intention to set out a formal legal framework which ensures that private operators working in space can be confident about their rights to the resources they extract, i.e. rare minerals from asteroids. Such a legal framework will be worked out in full consideration of international law. Luxembourg is eager to engage with other countries on this matter within a multilateral framework.

The announcement is a bit vague about what exactly Luxembourg really plans to do. For example, it is unclear if this framework will only apply to Luxembourg citizens, or will be used to bring the private efforts from other countries to Luxembourg (the more likely scenario). It also does not tell us how the initiative will deal with the UN Outer Space Treaty, which essentially outlaws countries from establishing their own legal framework in space. Individuals can supposedly own private property in space under that treaty, but no country can claim territory or impose its own legal framework on any territory, thus making any private property claims unclear and weak.

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Mainstream media outlet notices possible news!

9:40 am

Last week President Obama signed the revisions to the Commercial Act that is being touted as allowing Americans property rights in space.

I have been following the news coverage of this event, and even though there have been many articles incorrectly pushing the above spin, only today was there a news story that finally noticed that these touted property rights would violate the Outer Space treaty.

The content of the second link above, though it notices the possible violations to the Outer Space treaty, is also still a pitiful example of journalism. It is very clear from reading the article that no one involved in writing it (the article’s byline is CBC News) ever read the newly passed law. I have, and found that nowhere in it does it actually grant Americans property rights in space. What it does do is demand that the executive branch support that idea and write a number of reports and studies to demonstrate that support.

The goal I think of this new law is to begin the political process towards the U.S. eventually pulling out of the Outer Space treaty. Congress is essentially stating that it doesn’t agree with the language of that United Nations treaty, and it wants the U.S. government to begin the process of either getting it changed, or preparing to pull out. (The treaty does provide language allowing nations to pull out. You give one year’s notice, and then do so.)

It would be nice if journalists who write about this subject did the simple and easy research necessary for reporting it intelligently.

Until they do, however, I guess people will just have to come here (written with a grin).

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A petition to have the U.S. withdraw from the United Nations Outer Space Treaty has been submitted to the White House.

3:53 pm

Now’s here’s a good idea: A petition to have the U.S. withdraw from the United Nations Outer Space Treaty has been submitted to the White House.

Read it. Mark Whittington, who submitted it, is absolutely right. We get out, we can claim territory on the Moon and thus apply U.S. law to that territory. People and companies could thus own land and have an opportunity to make a profit from their property.

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