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S. HRG. 115–219 

REOPENING THE AMERICAN FRONTIER: 

EXPLORING HOW THE OUTER SPACE TREATY 

WILL IMPACT AMERICAN COMMERCE 

AND SETTLEMENT IN SPACE 

HEARING 

BEFORE THE

SUBCOMMITTEE ON SPACE, SCIENCE, 

AND COMPETITIVENESS 

OF THE

COMMITTEE ON COMMERCE, 

SCIENCE, AND TRANSPORTATION 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

MAY 23, 2017 

Printed for the use of the Committee on Commerce, Science, and Transportation 

( 

Available online: http://www.govinfo.gov 

(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

JOHN THUNE, South Dakota, Chairman 

ROGER F. WICKER, Mississippi 

ROY BLUNT, Missouri 

TED CRUZ, Texas 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

DAN SULLIVAN, Alaska 

DEAN HELLER, Nevada 

JAMES INHOFE, Oklahoma 

MIKE LEE, Utah 

RON JOHNSON, Wisconsin 

SHELLEY MOORE CAPITO, West Virginia 

CORY GARDNER, Colorado 

TODD YOUNG, Indiana 

BILL NELSON, Florida, Ranking 

MARIA CANTWELL, Washington 

AMY KLOBUCHAR, Minnesota 

RICHARD BLUMENTHAL, Connecticut 

BRIAN SCHATZ, Hawaii 

EDWARD MARKEY, Massachusetts 

CORY BOOKER, New Jersey 

TOM UDALL, New Mexico 

GARY PETERS, Michigan 

TAMMY BALDWIN, Wisconsin 

TAMMY DUCKWORTH, Illinois 

MAGGIE HASSAN, New Hampshire 

CATHERINE CORTEZ MASTO, Nevada 

NICK ROSSI, Staff Director 

ADRIAN ARNAKIS, Deputy Staff Director 

JASON VAN BEEK, General Counsel 

KIM LIPSKY, Democratic Staff Director 

CHRIS DAY, Democratic Deputy Staff Director 

RENAE BLACK, Senior Counsel 

SUBCOMMITTEE ON SPACE, SCIENCE, AND COMPETITIVENESS 

TED CRUZ, Texas, Chairman 

JERRY MORAN, Kansas 

DAN SULLIVAN, Alaska 

MIKE LEE, Utah 

RON JOHNSON, Wisconsin 

SHELLEY MOORE CAPITO, West Virginia 

CORY GARDNER, Colorado 

EDWARD MARKEY, Massachusetts, Ranking 

BRIAN SCHATZ, Hawaii 

TOM UDALL, New Mexico 

GARY PETERS, Michigan 

TAMMY BALDWIN, Wisconsin 

MAGGIE HASSAN, New Hampshire 

(III) 

C O N T E N T S 

Page 

Hearing held on May 23, 2017 ............................................................................... 1 

Statement of Senator Cruz ..................................................................................... 1 

Letter dated May 22, 2017 to Hon. John Thune and Hon. Bill Nelson 

from Christopher Johnson, J.D., LL.M., Space Law Advisor, Secure 

World Foundation and Ian Christensen, Project Manager, Secure World 

Foundation ..................................................................................................... 3 

Letter dated May 17, 2017 to Senator Ted Cruz, Chairman; and Senator 

Edward Markey, Ranking Member, and Members of Space, Science, 

and Competitiveness Subcommittee from Michael J. Listner, Esquire, 

Space Law & Policy Solutions ...................................................................... 7 

Letter dated May 22, 2017 to Hon. Ted Cruz and Hon. Edward Markey 

from Arthur M. Dula, Trustee, and J. Buckner Hightower, Trustee, 

Heinlein Prize Trust ..................................................................................... 12 

Statement of Senator Markey ................................................................................. 2 

Statement of Senator Nelson .................................................................................. 14 

Statement of Senator Peters ................................................................................... 46 

Statement of Senator Hassan ................................................................................. 49 

WITNESSES

James E. Dunstan, Founder, Mobius Legal Group, PLLC ................................... 14 

Prepared statement .......................................................................................... 16 

Laura Montgomery, Attorney and Proprietor, Ground Based Space Matters, 

LLC ........................................................................................................................ 24 

Prepared statement .......................................................................................... 25 

Matthew P. Schaefer, Veronica A. Haggart & Charles R. Work Professor 

of International Trade Law; Co-Director—Space, Cyber and Telecommunications Law Program, University of Nebraska College of Law; and CoChair, American Branch of International Law Assoc. Space Law Committee .................................................................................................................... 31 

Prepared statement .......................................................................................... 32 

Robert (Bob) Richards, Founder and Chief Executive Officer, Moon Express, 

Inc. ......................................................................................................................... 54 

Prepared statement .......................................................................................... 55 

Peter Marquez, Vice President for Global Engagement, Planetary Resources .. 60 

Prepared statement .......................................................................................... 62 

Mike Gold, Vice President, Washington Operations and Business Development, Space Systems Loral ................................................................................. 64 

Prepared statement .......................................................................................... 66 

Pamela A. Melroy, U.S. Air Force (Retired), and former Astronaut ................... 72 

Prepared statement .......................................................................................... 73 

APPENDIX

Letter dated May 24, 2017 to Hon. John Thune and Hon. Bill Nelson from 

the International Institute of Space Law ........................................................... 85 

Letter dated June 5, 2017 to Hon. John Thune and Hon. Bill Nelson from 

Eric Klein, Lifeboat Foundation ......................................................................... 87 

Response to written questions submitted by Hon. Bill Nelson to: 

James E. Dunstan ............................................................................................ 88 

Laura Montgomery ........................................................................................... 95 

Matthew P. Schaefer ........................................................................................ 95 

Peter Marquez .................................................................................................. 96 

Mike Gold .......................................................................................................... 97 

Pamela A. Melroy ............................................................................................. 98 

(1) 

REOPENING THE AMERICAN FRONTIER: 

EXPLORING HOW THE OUTER SPACE TREATY 

WILL IMPACT AMERICAN COMMERCE 

AND SETTLEMENT IN SPACE 

TUESDAY, MAY 23, 2017 

U.S. SENATE, 

SUBCOMMITTEE ON SPACE, SCIENCE, AND COMPETITIVENESS, 

COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:31 p.m. in room 

SR–253, Russell Senate Office Building, Hon. Ted Cruz, Chairman 

of the Subcommittee, presiding. 

Present: Senators Cruz [presiding], Gardner, Nelson, Markey, 

Peters, and Hassan. 

OPENING STATEMENT OF HON. TED CRUZ, 

U.S. SENATOR FROM TEXAS 

Senator CRUZ. Good afternoon. This hearing is called to order. 

Fifty years ago, the United States and the Soviet Union were 

locked in a period of intense international crisis. Two decades of 

the Cold War had resulted in the Berlin Blockade, the Soviet 

Union’s testing of the atomic bomb, the successful launch of Sputnik, the Cuban Missile Crisis, and the Vietnam war. However, despite the prolonged period of intense international crisis, a remarkable event occurred. The United States and the Soviet Union were 

able to come together and author the Outer Space Treaty, which 

was intended to become a foundation for all future activity in outer 

space. 

The main tenets of the treaty include the prohibition of the 

placement of nuclear weapons and other weapons of mass destruction in space or on a celestial body; the requirement that states are 

responsible for national space activities, whether carried out by 

governmental or non-governmental entities; and states that outer 

space, including the Moon and other celestial bodies, are not subject to national appropriation by claim of sovereignty. Following 

ratification by the Senate, the United States, the United Kingdom, 

and the Soviet Union were among 60 nations to sign the Outer 

Space Treaty, with signing ceremonies in Washington, D.C., London, and Moscow, on January 27, 1967. President Lyndon B. Johnson hailed the signing of the Treaty as, ‘‘an inspiring moment in 

the history of this human race.’’ 

However, in the half century that has since passed, many articles 

of the Treaty haven’t been fully tested, as the majority of activities 

2 

in space have primarily been carried out by governmental entities. 

But that could soon change as the United States is poised to lead 

an explosion in commercial space activity that will see American 

companies look to land on the surface of the Moon, service satellites, and mine asteroids which may contain platinum and other 

precious metals valued upwards of trillions of dollars. 

While the future appears bright, we cannot afford to become complacent. The United States does not stand alone in this new emerging space race. Just last month, it was announced that China and 

the European Space Agency are interested in creating an outpost 

on the Moon. 

As activities in space increase, they will undoubtedly pose new 

challenges as countries and companies compete for resources 

throughout the universe. We should anticipate that there will be 

conflicts as countries and private industry race to reach areas of 

the Moon that hold significant advantages, such as the, ‘‘peaks of 

eternal light’’ and the lunar sites that may hold vast quantities of 

water. These sites will provide economic and operational advantages for those who reach them first. 

Therefore, it’s incumbent on Congress to use this 50-year anniversary of the Outer Space Treaty to properly determine our actual 

international obligations, to decide if specific articles in the treaty 

are self-executing or not, and to ensure that our domestic policy 

moving forward creates an environment that provides certainty for 

industry while protecting our national security. Those decisions 

will be made by this committee, by the Senate as a whole, and by 

the Congress and the President. 

In this committee, this is the second in a series of hearings looking at reopening the American frontier in space. That’s why we’re 

gathered here today. The testimony that this committee will hear 

will help pave the way to the future of space exploration and our 

global competitiveness. Every little boy and every little girl knows 

the experience of looking up into the night sky, looking to the stars 

and wondering what’s out there. That’s the mystery, that’s the 

wonder that is behind this collective endeavor in which we’re engaged. 

If this committee can, working together in a bipartisan manner, 

as it has succeeded in doing for several Congresses now—if we can 

come together behind a strong national space policy that ensures 

continued American leadership in space, then I have no doubt that 

in the not too distant future, those same little boys and little girls 

will be looking up at the Moon, looking up at Mars, and looking 

up at Americans walking on the surface of those bodies, perhaps 

living on the surface of those bodies, exploring new opportunities 

that the mind can scarcely imagine. That’s what this hearing is all 

about. 

With that, Senator Markey. 

STATEMENT OF HON. EDWARD MARKEY, 

U.S. SENATOR FROM MASSACHUSETTS 

Senator MARKEY. Thank you, Mr. Chairman, very much, and 

thank our witnesses. 

This is a very, very forward-looking hearing, because we’re going 

to be looking at how our policy can support a growing commercial 

3 

space industry. We are here today to explore how the Outer Space 

Treaty impacts commerce, impacts settlement in space, and impacts what may be needed to provide a regulatory framework that 

grants certainty to businesses and investors and establishes an 

international understanding of expectations for countries and companies operating in space. 

The Outer Space Treaty provides a set of principles for space activities that guides all countries and is an important foundation to 

build upon to ensure America’s interests are preserved in outer 

space. There are things that were not anticipated or planned for in 

this treaty when it was negotiated in the late 1960s. The testimony 

today will explore some of those issues and how U.S. policy might 

help address some of those concerns. 

In particular, Article VI of the Treaty, which gives governments 

the responsibility for all space activities from their nation, whether 

undertaken by the government or not, has been an issue. I look forward to hearing the views of our witnesses on what is needed to 

create effective and efficient policies that will promote the reasonable, rational, safe, and fair use of space. Space policies need to include room for all nations’ responsible activities, for small businesses as well as large, and for science and non-profit activities as 

well as for-profit activities in this new frontier. 

The United States continues to be a pioneer in space activities, 

and our policy should support the continued innovation that has 

been the key to America’s economic success. I look forward to working with this subcommittee and stakeholders to ensure that America continues to be a leader in space. 

I look forward to working with you, Mr. Chairman, and leaders 

like Senator Peters and Senator Hassan to accomplish that goal. 

Senator CRUZ. Thank you, Senator Markey. 

At the outset, without objection, I want to enter into the hearing 

record a letter from the Secure World Foundation, a letter from Michael J. Listner of Space Law and Policy Solutions, and a letter 

from the Heinlein Prize Trust. 

[The information referred to follows:] 

SECURE WORLD FOUNDATION

May 22, 2017 

To: U.S. Senate Committee on Commerce, Science, and Transportation 

Senator JOHN THUNE, Chairman 

Senator BILL NELSON, Ranking Member 

CC: U.S. Senate Subcommittee on Space, Science, and Competitiveness 

Senator TED CRUZ, Chairman 

Senator EDWARD MARKEY, Ranking Member 

Subject: Letter for the record for the hearing on ‘‘Reopening the American Frontier: 

Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space’’ 

Mr. Chairman, Ranking Member Nelson, and Members of the Committee, 

The Secure World Foundation (SWF) is a non-governmental organization dedicated to ensuring the long-term sustainable use of outer space. We believe that 

strong, predictable, and coherent governance frameworks which take into account 

the long-term interest of all stakeholders are fundamental to ensuing sustainability 

and progress in space activities. As such, SWF has a keen interest in the topics to 

be discussed at the hearing organized by your Subcommittee on May 23, 2017. We 

submit the following letter in support of the Subcommittee’s deliberations. 

4 

1The American Presidency Project, Lyndon B. Johnson—Statement by the President on the 

Need for a Treaty Governing Exploration of Celestial Bodies, 7 May 1966. Available at: http:// 

www.presidency.ucsb.edu/ws/?pid=27581. 2 British Pathe ́, Space Treaty Signed in Washington (1967). Available at: https://youtu.be/ 

086Ygv-4ras and https://youtu.be/s8OlCpkSzZA. See also: The LBJ Library, The President-January 1967. Available at: https://youtu.be/gF5OZ7nANTI?t=25m55s. 3The American Presidency Project, Lyndon B. Johnson—Remarks at the Signing of the Outer 

Space Treaty, 27 Jan. 1967. Available at: http://www.presidency.ucsb.edu/ws/?pid=28205. 4Treaty on Outer Space: Hearings Before the S. Comm. on Foreign Relations, 90th Cong., 7, 

27–29 (1967) (Statements of Sec. of State Dean Rusk and Arthur J. Goldberg, Ambassador). 

Available at: http://bit.ly/2qyy5fr. 5 UN General Assembly Resolution 1962 (XVII), 13 Dec. 1963, Declaration of Legal Principles 

Governing the Activities of States in the Exploration and Use of Outer Space, Principle 5. Available at: http://www.un-documents.net/a18r1962.htm. 6 UNITED NATIONS, COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE, UNION OF SOVIET

SOCIALIST REPUBLICS: DRAFT DECLARATION OF THE BASIC LEGAL PRINCIPLES GOVERNING THE

ACTIVITIES OF STATES PERTAINING TO THE EXPLORATION AND USE OF OUTER SPACE, A/AC.105/ 

L.2 (1962) pg. 2, para. 7. Available at: http://www.unoosa.org/pdf/limited/l/AC105_L002E.pdf. 7 UNITED NATIONS, COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE, LETTER DATED 8 DE- CEMBER 1962 FROM THE REPRESENTATIVE OF THE UNITED STATES OF AMERICA TO THE CHAIRMAN

OF THE FIRST COMMITTEE, A/C.1/881, at para. 6. Available at: http://www.unoosa.org/pdf/ 

garecords/A_C1_881E.pdf. See also Michael Gerhard, Article VI, in COLOGNE COMMENTARY ON

SPACE LAW-VOL. 1, 105 (Hobe, Schmidt-Tedd & Schrogl eds., 2009). 

1. The United States was the driving force behind the Outer Space Treaty 

The U.S. Government was the driving force behind the negotiation and drafting 

of the 1967 Outer Space Treaty, in large part because it supported U.S. national 

security interests. At the time, a major U.S. policy objective was to enable the use 

of satellites to gather intelligence on the Soviet Union, and the principle of ‘‘peaceful 

uses’’ supported that goal. In May 1966, President Lyndon Johnson instructed Ambassador to the U.N. Arthur J. Goldberg to bring to the United Nations Committee 

on the Peaceful Uses of Outer Space (COPUOS) a draft treaty on space for its expedient negotiation and finalization.1 Borrowing from previous instruments, the American draft formed the majority of the final text of the Treaty. The Treaty was subsequently sent to the U.N. General Assembly in December 1966 for adoption in U.N. 

Resolution 2222, and opened for signature in Washington, London, and Moscow. A 

signing ceremony was held at the White House on January 27, 1967,2 where President Johnson commended the Treaty as a step towards the peaceful uses of space.3

At the U.S. Senate Foreign Relations Committee hearings on ratifying the Treaty, 

Secretary of State Dean Rusk and Ambassador Goldberg testified to the Treaty’s 

worth as both an arms control measure that protects U.S. national security and ensured private sector access to space.4 The Treaty entered into force in October 1967, 

and the United States serves as one of the Depository Governments for signatures 

by states becoming party to the Treaty. As 2017 is the fiftieth anniversary of the 

Outer Space Treaty, the United States can rightly be proud of its international 

treatymaking effort, which continues to serve as the foundation of the international 

legal framework for all space activities. 

2. Private space activities were ensured, protected through U.S. negotiation 

During the negotiations of the Outer Space Treaty, the United States was able 

to secure the right of the private sector to engage in space activities. The language 

in the Outer Space Treaty permitting non-governmental private actors to explore 

and use space is taken from an earlier U.N. Resolution on space, the 1963 Principles 

Declaration.5 In that Resolution’s negotiation phase, a draft submitted by the Soviets would have prohibited all non-governmental private activities in space. The Soviet proposal read ‘‘all activities of any kind pertaining to the exploration and use 

of outer space shall be carried out solely and exclusively by states.’’ 6 The American 

counterproposal offered a compromise which assigned responsibility and liability to 

a state for launches from its territory and for launches to which it gave assistance 

or permission.7 The Soviets accepted this compromise permitting private non-governmental entities, and three years later this language from the 1963 Principles 

Declaration made its way unmodified into Article VI of the Outer Space Treaty. In 

summary, the legality of commercial uses of outer space is a success of American 

foresight and diplomatic skill. 

3. The Outer Space Treaty is part of a permissive, open system 

The Outer Space Treaty creates a legal framework that is inherently permissive 

in its nature. The full title of the Outer Space Treaty is the ‘Treaty on Principles 

Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.’ As the title shows, this Treaty is a 

treaty of principles, rather than an exhaustive and comprehensive delineation of 

5 

8See also footnote 4, testimony of Dean Rusk ‘‘The treaty is not complete in all possible details. It does not deal with all problems that may develop. But it is responsible to those problems 

that can be described and forecast today.’’ (pg. 4). 9See generally IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 291 (7th ed.) (2008) 

‘‘Restrictions upon the independence of States cannot be presumed’’; HUGH THIRLWAY, THE LAW

AND PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE, Vol. 1, 505 (2016). 10 U.S. Space Foundation, The Space Report 2016—Overview. Available at: https://www.space 

foundation.org/sites/default/files/downloads/The_Space_Report_2016_OVERVIEW.pdf. 11 Bill Canis, Commercial Space Industry Launches a New Phase (Congressional Research 

Service Report R44708), Dec. 12, 2016, 2. See also Federal Aviation Administration, The Annual 

Compendium of Commercial Space Transportation 2016, Available at: https://www.faa.gov/ 

about/office_org/headquarters_offices/ast/media/2016_Compendium.pdf. 12The Tauri Group, Start-up Space, 2016. 

precise rights and obligations in every circumstance,8 and it is focused on enabling use of outer space. 

The Treaty’s articles contain a finite body of obligations which serve as limits to 

the freedom established in Article I. They include the duty to render assistance to 

foreign astronauts and to return both them and foreign space objects to their 

launching state (Art. V), the duty to bear international responsibility for all national 

space activities (Art. VI), the duty to authorize and continually supervise the activities of non-governmental actors (Art. VI), and the duty of international liability to 

other States Parties to the Treaty for damage from launched space objects (Art. VII). 

Additionally, articles prohibit the placement of nuclear weapons or other weapons 

of mass destruction into space or on celestial bodies (Art. IV), the prohibition on 

space activities causing harmful contamination of celestial bodies and adverse 

changes in the Earth’s environment (Art. IX), and the prohibition on the national 

appropriation of outer space, including the Moon and other celestial bodies (Art. II). 

This short list of obligations are the only limits to the freedoms enshrined in Article 

I. 

The Outer Space Treaty is the foundation of subsequent international law on 

space. The Outer Space Treaty’s Article V, protecting astronauts, was expanded and 

its provisions clarified in the 1968 Astronaut Rescue and Return Agreement. Articles VI and VIII were expanded and clarified in the 1972 Liability Convention. Lastly, Article VIII dealing with registration was expanded and clarified with the 1975 

Registration Convention. In 1986 the UN General Assembly adopted a resolution describing Principles Relating to Remote Sensing of the Earth from Space, providing 

non-binding yet generally accepted guidelines clarifying the relationship of spacebased remote sensing activities to international law. This further work was done 

within COPUOS and led by the United States, and these efforts demonstrate that 

the Outer Space Treaty is the foundation of a system which is open to expansion, 

clarification, and modification. 

Aside from this short list of finite obligations, the framework established by the 

Outer Space Treaty is quite permissive. A general presumption in international law 

is the lotus principle, or that ‘that which is not explicitly prohibited is therefore permitted.’ 9 Taking into account that the Outer Space Treaty refrains from directly addressing or regulating various emerging and prospective activities in outer space, 

applying the lotus principle to the gaps in the Treaty demonstrates that the Outer 

Space Treaty does not clearly restrict any of the commercial activities that so excite 

and inspire the American space community. 

4. The Outer Space Treaty has supported 50 years of commercial activity 

Over the last five decades, the Outer Space Treaty has enabled commercial uses 

of outer space to become a global and multibillion dollar industry. In 2015, worldwide revenues from commercial space products, services, manufacturing, and infrastructure surpassed $247 billion, according to annual figures compiled by the U.S. 

Space Foundation.10 Much of this activity is conducted by U.S. companies and individuals: the United States leads the world in the number of satellites manufactured, 

and, in 2015, the United States conducted more commercial space launches than 

any other country.11 Sources of capital that are enabling innovative space start-up 

activity are concentrated in the United States as well: a 2016 industry report found 

that 66 percent of the more than 250 identified investors in space start-ups are 

U.S.-based, while the remaining 34 percent were distributed through 25 different 

countries.12

These commercial uses of outer space have developed—indeed flourished—under 

domestic law developed in consistency with the system of international space law, 

of which the Outer Space Treaty is a foundational component. Working under the 

principles of the Outer Space Treaty, the United States and other governments have 

developed and implemented domestic legal and regulatory frameworks to enable 

6 

13 UNITED NATIONS, COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE, LEGAL SUB- COMMITTEE, STATUS OF INTERNATIONAL AGREEMENTS RELATING TO ACTIVITIES IN OUTER SPACE

AS AT 1 JANUARY 2017, A/AC.105/C.2/2017/CRP.7 (2017). Available at: http://www.unoosa.org/ 

res/oosadoc/data/documents/2017/aac_105c_22017crp/aac_105c_22017crp_7_0_html/AC105 

_C2_2017_CRP07E.pdf. 14FRANCIS LYALL & PAUL B. LARSEN, SPACE LAW—A TREATISE 418. See also Adam Mann, 

Who’s in Charge of Outer Space?, WALL ST. J., May 19, 2017, quoting Sagi Kfir, General Counsel 

of Deep Space Industries: ‘‘[The Outer Space Treaty] is so fundamental that its principles have 

become customary international law even for those countries that aren’t signatories.’’ Available 

at: https://www.wsj.com/articles/whos-in-charge-of-outer-space-1495195097. 

several categories of commercial activities. It cannot be said that the Outer Space 

Treaty has hindered the commercial uses of outer space that have developed and 

expanded so dramatically in the previous decades. 

At the moment, the main restrictions on further innovation and commercial development of space come largely from U.S. national law, not the Outer Space Treaty. 

U.S. export controls on satellites have already caused the U.S. space sector to lose 

a significant portion of global market share. Several categories of remote sensing 

and on-orbit activities are heavily restricted, or, in some cases, have historically 

been off limits for U.S. commercial entities, enabling foreign competitors to leap 

ahead and establish global markets. And there are several types of commercial 

space activities planned for the near future that do not clearly fall under any of the 

existing national licensing authorities. These gaps create uncertainty that gives rise 

to real-world challenges for start-up companies trying to secure investors and insurers, a phenomenon many new space companies are struggling with. 

5. The U.S. has more effective avenues to further encourage commercial 

space 

It would be extremely difficult, and likely counterproductive, for the United States 

to withdraw from or seek amendment to the Outer Space Treaty. As of 2017, 105 

countries have ratified the Outer Space Treaty.13 These include all of the historically spacefaring states such as the United States, Russia, China, India, Brazil, 

Japan, and all the Member States of the European Space Agency (ESA). A further 

25 countries have signed the Treaty, which expresses their intention to ratify it in 

the future, or at least to not take actions contrary to the purposes of the Treaty. 

Additionally, many of the foundational provisions of the Outer Space Treaty are so 

well respected that they are considered to have passed into the realm of customary 

international law.14

As a consequence of this wide international success, an attempt to amend the 

Treaty is likely to be extremely difficult, and it is not certain it would advance U.S. 

interests. First, if the United States officially broaches the subject of amending the 

Outer Space Treaty, it is likely that other countries would identify issues of their 

own they would like addressed, not all of which would be aligned with U.S. interests. Moreover, given the diversity of countries that are States Parties to the Outer 

Space Treaty, reaching the threshold of 53 required to amend the text (via Art. XV) 

is a serious obstacle. 

However, other avenues exist to clarify and define the rights and obligations of 

states under the broad principles already established by the Outer Space Treaty. 

The first is through national space law and regulation. Here, the United States has 

a significant opportunity to take a leadership role in the international community. 

Historically, other countries have modeled their national policy and regulation on 

the examples provided by the United States. Thus, how the United States approaches the current issue could have widespread international implications. Additionally, the United States can also shape the interpretation and implementation of 

the Outer Space Treaty through multilateral initiatives. Over the last few decades, 

the United States has played a leadership role in establishing international nonbinding norms and guidelines regarding satellite broadcasting, space debris mitigation, nuclear power sources for use in space, and the long-term sustainability of 

space activities. This work is done both within COPUOS and elsewhere. For example, governments have cooperated through the Inter-Agency Space Debris Coordination Committee (IADC) to coordinate discussion of technical and policy matters related to space debris mitigation. This process represents the development of additional clarifications without require amendment to any existing treaty. These multilateral efforts are seen as conducive to the creation of norms and best practices 

which can receive widespread acceptance and adherence. 

6. Conclusion 

We strongly believe that continuing to support the Outer Space Treaty and further enhancing U.S. national oversight frameworks will be the best method for proVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\29998.TXT JACKIE
7 

1The Treaty on Principles Governing the Activities of States in the Exploration and Use of 

Outer Space, Including the Moon and Other Celestial Bodies, October 10, 1967, 18 UST 2410, 

610 UNTS 205. 

moting commercial development in space. As more countries acquire the capability 

to engage in commercial space activities, it will be important for U.S. companies to 

be working inside a predictable international legal framework that can encourage 

and protect investments. The Outer Space Treaty provides the foundational level of 

certainty in the international system that commercial space entrepreneurs, businesses, and capital sources require to develop further innovative activities. 

Rather than an arduous and unpredictable international amendment process, domestic space law is often the best avenue to address any gaps or needs for further 

clarity, especially regarding emerging activities in space such as space debris removal, satellite servicing, and celestial resource use. Activities which engender 

international apprehension might also be pursued on a multilateral basis in the 

form of new instruments that augment, rather than replace, the Outer Space Treaty. Modification or withdrawal from the Outer Space Treaty leaves, on balance, too 

many uncertainties in outcome, with little clear actual utility, either political or 

legal. 

The Secure World Foundation would like to once again commend the Subcommittee for focusing on such an important issue, and express our support for U.S. 

governmental efforts to respond to the needs of the commercial space sector while 

ensuring a sustainable international governance framework in outer space. 

Respectfully, 

CHRISTOPHER JOHNSON, J.D., LL.M., 

Space Law Advisor, 

Secure World Foundation. 

IAN CHRISTENSEN, 

Project Manager, 

Secure World Foundation. 

SPACE LAW & POLICY SOLUTIONS

Rochester, NH 

MEMORANDUM

THIS MEMORANDUM AND ITS CONTENTS IS FOR INFORMATIONAL 

PURPOSES ONLY. OPINIONS ARE THOSE OF THE AUTHOR, AND IT 

SHOULD NOT BE RELIED UPON AS LEGAL ADVICE, IS NOT LEGALLY 

PRIVILEGED AND DOES NOT CREATE AN ATTORNEY/CLIENT 

RELATIONSHIP. 

To: Senator Ted Cruz (R–TX), Chairman, Senator Edward J. Markey (D–MA), Ranking Member and Members of Space, Science and Competitiveness Subcommittee 

From: Michael J. Listner, Esquire 

CC: Senator John Thune (R–SD), Chair, Senate Committee on Commerce, Science, 

and Transportation 

Date: May 17, 2017 

Re: The Outer Space Treaty: Implications of Amendment and Withdrawal. 

Senator Cruz, Senator Markey and Honorable Members of the Committee, 

My name is Michael J. Listner, and I am an attorney licensed to practice law in 

and before the state and Federal courts of the State of New Hampshire. I am also 

the Founder and Principal of the legal and policy consultation firm, Space Law and 

Policy Solutions and the editor of the space law and policy briefing-letter The Pre ́cis. 

This Subcommittee will examine the effect of The Treaty on Principles Governing 

the Activities of States in the Exploration and Use of Outer Space, Including the 

Moon and Other Celestial Bodies (Outer Space Treaty) on free enterprise with regards to both current and future private outer space activities.1 Implicit in the discussion of the Outer Space Treaty and private outer space activities is the question 

of amendment or withdrawal. 

The question of amending or withdrawing from the Outer Space Treaty is polarizing. The global community hailed the 50th anniversary of the Outer Space Treaty 

8 

2 ’Property’ in the strict legal sense is an aggregate of rights which are guaranteed and protected by government. Fulton Light, Heat & Power Co. v. State, 65 Misc. 263, 270. The Homestead Act in essence did this by exercising national sovereignty over lands formerly held by Native Americans and guarantying homesteaders possession subject to conditions within the Act. 

This act of national sovereignty is the antithesis of the res communis doctrine and specifically 

prohibited in Article II of the Outer Space Treaty, which makes analogies of outer space to the 

Homestead Act inaccurate. 3See Treaty on Principles Governing the Activities of States in the Exploration and Use of 

Outer Space, Including the Moon and Other Celestial Bodies, October 10, 1967, art. I & II, 18 

UST 2410. 4 Res communis is a concept derived from Roman property law that refers to the light and 

the air. See Merriam-Webster Dictionary at https://www.merriam-webster.com/dictionary/ 

res%20communes. See also, BLACK’S LAW DICTIONARY, Sixth Edition, res communes—‘‘In the 

civil law, things common to all; that is, those things which are used and enjoyed by everyone, 

even in the single parts, but can never be exclusively acquired as a whole, e.g. light and air.’’ 

The idea behind res communis in the reference to both the Antarctic Treaty and the Outer Space 

Treaty is that no sovereign can extend [state] ownership much in the same way no one can extend control over the air or the light. In other words, in the case of outer space and celestial 

bodies, they belong to no nation. It is notable in regards to usage and passage, the high seas 

are considered res communis. 5See Treaty on Principles Governing the Activities of States in the Exploration and Use of 

Outer Space, Including the Moon and Other Celestial Bodies, October 10, 1967, art. IV, 18 UST 

2410. 6 Even though Article IV has an express prohibition against the operation of nuclear weapons 

in outer spaces, the broad nature of the Outer Space Treaty is allowed a potential work-around 

to that prohibition, which was considered as a lead up to the Strategic Defensive Initiative (SDI) 

as proposed by President Reagan. In particular, the X-ray laser system proposed by Edward 

Teller and researched by Project Excalibur would have implicated Article IV as the system 

would have consisted of a small nuclear device launched aboard an ICBM or SLBM that when 

detonated in outer space would have channeled a fraction of the energy released into high intensity laser beams that would destroy enemy missiles during their boost phase. The device would 

be destroyed in the course of detonation and it’s this operation of a nuclear weapon in outer 

being open for signature this past January with the expectation of the accord lasting 

another fifty years. On the other side, space advocates, especially in the community 

advocating settlement and exploitation, look to outer space as the new frontier akin 

to the 1800s and the opening of the West. This special interest sees the Outer Space 

Treaty as an impediment to settling outer space and alludes to legislation like the 

Homestead Act of 1862 as the model for the future settlement of outer space.2 The 

res communis 3 principle of the Outer Space Treaty found in Article I and II precludes a grant of title to land to private individuals similar to the 1862 Act.4

Understanding the Rationale for The Outer Space Treaty 

The Outer Space Treaty is a culmination of principles with legal rights and obligations interspersed. The Outer Space Treaty is purposely ambiguous and during 

negotiations the major space powers most notably the United States, reserved the 

right to interpret those ambiguities broadly. This has been most recently demonstrated with the interpretation of Article I and Article II of the Outer Space Treaty by the United States to permit the extraction and possession of ‘‘space resources’’ 

by private citizens as enacted in Title 51, Chapter 513 of the United States Code. 

The Outer Space Treaty also contains strict prohibitions and legal duties. A 

prominent prohibition is found in Article IV, which expresses the arms control nature of the Outer Space Treaty and prohibits the placement of nuclear weapons in 

outer space, including celestial bodies. 

States Parties to the Treaty undertake not to place in orbit around the Earth any 

objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer 

space in any other manner. 

Article IV also expresses the mandate outer space should be used for peaceful purposes and precludes the placement of military installations in space, including the 

Moon and other celestial bodies. 

The Moon and other celestial bodies shall be used by all States Parties to the 

Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct 

of military maneuvers on celestial bodies shall be forbidden. The use of military 

personnel for scientific research or for any other peaceful purposes shall not be 

prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited. 5

The idea behind Article IV is nuclear weapons or other weapons of mass destruction are not permitted and outer space is to be used for peaceful purposes.6

9 

space, and not the resulting laser beam Article IV technically would have prohibited. However, 

it could have been argued the devices were purely defensive and were not actually placed in 

orbit to remain there, but rather they were of a transient nature and only remained in outer 

space long enough to fulfill their defensive function against incoming enemy missiles. Moreover, 

because the function of the X-ray laser system would have been defensive and hence non-aggressive, it could be argued its use would have correlated with Article IV’s principle outer space 

should be used for peaceful purposes. See Maj. John E. Parkenson, Jr., International Legal Implications of the Strategic Defense Initiative, 116 MIL. L. REV. 67, 86–89 (Spring 1987). 7See Treaty on Principles Governing the Activities of States in the Exploration and Use of 

Outer Space, Including the Moon and Other Celestial Bodies, October 10, 1967, art. VI, 18 UST 

2410. 8The requirement to authorize and continually supervise is a compromise between the United 

States and the Soviet Union during the negotiations of the Outer Space Treaty. The Soviet 

Union took the position outer space activities should be limited to government actors while the 

United States wanted to include non-government actors. The compromise was reached to include 

non-government actors with the stipulation their activities be authorized and continually supervised in a manner left to the discretion of the State. 9See generally, Project Horizon, Volume I, Summary and Supporting Considerations, 

March 21, 1959 [Regraded Unclassified, September 21, 1961], pp. 61–81, available at http:// 

nsarchive.gwu.edu/NSAEBB/NSAEBB479/docs/EBB-Moon01_sm.pdf. 10Prior to the launch of Sputnik-1, the Soviet Union did not limit its sovereignty to the stratosphere and regarded outer space above its territory part of its sovereign control. However, the 

launch of Sputnik-1 challenged this claim of sovereignty as Sputnik would be clearly violating 

the ‘‘territory’’ of other nations. The Soviets when confronted with this conundrum tried to explain Sputnik had not violated the territory of other nations as it did not pass over the territory 

of those nations, but rather the territories of other nations passed beneath Sputnik. See Delbert 

R. Terrill, Jr., The Air Force Role in Developing International Space Law, Air University Press, 

May 1999, pp. 27–30. 11 Id. at pp. 3–9. 12See generally, Antarctic Treaty, June 21, 1961, 12 UST 794; 402 UNTS 7. 13See generally, Narrative, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space 

Treaty), Bureau of Arms Control and Compliance, Department of State, available at https:// 

www.state.gov/t/isn/5181.htm. 

Another legal obligation/duty is found in Article VI. 

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. 7

Article VI requires States to bear responsibility for national activities in outer 

space whether those activities are performed by government or non-government actors. Article VI also includes the mandate for activities of non-government entities 

to be ‘‘authorized’’ and ‘‘continually supervised’’.8

The Outer Space Treaty was conceptualized in the geopolitical environment after 

World War II and in the advent of the Cold War with the Soviet Union. In particular the Outer Space Treaty was intended as a hedge against the possibility the 

Soviet Union would reach the Moon first and make territorial claims with the resultant military and national security implications. This concern and its implications were manifest in Project Horizon, which was a 1959 U.S. Army proposal to 

establish a lunar outpost. In terms of policy considerations, the Project Horizon proposal extolled the national security implications of establishing a lunar outpost before the Soviet Union reached the Moon.9

This was considered a very real possibility with the Soviet success with Sputnik1 and territorial claims the Soviet Union made prior to that accomplishment.10 Even 

before Sputnik, Eisenhower perceived outer space as a potential Pearl Harbor and 

sought to meld space exploration, disarmament and the creation of international law 

through his idea of ‘‘space for peace’’ and an environment free from national military 

rivalries.11 This led to his proposal for a new international treaty [the Outer Space 

Treaty] that would be modeled after the Antarctic Treaty of 1959 12 in order to prevent a new form of colonial competition in outer space.13

The Outer Space Treaty served its Cold War role well. However, the question is 

begged whether it is relevant in a post-Cold War geopolitical environment and 

10 

14 In its simplest terms 51 U.S.C § 51303 creates a usufruct. A usufruct is a real property interest that can simply be described as the conjoining of the right to ‘‘use’’ property and the right 

to the ‘‘fruits’’ of that use. In other words, while ‘‘use’’ grants a property interest that allows 

a private person to use resources belonging to the land of another to support their occupancy 

on the land, a usufruct allows the person to harvest the fruits of the occupied land and convert 

it to their own use, i.e., possess, own, transport, use, and sell. However, in the context of international law, ‘‘use’’ and ‘‘usufruct’’ are synonymous and considered an activity that creates a 

property interest in personal property as opposed to a real property interest that permits an 

activity, i.e., mining. The recognition of the need to define an usufruct or ‘‘use’’ as an activity 

and not a real property interest confirms the understanding of the Outer Space Treaty does not 

permit a real property interest. Compare, Louisiana Mineral Code, La. R.S. § 31:21, which defines a usufruct for minerals as a ‘‘mineral servitude’’ where ‘‘[a] mineral servitude is the right 

of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to possession and ownership.’’ 15The Bogota Declaration was an attempt by nations lying on or near the equator to make 

sovereign territorial claim of corresponding sections of geosynchronous orbital slots reside. Given 

the unique nature of geosynchronous orbit, the equatorial nations signing the Declaration stipulated because of the unique attributes of geosynchronous orbital slots, they represent a limited 

natural resource that was better administered by the nations under which the slots reside as 

opposed to administration by the International Telecommunications Union (ITU). The Declaration was flatly rejected by the major spacefaring nations and non-spacefaring nations alike, and 

the United States took the opportunity in responding to the Declaration to announce its own 

policy positions with regards to commercial activities in outer space. 16The United States has taken the position the ‘‘province of all mankind’’ provisions are compatible with conducting and developing free enterprise and the right to determine how it shares 

the benefits and results of U.S. space activities. See J.I. Gabrynowicz, the ‘‘Province’’ and ‘‘Heritage’’ of Mankind Reconsidered: A New Beginning, p. 694, citing Christol, C.Q. (1982), The Modern International Law of Outer Space, p. 40. 17Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer 

Space, Including the Moon and Other Celestial Bodies, October 10, 1967, art. XV, 18 UST 2410. 18 In the case of non-interference with space resource extraction, agreement could be made bilaterally between two nations through a non-binding protocol as opposed going through an 

amendment process. This idea is beyond the scope of this Memorandum but illustrates optional 

methods of addressing some of the short-comings of the Outer Space Treaty. 19There is also the matter of the soft-power response to the United States unilaterally seeking 

to amend the Outer Space Treaty. Geopolitics being what it is, many of the non-developed countries (with encouragement from the Russian Federation and perhaps China) would raise the 

specter of the United States seeking to leverage its status as a superpower to get what it wants. 

On the other hand, the government of Luxembourg has suggested amendment to the Outer 

Space Treaty might be in order to address concerns its legislative body has raised with regards 

to space resources. Allowing a nation like Luxembourg to broach the topic of amendment with 

the United States riding its coattails might be a path to amendment. Yet, any amendment Luxwhether its purpose to prevent geopolitical competition in outer space is impeding 

development of outer space in particular the development of outer space by the private sector. Certainly, the interpretation of the Outer Space Treaty by the United 

States to ‘‘allow’’ the harvesting of ‘‘space resources’’ by U.S. citizens by classifying 

a property interest in space resources as an activity leading to a property interest 

illustrates the limitations of the Outer Space Treaty with regards to private enterprise.14 It also represents the limitations of the policy position taken the United 

States prior to and in response to the Bogota Declaration 15 of 1976.16 In other 

words, the Outer Space Treaty is being stretched to permit the extraction and ownership of space resources, but it cannot be stretched to provide commercial operators 

with the holy grail of title to sections of or celestial bodies in their entirety. 

Amendment or Withdrawal From the Outer Space Treaty? 

The effect of the Outer Space Treaty on private enterprise and real property 

rights are at the center of the controversy as to whether to seek amendment or 

withdraw. Amendment to the Outer Space Treaty is permitted per Article XV: 

Any State Party to the Treaty may propose amendments to this Treaty. Amendments shall enter into force for each State Party to the Treaty accepting the 

amendments upon their acceptance by a majority of the States Parties to the 

Treaty and thereafter for each remaining State Party to the Treaty on the date 

of acceptance by it.17

While many parties to the Treaty express the desire to amend provisions for various reasons from time-to-time, none of the Big Three (United States, Russian Federation and People’s Republic of China) have shown an interest in doing so. Even 

if amendment was politically palatable, the proposed amendment(s) would have to 

be approved by a majority of the parties of the Treaty.18 Yet, when it comes to the 

holy grail of title to sections of or celestial bodies in their entirety, amendment to 

the res communis principle is politically unviable and would undermine the foundation of the Outer Space Treaty itself.19 This means amending the Outer Space TreaVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\29998.TXT JACKIE
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embourg might propose would still not reach the level of change needed to acquire real property 

rights. 20 A possible amendment that might allay the concerns of private enterprise is the idea of ‘‘exclusion zones’’ around the area of an activity authorized under Article VI. However, since any 

personnel and space objects performing activities under Article VI are subject to the continuing 

jurisdiction or Article VIII, there is an argument these exclusion zones would represent ‘‘pockets 

of national appropriation’’ of a celestial body, which would violate Article II of the Outer Space 

Treaty. See Treaty on Principles Governing the Activities of States in the Exploration and Use 

of Outer Space, Including the Moon and Other Celestial Bodies, October 10, 1967, art. II & art. 

VIII, 18 UST 2410. 21Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer 

Space, Including the Moon and Other Celestial Bodies, October 10, 1967, art. XVI, 18 UST 2410. 22 Even though the Senate would weigh in on potential withdrawal from the Outer Space 

Treaty, the final decision would remain with the Executive Branch, especially given the Outer 

Space Treaty permits withdrawal. That does not preclude the members of the Senate voicing 

their opposition. 23 It’s unclear how the People’s Republic of China would respond to an announcement of withdrawal. On the one hand, China could take the opportunity to enhance its soft-power standing 

in the United Nations and level political rhetoric against the United States. On the other hand, 

it could take a stance similar to ‘‘space resources’’ and quietly watch while the United States 

is pummeled with the political fallout and then announce its own withdrawal following the path 

the United States created without paying the political price. 24 Customary international law is defined as international obligations arising from established 

state practice, as opposed to obligations arising from formal written international treaties. It 

consists of two components. First, there must be a general and consistent practice of states. This 

does not mean that the practice must be universally followed; rather, it should reflect wide acceptance among the states particularly involved in the relevant activity. Second, there must be 

a sense of legal obligation, or opinio juris sive necessitatis. In other words, a practice that is 

generally followed but which states feel legally free to disregard does not contribute to customary law; instead, there must be a sense of legal obligation to the international community. 

States must follow the practice because they believe it is required by international law, not 

merely because they think it is a good idea, or politically useful, or otherwise desirable. The 

definition of customary international law is nuanced because not all states are equal when considering whether a state’s practice and opinio juris sive necessitatis reaches the level of customary international law. See United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1252 (11th Cir. 

2012). In the case of the Outer Space Treaty, there is an argument since the provisions of the 

Continued 

ty may not be able to solve the fundamental issue of real property rights that is 

a central interest for private sector development and settlement.20

In order to address the issue of real property rights, it may be necessary to withdraw from the Outer Space Treaty in its entirety. Article XVI provides for withdrawal: 

Any State Party to the Treaty may give notice of its withdrawal from the Treaty 

one year after its entry into force by written notification to the Depositary Governments. Such withdrawal shall take effect one year from the date of receipt of 

this notification. 21

Withdrawal from the Outer Space Treaty would be no small matter as the geopolitical backlash would be considerable. Such a decision would not be made overnight and would require significant consideration of the potential ramifications not 

only by the Department of State but other agencies including NASA, the Department of Defense, NOAA, the intelligence community and any agency with duties 

that relate to outer space activities and international law and relations. Certainly, 

non-governmental organizations would be queried as to their opinion as would academia and the Senate Foreign Relations Committee.22

The underlying concern to withdrawal is whether the benefits of withdrawing 

from the Outer Space Treaty would outweigh the geopolitical and national security 

implications withdrawal would trigger. If and when the U.S. invoked Article XVI, 

the withdrawal process would instigate condemnations and implicate the trustworthiness of the United States with geopolitical adversaries like the Russian Federation who would use the announcement to enhance its own soft-power in the 

United Nations and particularly among the smaller space-faring and the non-spacefaring nations.23 Even more unsettling, withdrawal could also find opposition from 

traditional geopolitical allies. That being the case, unilateral withdrawal from the 

Outer Space Treaty would be a politically painful process for the United States to 

endure. 

However, the United States could mitigate some of the political fallout by filling 

in the legal vacuum during the withdrawal process with customary international 

law. As part of the withdrawal process, the United States could announce its intention to recognize as custom certain principles and legal obligation in the Outer 

Space Treaty.24 For example, the United States could agree to recognize Articles III 

12 

Treaty have been adhered to for nearly half a century they have already entered the realm of 

custom. 

through XII as binding customary international law subject to its own interpretation 

through state practice. Most critically, the United States would have to address how 

it intends to replace the res communis principle in the Outer Space Treaty in a 

manner that would draw international consensus, especially seeing as unilateral 

withdrawal from the Treaty would likely be precipitated on the rationale of providing its citizens greater rights and flexibility in outer space activities and in particular title to sections of celestial bodies or celestial bodies in their entirety. 

A decision to withdraw would invite substantial resistance not only from the geopolitical community but from domestic political arena as well most notably from the 

Senate, especially in the current hyper-partisan political atmosphere. Additionally, 

academia and other non-governmental organizations that have a vested interest politically and ideologically to maintain the Outer Space Treaty would push back with 

the media likely creating narrative to provide pressure against a withdrawal effort. 

Indeed, the deciding factor of a successful withdrawal effort may lie with the political willingness to resist the resulting international and domestic pressure sure to 

be applied. 

Conclusion 

Amending or withdrawing from the Outer Space Treaty would not be easy nor 

should the decision to do so be trivialized. For such a decision to be made, fundamental consideration must be given to whether the status quo of the Outer Space 

Treaty is relevant to the growing realities of the current geopolitical environment 

and whether it can be stretched to meet the long-term demands of the private sector 

while at the same time taking into consideration the national security interests of 

the United States. The result of a decision to amend or withdraw from the Outer 

Space Treaty lies in no small part as to whether we look upon the Outer Space 

Treaty as a tool to meet a pragmatic geopolitical end or revere it as an immutable 

geopolitical icon. 

Respectively submitted, 

MICHAEL J. LISTNER. 

HEINLEIN PRIZE TRUST

May 22, 2017 

Hon. TED CRUZ, 

Hon. EDWARD J. MARKEY, 

Commerce, Science, and Transportation Committee, 

Space, Science, and Competitiveness Subcommittee, 

United States Senate, 

Washington, DC. 

Dear Chairman Cruz and Ranking Member Markey: 

The Heinlein Prize Trust honors the memory of renowned American author Robert A. Heinlein and his wife, Virginia, by awarding prizes for the advancement of 

commercial spaceflight and conducting a variety of educational outreach activities. 

As its trustees, we write first to thank you for your leadership in passing the Commercial Space Launch Competitiveness Act, which promotes the development of 

commercial spaceflight in the United States in a manner consistent with Robert 

Heinlein’s vision; and second to address issues related to the Outer Space Treaty 

which you have raised in recent public comments and your Subcommittee’s hearing 

this month. 

We recognize that the Outer Space Treaty was a Faustian compromise with the 

USSR. It was an attempt to prevent an Evil Empire from gaining an upper hand 

in the strategically vital realm of outer space, and as a result it left on the bargaining table a wide range of opportunities for the United States. That said, the 

treaty has proven that it can be the foundation for productive international cooperation to explore and develop outer space—and perhaps more importantly, it has not 

yet been shown to impede the efforts of the United States or U.S. entities. 

Of course, Congress and the Administration must remain vigilant to prevent the 

Outer Space Treaty—or any international law—from being used in a manner contrary to its original intent so that it binds the United States in ways not accepted 

by our government at the time it was signed and ratified. When international legal 

activists attempt to assert that the United States has international responsibility 

for the activities of nongovernmental actors as a result of the treaty, those arguVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\29998.TXT JACKIE
13 

ments should be refuted. Space should not be different from aviation and admiralty 

in that respect. 

To the extent that adjustments are needed, we strongly recommend updating U.S. 

law rather than reopening the Outer Space Treaty wherever possible. Fortunately, 

the terms of the Treaty are loose enough that nations can define its application by 

adopting national laws controlling national activities. The Commercial Space 

Launch Competitiveness Act’s provisions on property rights in space resources—by 

our estimation, the most sweeping legislative recognition of property rights in 

human history—is an excellent example. 

The Outer Space Treaty has worked well for 50 years. It is accepted by more than 

100 nations. Trying to change the Treaty now will create significant risks of delay 

and confusion. Such risks should be avoided, especially when the option of changes 

to national law exists. 

Thank you again for your leadership on these matters. As Robert and Virginia 

Heinlein saw so clearly, space is inherently multinational and international. All 

countries are neighbors sharing an ‘‘upper border,’’ outer space. History teaches us 

that nations flourish as neighbors when there is liberty and where commerce is 

managed with minimum regulation within a framework of strong human rights. 

Space resources are effectively infinite, thus cooperation in their use should benefit 

all stakeholders much more than competition. The emergence of humanity into the 

cosmos can be a non-zero sum adventure. All of humanity will win if there is enough 

ordered liberty. 

Sincerely, 

ARTHUR M. DULA, 

Trustee. 

J. BUCKNER HIGHTOWER, 

Trustee. 

Senator CRUZ. We will now turn to the first of two panels that 

this committee will hear. The first panel—we have three witnesses. 

I want to thank each of you for being here today. 

Our first witness is Mr. James Dunstan, who is a Senior Adjunct 

Fellow at Tech Freedom and the founder of Mobius Legal Group. 

Mr. Dunstan has spent more than 33 years counseling private businesses in all aspects of doing business in outer space and has assisted Federal and state governments with space law issues. 

Our second witness is Ms. Laura Montgomery, who is the proprietor of Ground Based Space Matters law offices and publishes 

groundbasedspacematters.com. Ms. Montgomery works on issues of 

regulatory space law with an emphasis on commercial space transportation, human space flight, and the Outer Space Treaty. Ms. 

Montgomery has spent over two decades with the Federal Aviation 

Administration’s Office of the Chief Counsel, where she represented the FAA at the United Nations Legal Subcommittee of the 

Committee on Peaceful Uses of Outer Space. 

Our third witness is Mr. Matthew Schaefer, who is the Veronica 

A. Haggart and Charles R. Work Professor of International Trade 

Law and Co-Director of the Space, Cyber, and Telecommunications 

Law Program at the University of Nebraska College of Law. Mr. 

Schaefer has taught international law, international business, and 

foreign relations-related courses since 1995 and has directed the 

Space and Cyber Law Program since its creation in 2006. Mr. 

Schaefer is also Co-Chair of the American Branch of the International Law Association’s Space Law Committee, and I would like 

to note that Mr. Schaefer previously served as the Director in the 

International Economic Affairs Office of the National Security 

Council at the White House in 1999. 

14 

Before we hear testimony from the witnesses, I want to welcome 

and recognize the Ranking Member of the Full Committee, Senator 

Nelson, who has a long and enduring issue on the topic of space. 

STATEMENT OF HON. BILL NELSON, 

U.S. SENATOR FROM FLORIDA 

Senator NELSON. Well, I am very, very pleased that we have 

made the progress that we’ve made. The commercial space sector 

has been truly outstanding in the accomplishments, and that’s exactly what was intended as we started some 7 years ago this dual 

track, where we had a commercial space program that was going 

on with regard to astronauts; a commercial space program going to 

and from the International Space Station; and, simultaneously, we 

have the NASA program to go out and explore the cosmos. 

And, of course, people don’t realize it, but it’s right here. Within 

the next year and a half, both commercial rockets with crew will 

launch, as will the largest rocket ever, the SLS, with its spacecraft, 

Orion, on top. So, indeed, Mr. Chairman, what’s going to happen 

is the American people are going to really get engaged again. 

I want to add a word of caution, however, because the budget 

that was just submitted by the President just today—it would cut 

a half a billion dollars from NASA. There are some positive elements, like full funding for the commercial crew, and some not-sopositive elements, such as the cuts to Earth science, to education, 

and to exploration. But the spending plan simply does not go far 

enough for NASA or for various space centers, including our space 

center, the Kennedy Center in Florida. 

As we have all said in the past, we’re going to work together on 

both sides of the aisle, and NASA is not partisan. NASA is nonpartisan. We’re going to work together to make sure the agency 

gets what it needs so that we can keep building this momentum. 

And, Mr. Chairman, we’re going to Mars. 

Senator CRUZ. Amen and Hallelujah. 

With that, Mr. Dunstan, you may start us off. 

STATEMENT OF JAMES E. DUNSTAN, FOUNDER, 

MOBIUS LEGAL GROUP, PLLC 

Mr. DUNSTAN. Chairman Cruz, Ranking Members Markey and 

Nelson, and members of the Subcommittee, thank you for the opportunity to testify here today. I am truly an orphan of Apollo. As 

children, my generation watched the Apollo astronauts walk on the 

Moon. We were promised that if we studied hard and ate our vegetables, we too could go into space. Unfortunately, that didn’t happen. 

I was in law school when the space shuttle started to fly. Again, 

we were promised flights every 2 weeks and that we’d be able to 

fly experiments for as little as $10,000. None of that happened, either. At its peak, the shuttle flew only nine times in 1985, and any 

hope of conducting affordable commercial activities aboard the 

shuttle died with the Challenger. 

But space commerce has taken off anyway on private vehicles. 

The industry now nears $350 billion annually in revenue, mostly 

in commercial satellite services, and we’re seeing the dawn of a 

radical new generation of launch vehicles, with fly back first boostVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00018 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\29998.TXT JACKIE
15 

ers, and fly back second stages just over the horizon. Launch costs 

may fall by an order of magnitude. 

Startups have raised real financing to do everything from onorbit servicing to asteroid mining. For these companies, once esoteric provisions of the Outer Space Treaty could create real business risks. It’s time for Congress finally to address the relationship 

between government and private sector under Article VI of the 

Outer Space Treaty, something I assumed we would have tackled 

imminently when I graduated from law school almost 35 years ago. 

Article VI makes each country responsible and liable for the activities of its citizens and companies in space. The Treaty also 

leaves up to each country to decide how to authorize and supervise 

private activities. In other words, Article VI is not self-executing in 

governing private citizens. Just consider the Supreme Court case in 

Medellin v. Texas, which Chairman Cruz argued as the Solicitor 

General for Texas. Quoting Federalist Number 33, the court said 

that whether a Treaty is self-executing means, ‘‘comparing laws 

that individuals are bound to observe as the supreme law of the 

land versus a mere Treaty dependent on the good faith of the parties.’’ Article VI falls into this latter category. Thus, even failing to 

adopt any regulation at all would not violate the Outer Space Treaty, because there is the backstop of the national liability for private 

citizen activities. 

Federal law already authorizes Americans to operate in outer 

space. Americans have inalienable rights to life, liberty, and the 

pursuit of happiness, as the Declaration of Independence puts it. 

The Tenth Amendment made this principle binding constitutional 

law—the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the 

States respectively, or to the people. In short, absent a constitutionally consistent law prohibiting innovative space activities, 

Americans are already authorized to pursue those activities. In 

other words, that which is not forbidden is permitted. 

We do have laws and regulations, plenty of them, that govern the 

activities of private citizens in space. Space entrepreneurs need 

permission from multiple government agencies. This includes the 

FAA AST for launch, FCC, NOAA, NASA, and the DoD. Entities 

conducting launches have to answer to both state and local authorities, everything from assessing environmental impact of launches 

to obtaining permits to transport their vehicles across state and 

county lines. 

The problem isn’t a regulatory vacuum, but a patchwork of cumbersome, burdensome, and sometimes inconsistent regulations. 

Congress should clean up this mess at the same time that it addresses how to govern innovative space uses not clearly governed 

by existing rules. 

Precisely because the United States Constitution promises me 

that I can go to outer space, and precisely because Article VI is not 

self-executing, Congress is in a unique position internationally to 

show the world that we recognize our liability under Article VI and 

our obligation to ensure that our private citizens abide by the selfexecuting provisions of the OST, no nuclear weapons in space, no 

military bases on the Moon or celestial bodies, and no appropriation of a celestial body. 

16 

The United States can thus lead internationally by adopting a 

sensible and non-burdensome regulatory regime to ensure treaty 

compliance. This would put the rest of the world on notice that 

countries that would offer flags of convenience for outer space activities cannot dodge their liability obligations. This would also promote the goal of Article I, the peaceful exploration and use of outer 

space, while protecting U.S. assets, both public and private, from 

irresponsible foreign companies. 

There is also nothing to be gained right now from reopening the 

current Treaty regime. Once the United States demonstrates a 

light-touch regime consistent with treaty requirements can work, 

then reopening the treaties might make sense. But doing so now 

would allow countries that aren’t friendly to the United States or 

American capitalism to layer on costly regulatory burdens that the 

United States would have to reject as we rejected similar provisions of the Moon Treaty. 

My written testimony, co-authored by Berin Szo ́ka, President of 

TechFreedom, explores in greater depth the United States’ responsibilities under Article VI. 

Thank you again for the opportunity to testify, and I look forward to answering your questions. 

[The prepared statement of Mr. Dunstan follows:] 

PREPARED STATEMENT OF JAMES E. DUNSTAN & BERIN SZOKA

Congress took the first (and long-overdue) step toward recognizing the rights of 

private citizens to explore and use the resources of outer space in the Commercial 

Space Launch Competitiveness Act of 2015 (CSLCA). The next challenge is for Congress to address the so-called ‘‘regulatory gap’’ for innovative space activities beyond 

today’s established satellite and launch industries—such as asteroid and lunar mining, on-orbit repair and construction, and private space habitats. This implicates Article VI of the Outer Space Treaty (‘‘OST’’), which requires that nations ‘‘authorize’’ 

and ‘‘continually supervise’’ the activities of their citizens in outer space to ensure 

compliance with overall treaty obligations. This does not mean, however, that the 

United States must either (a) re-open the Treaty for negotiation or (b) pass legislation to regulate private activities in space. This is because: 

• The ‘‘authorization’’ and ‘‘supervision’’ components of Article VI are subsidiary 

to the overall structure of Article VI, which places both the responsibility and 

liability for treaty violations and damages for space activities on the Nation 

itself. A failure to either authorize or continually supervise the activities of private nationals merely increases the risk that a country might be liable for damages; 

• Article VI is not ‘‘self-executing,’’ meaning that the authorization and supervision language is not the ‘‘law of the land’’ in the United States, absent domestic legislation implementing Article VI. The case of Medellin v. Texas makes a 

clear distinction between treaty provisions that, by their language and nature, 

become the ‘‘law of the land’’ in the U.S., and those treaty provisions that require domestic implementation to have the force of law; 

• The Tenth Amendment (echoing the Declaration of Independence) provide the 

required ‘‘authorization’’ component of Article VI for Americans; 

• Congress has the discretion, as a matter of both international and American 

constitutional law, to decide how to implement its Article VI responsibility to 

provide ‘‘ongoing supervision’’ for private American actors in space; 

• There are plenty of supervisory regulations in place already, many of which are 

overlapping, cumbersome, and inconsistent; 

• The best way to protect American interests is for Congress to enact a regulatory 

framework that takes the lightest touch possible in order to satisfy our Treaty 

obligations while also protecting both public and private American assets—by 

setting precedent for other nations to follow in adopting their own domestic legVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\29998.TXT JACKIE
17 

1The OSTP report is available at: https://obamawhitehouse.archives.gov/sites/default/files/ 

microsites/ostp/csla_report_-4-16_final.pdf (last checked, May 18, 2017). 

islation that will ensure that foreign private companies also act responsibly in 

space; and 

• Reopening the international space law treaty regime would, at least prior to the 

U.S. establishing its own domestic regulatory regime (and perhaps also demonstrating that such a regime can work), no doubt look much like the burdensome provisions of the Moon Treaty, which the U.S. has previously rejected. 

Congress must also streamline and harmonize the patchwork regulatory regime 

put into place in the 1980s and 1990s on the assumption that there would be only 

a dozen or so commercial flights a year that would carry no more than 20 payloads 

to space. 

Congress’ next steps after adoption of the CSLCA will chart the course for space 

development for the next century. We call the attention of the Committee to nine 

themes: 

1. The So-called ‘‘Regulatory Gap’’ and Article VI of the OST 

This hearing is focused on the impact of the Outer Space Treaty on private activities in space. In Section 108 of the CSLCA, Congress directed the White House to 

identify any regulatory gaps and suggest ways of closing those gaps to ensure compliance with U.S. obligations under the OST. The White House responded in April, 

2016, with its analysis that correctly noted that currently no Federal agency regulates such ‘‘innovative space activities’’ such as asteroid mining and commercial 

lunar landings.1 The White House suggested a ‘‘Mission Authorization’’ approach, 

with the FAA/AST taking the lead role in an inter-agency review of applications for 

missions that don’t squarely fall into the regulatory jurisdiction of any current agency (FAA/AST for launches, FCC for frequency, NOAA for remote sensing, NASA for 

NASA-backed payloads and DoD for DoD payloads). 

The White House report notes, correctly, that some planned missions involve activity that is not currently regulated and then concludes, incorrectly, that the U.S. 

is not meeting its obligations under Article VI. But Article VI does not, in and of 

itself, require any specific form of authorization and supervision—or that, in the absence of such, non-governmental activities are prohibited. Consider Article VI in its 

entirety: 

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. 

Thus, Article VI places the responsibility and liability for breach of the clear prohibitions contained in the OST on the launching state. These prohibitive provisions 

are: 

1. No placing of nuclear weapons or weapons of mass destruction in outer space 

(Article IV); 

2. No establishing military bases on the Moon or other celestial bodies (Article 

IV); 

3. Space and celestial bodies are not subject to claims of appropriation by means 

of use or occupation (Article II); 

4. Avoiding harmful contamination (Article IX); and 

5. Avoiding harmful interference (Article IX). 

There is a strong argument that the last two prohibitions are not self-executing 

(see discussion below), but for the sake of this argument, we assume that they are. 

18 

2. Article VI Allows Congress to Choose How to Authorize and Supervise 

the Activities of American Companies 

While Article VI requires each nation to ‘‘authorize’’ and ‘‘continually supervise’’ 

the activities of its citizens, the extent of such oversight only extends to compliance 

with the self-executing Treaty provisions (i.e., that its citizens don’t place a WMD 

in space, make a real property claim on a Celestial Body, or attempt to construct 

a military base). Article VI says that countries must assure that ‘‘activities are carried out in conformity with the provisions set forth in the present Treaty.’’ 

How a country chooses to assure that its citizens do not violate these provisions 

is completely up to that country. Since Articles VI and VII (making countries liable 

for damages that are caused by their own activities or those of their nationals) place 

liability for any activities of citizens clearly upon the launching state, the amount 

of supervision a country wishes to place is, in terms of treaty interpretation, completely up to the country, depending upon the risk the country wishes to assume. 

Countries fearing that the activities of their citizens could result in international 

liability may choose to heavily ‘‘supervise’’ (through highly proscriptive ex ante regulation) the space activities of their citizens—up to, and including, prohibiting private 

space activities entirely. But countries that conclude that the benefits of innovative 

space activities outweigh the liability risks may consider a lighter ‘‘regulatory 

touch,’’ all the way to becoming a ‘‘flag of convenience’’ with no supervision whatsoever. A lack of supervision is not, in and of itself, a violation of international law; 

it merely raises the chances that a non-governmental activity might run afoul of the 

OST prohibitions and that the country responsible be held liable for consequential 

damages because that country’s citizens seek to engage in a behavior that is a per 

se violation of the OST, or creates a probability that those activities will interfere 

with the activities of another space activity resulting in harm (e.g., orbital collision 

or frequency interference). Congress now has the opportunity to decide where on 

that continuum of regulation it wishes to place the United States. 

3. Article VI is Not Self-Executing 

In legal terms, this means that Article VI is not self-executing: it requires domestic legislation in order to be enforceable in U.S. courts. Medellin v. Texas¸ 552 

U.S. 491 (2008). The distinction between a treaty provision that represents an international commitment versus a treaty provision that sets forth specific international 

law that becomes the ‘‘law of the land’’ is a cornerstone of U.S. constitutional law 

and was discussed in the Federalist Papers, No. 33, ‘‘comparing laws that individuals are ‘bound to observe’ as ‘the supreme law of the land’ with ‘a mere treaty, dependent on the good faith of the parties.’ ’’ Medellin, 552 U.S. at 499. While there 

are clear prohibitions contained in the Outer Space Treaty which are self-executing, 

the remaining provisions of the OST are aspirational and advisory, leaving the specific implementation of those concepts up to individual nations. Like the legal issue 

(consular notification rights of criminal defendants) in the convention at issue in 

Medellin (the Vienna Convention on Consular Relations), the Article VI falls into 

this latter category of non-self-executing provisions of the OST. 

4. The United States has already Authorized Innovative Space Activities 

The White House Section 108 Report also ignores the fact that in the United 

States, innovative outer space activities are already authorized. That authorization 

predates the space era by nearly 200 years. As Americans, we declared in 1776 that 

‘‘[w]e hold these truths to be self-evident, that all men are created equal, that they 

are endowed by their Creator with certain unalienable Rights, that among these are 

Life, Liberty and the pursuit of Happiness.’’ The Tenth Amendment to the U.S. Constitution carries through this concept when it states that ‘‘[t]he powers not delegated 

to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.’’ In short, absent a constitutionally consistent law prohibiting ‘‘innovative space activities,’’ Americans are authorized to pursue those activities. In other words, that which is not forbidden is 

permitted. 

5. Adopting a Complete Laissez-Faire ‘‘Flag of Convenience’’ Regime Would 

Clearly Not Be in the Interests of the United States 

As noted above, because Articles VI and VII of the OST ultimately place liability 

on the launching state, how the U.S. chooses to ‘‘continually supervise’’ the activities 

of its citizens in space is a matter of risk assessment. Nonetheless, strong policy reasons (besides the potential liability of the U.S. Government, and therefore, the U.S. 

taxpayer) exist as to why the United States should not abdicate all regulatory authority over the activities of its citizens in space. On two of the Treaty’s five principal requirements—the three bright-line rules—the foreign policy interests of the 

19 

2 30 U.S.C. § 1428. 

United States should be rather obvious: We absolutely do not want China or Russia 

or any other power (1) placing nuclear weapons or weapons of mass destruction in 

outer space (Article IV), (2) establishing military bases on the Moon or other celestial bodies (Article IV), or (3) placing an object on a strategic place and then claiming an absolute, permanent property right on that place (rather than a non-interference zone around ongoing activity). We cannot insist through diplomatic consultation that China or Russia screen their companies’ (including state-controlled enterprises) planned missions to ensure compliance with these prohibitions without having a clear mechanism for doing the same ourselves. 

Nor can we, without our own system of appropriation ‘‘supervision,’’ protect the 

rights of American public and private actors under the other two principal requirements of Article VI: 

1. Avoiding harmful contamination (Article IX); and 

2. Avoiding harmful interference (Article IX). 

It is not difficult to see how American companies and government actors (both 

NASA and military/intelligence) could suffer at the hands of foreign companies that 

push the envelope on these two principles to elevate them into a quasi-claim of appropriation—nor why American companies and government actors would benefit 

from establishing both more specific standards and dispute resolution mechanisms 

on all three counts. While relying on international treaty making to tackle these 

highly fact and science-specific problems, the U.S. can continue to lead the way. The 

U.S. has done so on technical committees such as the Inter-Agency Space Debris Coordination Committee (IADC), which helped develop the orbital debris mitigation 

standards that were first adopted by the United States, and are now quickly becoming customary international law. Congress should task NASA and other expert 

agencies to develop technical standards on use, collocation of multiple bases or other 

uses (e.g., robotic mining or telescopes) on a celestial body, and ways to mitigate interference among multiple users, such as between two groups extracting minerals 

in adjacent areas or between a mining operation (which produces dust) and a telescope (which might be subject to interference from dust). Such standards could help 

to avoid disputes in the first place, just as coordination minimizes disputes among 

spectrum users, while also providing standards for resolving disputes when they do 

happen. 

Ultimately, such standards—and the adjudicatory mechanisms through which 

technical standards evolve into legal standards, and change over time—will be of 

greatest benefit to American companies (and government actors) when they address 

not only disputes with other American entities, but also with foreign entities. While 

it is theoretically possible to have two systems operating side by side—one for interactions among U.S. parties and one for interactions among U.S. and foreign parties—the difficulty inherent in such separate systems, and the advantages of having, 

to the greatest extent possible, a harmonized system for both, would be considerable. 

One thing is certain: whatever the United States does will set precedent for the 

rest of the world, as we did with the issue of orbital debris mitigation. For these 

reasons, the U.S. should continue to lead the international community in exploring 

and adopting standards for non-interference as well as the other prohibitions contained in the OST—if for no other reason than to set the precedent in the international community that the clear prohibitions contained in the OST must be enforced by all nations on all citizens of the world. In other words, ensuring some effective scrutiny over U.S. companies’ activities will, to the extent that other nations 

follow suit, protect U.S. actors, both public and private alike, from irresponsible foreign actors. 

Rather than merely hoping that other countries will follow our lead, the United 

States should give other countries an incentive to enact domestic legislation that offers equivalent protections to that of the U.S.—especially in the standards and 

mechanisms for resolving interference disputes between U.S. parties and parties of 

that country. There is already a directly applicable model for this in the U.S. Code. 

The Deep Seabed Mineral Resources Act of 1979 was passed as an alternative to 

the socialist and impractical resource appropriation provisions of the Law of the Sea 

Treaty, as it was then drafted (and under discussion). Rather than negotiate a new 

treaty, the U.S. law simply and elegantly allows the recognition of exclusive mining 

claims issued by other countries that will also recognize U.S. claims through ‘‘compatible’’ legislation.2 This model could easily be incorporated into U.S. law, avoiding 

20 

3 ‘‘Regulating Space: Innovation, Liberty, and International Obligations,’’ March 8, 2017. 

4 Examples abound of how the current space regulations are rooted in the 1980s. The FCC 

assumes that all satellite are multi-million dollar payloads that take many years to build and 

launch. See Comprehensive Review of Licensing and Operating Rules for Satellite Services, FCC 

15–167, 30 FCC Rcd 14713, 14736 (December 17, 2015) (‘‘Satellite Services Rules Update 

Order’’). The FCC rules further require the procurement of multi-million dollar bonds (to minimize the warehousing of orbital slots), 47 C.F.R. § 25.165. The application fees for satellites are 

extremely high (See Amendment of the Schedule of Application Fees Set Forth in Sections 1.1102 

through 1.1109 of the Commission’s Rules, Order, GEN Docket No. 86–285, 29 FCC Rcd 3276, 

3276, ¶ 2 (2014) ($129,645.00 application fee per GEO satellite, $446,500.00 application fee per 

non-GEO (‘‘NGSO’’) satellite or constellation). Each year satellite operators also have to pay a 

regulatory fee to the FCC of $138,475.00 for GEO satellites, and $141,950.00 for NGSO satellite 

or constellations. Current processing times for remote sensing licenses from NOAA are more 

than a year. Further, the regulations adopted even as late as 2006 anticipated the placement 

of a few very large satellites (e.g., LandSat and its progeny), and require NOAA to physically 

the need for negotiating revisions to the Outer Space Treaty or even a new multilateral framework such as a convention. 

6. Amending the OST or Entering New Treaty Negotiations at this Time is 

Not in the Interest of the United States 

Precisely because the ‘‘authorization’’ and ‘‘supervision’’ provisions of Article VI 

are aspirational and not self-executing, and because the U.S. Constitution gives 

Congress the ability to craft domestic legislation that implements Article VI in a 

way that is both consistent with the core provisions of the OST and Congress’ desire 

to promote rather than stifle free enterprise in space, Congress should not suggest 

to the Administration or the State Department that the U.S. should begin discussions in the international community about amending the OST or augmenting Article VI with a new treaty (such as was done to flesh out the liability provisions of 

OST Article VII into the 1972 Liability Convention). The result of such efforts would 

inevitably be a treaty that the United States would not be able to ratify, because 

it would either (a) contain specific regulatory provisions akin to those adopted in 

the Moon Treaty that would be antithetical to U.S. economic interests, or (b) provide 

international lawyers a way to close the ‘‘Medellin loophole’’ by specifically stating 

that the requirement that countries supervise and authorize the activities of their 

citizens is self-executing—by adopting language specifying what that regulatory regime must look like. 

Either way, the United States would lose the flexibility it now enjoys, which provides it with a unique opportunity to establish domestic law in the United States 

that is both consistent with Article VI, yet still provides U.S. citizens with a light 

regulatory approach that encourages innovation and investment in new outer space 

activities. Most of all, that flexibility means that U.S. policymakers can design a regime that will heavily influence what other countries do, and the concomitant evolution of international law through new conventions (such as those on registration, 

liability, rescue and return) or through customary international law. 

In short, nothing good can come from diving down the ‘‘rabbit hole’’ of treaty 

(re)making at this stage. In the future, after the U.S. has shown its world leadership by establishing a domestic regulatory approach that encourages private sector 

advancement into space while protecting the core values of the OST, then the U.S. 

will be able to negotiate a future treaty from a position of strength, as by that time 

U.S. entrepreneurs will already have established themselves as the ‘‘first movers’’ 

in a huge new economic arena and U.S. domestic law will have shown itself to work, 

not just for American companies, but also for foreign companies that interact with 

American companies in space, or that choose to launch out of the U.S. to take advantage of American domestic space law. 

7. Understanding the Depth and Breadth of Current Space Regulation 

At a recent House hearing,3 most of the questions asked of the panelists involved 

issues of space traffic management and orbital debris. It was frustrating that the 

expert panel did not forcefully respond that every scenario raised in questions is already covered by multiple agencies and multiple sets of regulations. 

1. If one launches a payload into LEO, FAA/AST regulations require full information about orbital parameters, and the launching party must demonstrate that 

its orbital choice will not conflict with other users (14 C.F.R. § 415.35), as well 

as demonstrate that it has complied with orbital debris mitigation standards 

for ‘‘safeing’’ upper stages and disposal at payload end of life (14 C.F.R. 

§ 417.129). 

2. The FCC has similar, yet separately enforced, regulations for anyone seeking 

a license to communicate with a vehicle or payload (47 C.F.R. § 25.114(d)(14)).4

21 

visit the downlink sites on an annual basis to ensure that they are operated properly. See 

http://www.nesdis.noaa.gov/CRSRA/files/ 

noaa_commercial_remote_sensing_regulatory_affairs_06302015.pdf. This NOAA presentation 

noted that between 1996 and 2010, a total of 26 licenses were issued (less than two per year). 

As of October 1, 2010, there were a total of six (6) remote sensing satellites in orbit. Between 

2010 and 2015, 46 licenses were issued (8 per year). As of June, 2015, 11 applications were in 

process and 22 other entities informed that they were required to apply for licenses. There are 

now over 100 remote sensing satellites on orbit. 5The DOD has its own set of regulations for military launches. 

3. NOAA, likewise, has rules for those seeking a license for remote sensing of the 

Earth (15 C.F.R. Part 960, Appendix 1: C). 

4. NASA also has orbital debris and other orbital restrictions (vis-a`-vis the ISS) 

that must be satisfied for any NASA-sponsored mission (NASA–STD–8719.14A 

(74 pages), which puts into effect NASA Procedural Requirement 8715.6, and 

includes reference to NASA-Handbook (NASA–HDBK) 8719.14). 

So if a company is using a U.S. commercial vehicle to launch a remote sensing 

satellite that will download data to Earth and is somehow supported by a NASA 

contract, it must demonstrate compliance with the orbital interference and debris 

rules of four separate Federal agencies.5 Worse yet, if any of those agencies determines that the debris mitigation statement is insufficient, the company would have 

to amend its statement to all four agencies, triggering another round of bureaucratic 

review and (potentially), a near-endless series of reviews and revisions to each of 

its requests for authorization. This back-and-forth will become significantly more 

problematic with higher launch volumes. 

The problem, then, is not a ‘‘regulatory gap’’ for current space activities, but rather a patchwork regulatory system that is complex, non-transparent, and extremely 

expensive to navigate. Before we start overlaying a whole new ‘‘Mission Authorization’’ regulatory regime on innovative space activities, we must first streamline the 

existing regime to reduce cost, redundancy, and most of all, opaqueness, where bureaucrats can still pick winners and losers with impunity. Cleaning up a bloated 

regulatory regime will provide far more clarity to the space industry than the establishment of an entirely new ‘‘black box’’ into which one drops applications, and 

crosses fingers that it won’t be vetoed, without explanation, by one of several unaccountable agencies. Ideally, Congress should clean up the mess of current Federal 

licensing at the same time that it implements any new regime to address its Article 

VI responsibilities. 

8. The ‘‘Mission Authorization’’ Approach Proposed by the Obama 

Administration is a Continuation of a ‘‘Black Box’’ Policy of the Federal 

Government Picking Winners and Losers 

Is there an optimal domestic regulatory regime for regulating ‘‘innovative space 

activities?’’ If there is, it certainly is not the ‘‘Mission Authorization’’ regime set 

forth in the White House Report under Section 108. Under OSTP’s ‘‘Mission Authorization’’ approach, an inter-agency review process would be established for initial 

authorization. As proposed, the process lacks any transparency. There is no requirement governing application processing times, no standards against which approval 

or disapproval are measured, no requirement for a full (or written) explanation of 

reasons for denial, and no appeals process. In short, the proposed review process 

looks uncannily like the State Department’s International Traffic in Arms Regulations (ITAR) regime. That process has been abused by different governmental agencies countless times since it was imposed, resulting in the near death of the United 

States satellite building industry. It appears that, under the Administration’s Mission Authorization proposal, as in the ITAR, powerful governmental players on the 

inter-agency review team would each have an independent veto on an authorization 

request. Most likely, the applicant would never find out who ‘‘blackballed’’ the mission, or why. 

If a regulatory regime is adopted for mission authorizations that mirrors, or even 

remotely resembles, the ITAR regime, Congress will have failed to execute our Treaty obligations in a way that promotes the ‘‘exploration and use’’ of space—the overarching goal of the Treaty (Article II)—and commercial entities will flee the United 

States to jurisdictions that treat their citizens in a fairer manner, just as satellite 

manufacturers fled the U.S. To avoid repeating the mistakes of the ITAR regime, 

Congress must ensure that: 

1) The lead agency in the inter-agency process must have the clout to push back 

against other agencies seeking to thwart private enterprise for their own reasons, which may have little to do with U.S. national interests—and, indeed, 

22 

6We believe that any revocation would need to be done at the court level to assure an independent review of the revocation process. Allowing an agency to revoke the authorization subject 

to court appeal by the applicant would unfairly place the burden of proceeding and burden of 

proof with the private entity, and not on the government agency, where it belongs. 

may actively frustrate them (such as by strangling American industry). FAA/ 

AST, as currently constituted, clearly lacks such clout. 

2) Clear processing guidelines must keep agencies from blackballing projects on 

a whim. This will take a significant amount of expertise that is lacking even 

within FAA/AST. While that office has engineers capable of analyzing launch 

and reentry risks, it is ill-equipped to analyze, for example, whether Company 

B can mine an asteroid after Company A has already received authorization 

for such activities, or to determine how close Company B can land to Company 

A’s lander on the Moon. In short, ‘‘non-interference’’ analyses will need to be 

conducted, which FAA/ATS does not have the expertise to do. Agencies that do 

have that expertise might have also an interest in conducting similar missions, 

giving them perverse incentives that could call into question the integrity of 

their analyses. 

3) The process must be transparent. Applicants must be able to find out where 

in the process they are, what agencies might have questions about the mission, 

and when a decision will be rendered. 

4) Any denial must come with a fully reasoned decision, so that rejected registrants know what they must do to amend their registration before resubmitting it. The ability to reject registrations without such explanations will effectively convert a mission registration regime into a mission authorization regime by giving unchecked discretion—veto rights, in fact—to, potentially, each 

of the reviewing agencies. 

5) There must be an appeal process, whereby an applicant can challenge that decision in court. In short, the Administrative Procedures Act must apply to this 

process, rather than the ‘‘black box’’ that characterizes the ITAR process. 

While it is theoretically possible to write legislation that would cover all of these 

‘‘sins,’’ we have no doubt but that bureaucrats, attempting to protect their own 

‘‘turf,’’ could find other ways of denying or slowing down a private sector company’s 

attempt to conduct innovative space activities that might compete with a government program that is seeking billions of dollars of the Federal budget. The statement at the Hearing that ‘‘national security interests will always trump commercial 

interests’’ gives us pause as to whether any regime with a ‘‘veto power’’ will actually 

promote commercial innovative uses of space. 

9. A ‘‘Mission Registration’’ Approach Will Spur Investment in the Space 

Economy While Still Allowing the U.S. to Prohibit Activities That 

Violate the OST or Articulated U.S. National Security Interests 

Instead of ‘‘Mission Authorization,’’ we propose a minimal ‘‘Mission Registration’’ 

approach. The essential difference is where the presumption lies. 

We suggest allowing any U.S. entity planning to conduct a mission to register 

with a government entity, and provide full disclosure of the mission scenario. They 

would also have to demonstrate that the mission would not violate any of the OST 

prohibitions outlined above and defined more specifically in the enabling legislation. 

They would also demonstrate that the mission complies with orbital debris and 

space traffic management requirements through either reference to an FAA/AST, 

FCC, NOAA, or NASA authorization/approval, or through a separate demonstration 

if none of those regime apply (which is highly unlikely). 

An interagency review would be conducted under a strict shot-clock of 120 days; 

after that time, the mission would be deemed authorized, unless the lead agency 

issued an appealable order, consistent with the Administrative Procedure Act’s ‘‘arbitrary and capricious’’ standard, clearly identifying the grounds on which the registration was denied. In other words, self-certification of compliance with the statute 

would provide a presumption of compliance—a kind of safe harbor—but that presumption could, of course, be rebutted by the agency or any private party (domestic 

or, ideally, foreign as well) seeking to oppose the proposed mission as inconsistent 

with the Treaty. 

A registrant would be under an obligation to keep the registering agency upraised 

of any changes to the mission, and the lead agency could in the future, if it later 

deemed that the mission might violate the OST prohibitions or other U.S. policy 

concerns, seek a court injunction to revoke the registration, with the burden of proof 

or revocation resting with the government agency.6

23 

7 A fuller registration of the payload would be made prior to launch consistent with the obligations of the Registration Convention. 8The International Telecommunication Union (ITU) and state regulatory bodies such as the 

FCC have long dealt with attempts to warehouse valuable orbital locations (especially within 

the geostationary orbit), through the filing of ‘‘paper satellite’’ applications—applications to provide service by entities clearly technically or financially unable to launch a satellite within the 

timeframes specified in those applications. This has led, on the U.S. side, to the implementation 

of very strict construction and launch milestones. 9 Jim Dunstan is a Senior Adjunct Fellow of TechFreedom and the founder of Mobius Legal 

Group, PLLC where he has spent more than 33 years representing companies in the outer 

space, telecommunications, and high technology sector. He can be reached at jdunstan 

@mobiuslegal.com. 

In order to meet U.S. obligations under OST Article IX not to authorize missions 

that might cause harmful interference to the activities of other ‘‘State Parties’’ or 

that might cause harmful contamination of space or celestial bodies (which, again, 

could be involve harm to future users, who may not yet be present to defend their 

interests in the kind of adversarial process that could work for harmful interference 

claims), we propose that the lead agency issue a Public Notice indicating that the 

application for registration has been filed and general information about mission 

type (e.g., on-orbit satellite servicing, asteroid mining, etc.).7 Another country (but 

not a foreign national) at that point could seek consultation with the United States 

if it believed that a mission might violate Article IX. The statute should be written 

such that other countries could not abuse the consultation process by objecting to 

each registration as a way of either slowing down U.S. interests, or gaining valuable 

proprietary information concerning the nature of the mission, or the technology involved. 

The practical problem with the U.S. taking the ‘‘high road’’ of notifying the world 

community in advance of planned missions, however, is that it might prompt other 

nations to create ‘‘paper missions’’ 8 to stake out coveted locations in the solar system. A country, for example, could authorize a mission to land near Shackleton crater on the Moon and then claim a large non-interference zone around the landing 

site that would effectively preclude other operations nearby. Such a claim would 

likely violate Article II’s prohibition on territorial appropriation, both because it is 

not based on actual, ongoing use, but future, hypothetical use. Nonetheless, to avoid 

tying up American companies in dilatory international consultations under Article 

VI, any ‘‘prior notice’’ regime should come with strict milestones to demonstrate to 

the international community that such authorizations are legitimate. In that way, 

the United States can demand similar regimes from foreign governments in order 

to acknowledge any Article IX non-interference rights of their citizens. Again, this 

kind of coordination should be central to the concept of reciprocal, interlocking legislation proposed above in the model of the Deep Seabed Hard Mineral Resources Act. 

A private party would be left with the ability to seek an injunction against another party it believed might cause harmful interference to its activities using traditional common law tort theories. As much as any particular private U.S. company 

might like to have the weight of the U.S. Government behind it to enforce its rights 

to a particular mission, such a heavy-handed approach (empowering the government 

to pick winners and losers) would be costly for the government to engage in, and 

simply not necessary given the well-established field of tort law. At most, Congress 

could consider requiring arbitration or other alternative dispute resolution platform 

in the statute for all cases arising under a Mission Registration regime. Ideally, the 

same common law developed between U.S. parties should be applicable in disputes 

between U.S. and foreign parties. For the concept of interlocking, reciprocal domestic legislation to work, the U.S. common law must be firmly grounded in Article IX’s 

prohibition against harmful interference, while also taking care not to violate Article 

II’s prohibition on territorial appropriation. 

This is, of course, only the beginning of the issues that will ultimately need to 

addressed to ensure that American law provides a sound foundation for American 

activities in space of all kind: governmental, business and scientific/not-for-profit. 

Congress will also have to address difficult questions, especially around harmful 

contamination and spectrum usage. But not all these issues need to be addressed 

now, at this hearing, or in legislation that Congress might pass this year. 

We look forward to assisting explore these additional questions in the future, and 

look forward to being of assistance to your committee in any way we can. 

Respectfully, 

James E. Dunstan, Senior Adjunct Fellow, TechFreedom 9

24 

10 Berin Szo ́ka is President of TechFreedom, a nonprofit, nonpartisan technology policy think 

tank. He can be reached at bszoka@techfreedom.org. 

Berin Szo ́ka, President, TechFreedom 10

Senator CRUZ. Thank you, Mr. Dunstan. 

Ms. Montgomery. 

STATEMENT OF LAURA MONTGOMERY, ATTORNEY AND 

PROPRIETOR, GROUND BASED SPACE MATTERS, LLC 

Ms. MONTGOMERY. Thank you. Chairman Cruz, Ranking Member 

Markey, and members of the Subcommittee, thank you for inviting 

me to address the role the Outer Space Treaty may play in the regulatory responsibilities of the United States. 

This country has the opportunity to interpret the Treaty in two 

ways: as conducive to private activity, or so that it creates barriers. 

A close reading of the text shows that the Treaty actually allows 

a lighter regulatory hand than many claim, both in terms of the 

authorization and supervision provisions of Article VI and the 

harmful contamination provisions of Article IX. If the United 

States pursues an interpretation that closely aligns with the text, 

there may be no need to seek changes. 

I respectfully recommend that the United States understand that 

it need not regulate new commercial space activities, such as lunar 

habitats, mining, or lunar beer brewing, 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. A misunderstanding of the treaty looms as possible regulatory drag, because many, including agencies in the Executive Branch, claim Article VI prohibits operations in outer space 

unless the government authorizes and supervises those activities. 

The U.S. Government should not interpret this as forbidding unauthorized private space activity for three reasons. First, the Treaty does not forbid private operators from operating in outer space. 

Second, it does not say that either all or any particular activity 

must be authorized, leaving decisions regarding what activities require regulation to the member states. If Article VI truly meant 

that all activities had to be overseen, where would oversight stop? 

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 should 

suddenly require oversight. 

And, finally, Article VI is not, under U.S. law, self-executing, 

which means that it does not create an obligation or a prohibition 

on the private sector unless and until Congress says it does. So 

concerns over regulatory risks are artificial and may be set aside. 

Because Article VI is not self-executing, it is not enforceable Federal law until Congress acts. 

Just as the Supreme Court said in Medellin v. Texas, when the 

court did not let the President enforce a ruling of the International 

Court of Justice against the states because Congress had yet to act, 

Article VI’s call for oversight requires legislation with all its attendant policy choices. Accordingly, regulatory agencies should not 

attempt to enforce this treaty provision by either denying licenses 

25 

1 Bentley Coffey, Patrick McLaughlin, and Pietro Peretto, ‘‘The Cumulative Cost of Regulations’’ (Mercatus Working Paper, Mercatus Center at George Mason University, Arlington, VA, 

2016). 

or payload authorizations or by attempting to regulate that which 

they have no jurisdiction over. Nor should Congress pass a law so 

broadly worded as to encompass all activities that could take place 

in outer space. The Supreme Court, in criminal and First Amendment cases, says that laws should be drafted so that persons of ordinary intelligence can tell what is forbidden and what is required, 

and that would be a good model to follow here if Congress takes 

that path. 

Article IX of the Treaty offers another source of concern, but it 

doesn’t have to. Article IX provides that states’ parties to the treaty 

shall avoid harmful contamination of outer space and adverse 

changes in the environment of Earth. This provision does not, in 

other words, apply to private actors. The United States is thus not 

legally obligated to impose this requirement on the private sector. 

Even if Congress were to decide that private activity had progressed to the point where harmful contamination had become a 

concern, Congress would have policy decisions to make, including 

whether current government guidelines should stand in the way of 

human settlement in outer space and on the Moon and other planets. Because the harmful contamination provision is neither applicable nor self-executing, regulatory agencies should not attempt to 

enforce it until and unless Congress directs them to do so. 

In order to put to bed the regulatory uncertainty arising out of 

any misunderstandings of the treaty, Congress could take a number of approaches. The most certain and long-lasting, however, and 

the one that would reduce the opportunities for confusion, misunderstanding, and regulatory overreach would be for Congress to 

prohibit any regulatory agency from denying a U.S. entity the ability to operate on the basis of inapplicable or non-self-executing provisions of the Outer Space Treaty, including Articles VI and IX. 

Thank you for the opportunity to testify today. 

[The prepared statement of Ms. Montgomery follows:] 

PREPARED STATEMENT OF LAURA MONTGOMERY, GROUND BASED SPACE MATTERS

Chairman Cruz, Ranking Member Markey, Chairman Thune, Ranking Member 

Nelson, and Members of the Subcommittee, thank you for inviting me to participate 

in this important discussion and to address the role the Outer Space Treaty should 

play in the regulatory responsibilities of the United States. This country has the opportunity to interpret the Outer Space Treaty in two ways: as conducive to private 

activity or so that it creates barriers. A close reading of the text shows that the treaty actually allows a lighter regulatory hand than many claim, both in terms of the 

authorization and supervision requirements of Article VI and in terms of the harmful contamination provisions of Article IX. 

As someone who hopes to see people beyond Low Earth Orbit again in my lifetime, and who hopes to see commercial space operations other than launches, reentries, and communications satellites, I respectfully recommend that the United 

States not regulate new, commercial space activities such as lunar habitats, mining, 

satellite servicing, or lunar beer brewing for the wrong reason: the belief that Article VI makes the United States regulate either any particular activity or all activities of U.S. citizens in outer space. Regulations already cost American industry, the 

economy, and the ultimate consumer upwards of four trillion dollars, according to 

recent research from the Mercatus Center,1 so we should think carefully before creating more drag on the space sector. 

A misunderstanding of the Outer Space Treaty looms as possible regulatory drag 

because many, including agencies in the Executive Branch, claim Article VI of the 

26 

treaty prohibits operations in outer space unless the government authorizes and supervises—which I’ll refer to as ‘‘oversees’’ or ‘‘regulates’’—those activities. Although 

Article VI states that ‘‘[t]he 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,’’ the U.S. Government should not interpret this as forbidding unauthorized, private space activity for 

three reasons. The treaty does not forbid private operators from operating in outer 

space. It does not say that either all or any particular activity must be authorized, 

leaving decisions regarding what activities require regulation to the member states. 

And, finally, Article VI is not, under U.S. law, self-executing, which means that it 

does not create an obligation or a prohibition on the private sector unless Congress 

says it does. 

I will also address Article IX of the Outer Space Treaty and its admonition that 

States Parties to the treaty avoid harmful contamination of outer space and adverse 

changes in the environment of Earth. This provision does not, on its face, apply to 

private actors. It is thus not an obligation on the United States to impose this requirement on the private sector. Even if Congress were to decide that private activity has progressed to the point where contamination has become a concern, Congress would have a number of policy decisions to make, including whether current 

views on harmful contamination, which might keep space a scientific preserve, 

should stand in the way of human activity in outer space. Because the harmful contamination provision is neither applicable nor self-executing, the regulatory agencies 

should not attempt to enforce it until and unless Congress directs them to do so legislatively. 

In order to put to bed the regulatory uncertainty arising out of any misunderstandings, Congress could take a number of different approaches. The most certain 

and long-lasting approach, however, and the one that would reduce the opportunities for confusion, misunderstanding, and regulatory overreach, would be for Congress to prohibit any regulatory agency from denying a U.S. entity the ability to operate in outer space on the basis of inapplicable or non-self-executing provisions of 

the Outer Space Treaty, including Articles VI and IX. 

I. The Treaty Does Not Forbid Private Space Activity, but Leaves it to Each 

Country to Decide What Activities to Regulate and How to Regulate 

Them 

Article VI of the Outer Space Treaty states: 

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. 

The United States itself is in compliance with Article VI because the treaty leaves 

the decisions about how to comply with its rather ambiguous terms to each country. 

By its own terms, Article VI legally does not and cannot prohibit space operations 

by the commercial sector. Instead Article VI leaves it to each country to decide 

which particular activities require regulation, how that regulation will be carried 

out, and with how much supervision. Accordingly, if Congress hasn’t said that a certain activity, such as lunar harp playing, requires authorization and continuing supervision then lunar harp playing does not. 

Article VI contains three relevant ambiguous terms that the drafters have left to 

the different countries to define as they see fit. The terms are ‘‘authorization,’’ ‘‘continuing supervision,’’ and ‘‘activities.’’ 

A. Authorization 

Article VI says that a country must authorize its nationals’ activities. Each country has its own processes and terminology for how it authorizes something. The 

United States alone authorizes regulated activities by certificate, certification, approval, license, registration, waiver, or exemption. In the United States, Congress 

determines the nature of the authorization. 

B. Continuing supervision 

The signatories to the treaty are supposed to require continuing supervision of 

their nationals. ‘‘Continuing supervision’’ is a matter of frequency. Some agencies 

conduct annual inspections. Others oversee regulated activities on a daily basis. 

Some only show up after an accident. The frequency may not be the same, but the 

27 

supervision may still be called continuous. The nature of the supervision may differ 

from country to country but all, regardless of frequency, could comply with Article 

VI’s call for continuing supervision. 

C. Activities 

Finally, and most importantly, the treaty leaves it to each country to decide what 

activities require supervision and authorization. The treaty does not say all activities require oversight. It does not say which particular activity requires oversight. 

Rather, it leaves to each country’s policy makers the decision as to where to draw 

the line. And draw lines they must, so as not to waste resources, unduly burden 

the industry, or cause confusion. For the United States, the entity that makes those 

determinations is the U.S. Congress, and the regulatory agencies should wait for 

Congress to act. 

Article VI is structured so that a country need not expend resources regulating 

frivolous, mundane, or non-hazardous activities. Each country may itself decide 

what activities require authorization and supervision. Thus, if our decision makers 

haven’t decided that a particular activity needs authorization, that activity does not. 

If Article VI truly meant that all activities had to be overseen, where would oversight stop? Life is full of activities, from brushing one’s teeth to playing a musical 

instrument, which take place now without either Federal authorization or continuing Federal supervision. Just because those activities take place in outer space 

does not mean they should suddenly require oversight. 

As a matter of past practice, Congress has always identified what activity it wanted regulated, and it has done so with the proper level of specificity that due process 

considerations of notice and transparency require. Congress required the Federal 

Communications Commission to license satellite transmissions. It required the Department of Transportation (DOT) to license the launch of launch vehicles. Later, 

it required DOT and the Federal Aviation Administration (FAA) to license the reentry of reentry vehicles as well. Congress also mandated that the seemingly benign 

activity of taking pictures of Earth—‘‘remote sensing’’—requires regulation, too. The 

point is, each time Congress determined that something required oversight, whether 

for reasons of safety, national security, or interference, it identified the activity in 

question, and it did so with sufficient clarity that persons of ordinary intelligence 

could tell what was forbidden and what was required. 

As a matter of policy, Congress may determine that there are good reasons to expend government resources and taxpayer dollars on a particular activity. Hypothetically, Congress could say that robotic mining of rocks in space really far away 

does not require regulation because no one lives on that rock, it has no visitors, and 

no one will get hurt by it. Or, it could say that bringing all those platinum group 

minerals back to Earth at once will wreak havoc on the economy and then set up 

an agency to oversee pricing. Even if Congress ignored asteroid mining, it might forbid the reentry of anything large enough to make a crater the size of the Yucatan. 

There are a number of considerations that may lead to legislation and regulatory 

oversight. But they are not in Article VI. 

Just as there are serious activities that someone may say require oversight, there 

are a host of other activities that don’t. One hears no lamentations over the lack 

of authorization of space tourists. Yet space tourists exist now. Lunar habitats and 

space mining do not. 

In short, Article VI leaves at least three decisions to each country that signed the 

Outer Space Treaty: What form should an authorization to take? How frequent must 

the continuing supervision be? And, what activities require any authorization at all? 

If Congress doesn’t think playing the harp in space requires authorization, then it 

doesn’t, the U.S. is still in compliance with Article VI, and the Executive Branch 

should not attempt to stop the ‘‘unauthorized’’ harpist. 

II. Article VI is not Self-Executing 

If a treaty promises, implicitly or explicitly, that the signatories shall enact legislation to implement the treaty, it necessarily requires additional action by another 

branch of the government than the Executive. In the United States, that other 

branch is the U.S. Congress, and Article VI’s call for supervision and authorization 

requires the kind of policy decisions that are made by our Congress. 

As the Supreme Court noted in Medellin v Texas in 2008, ‘‘not all international 

law obligations automatically constitute binding Federal law enforceable in United 

States courts.’’ As far back as the early 19th century, in a case called Neilson v. 

Foster in which the Court considered a treaty with language similar to that used 

in Article VI, the Supreme Court said that Congress had to first enact legislation 

before it could enforce the treaty because the text of the treaty required additional 

legislative action. With its space legislation, Congress has acted consistently with 

28 

the Supreme Court’s holdings. When Congress decides that an activity requires regulation, it will pass a law, and has done so for launch, reentry, remote sensing from 

space, and satellite communications. 

Because Article VI is not self-executing and thus not enforceable Federal law, 

until Congress acts, regulatory agencies should not treat Article VI as a barrier that 

applies to commercial actors or claim that it prohibits all or any particular private 

activity. Indeed, given the close textual analysis that the Supreme Court typically 

applies to treaties, Article VI’s potential obligation on the government does not, even 

on its own terms, constitute a prohibition on the private sector. 

III. Paths Forward 

Purely as a legal matter, Article VI should not create a barrier to private activity. 

However, should there be concerns that this view is not shared by agencies of the 

Executive Branch, Congress has legislative options at its disposal. 

A. Legislation Could Clarify that the Executive Branch May Not Prohibit a U.S. 

National from Conducting an Activity in Space Unless Congress Requires that 

Activity’s Authorization and Continuing Supervision 

Legislation could clarify that regulatory agencies may not prohibit a U.S. national 

from conducting an activity in space unless Congress required Federal oversight. 

This would not be legally necessary, strictly speaking, because this proposal merely 

reflects current law. However, since the issue of what Article VI means has created 

legal and regulatory uncertainty, Congress could lay that uncertainty to rest with 

a directive to regulatory agencies to abstain from using the lack of Federal oversight 

of a particular activity as a reason to deny a payload review, a launch or reentry 

license, or authorization for satellite transmissions or remote sensing. 

There are clear advantages to this path. It would, of course, create certainty, 

which is helpful to industry’s quest for innovation and investment. It would be longlasting. Most importantly, this path would ensure that before Congress required 

Federal oversight of another activity in space, it would first determine whether a 

real need existed for that oversight. 

B. Let us Not Regulate Everyone for Everything Everywhere in Space 

Congress should not require the authorization and supervision of ‘‘all’’ private activities in outer space by private U.S. nationals. The Supreme Court, in criminal 

and First Amendment cases, has stated that laws should be drafted so that persons 

of ordinary intelligence can tell what is forbidden and what is required. Should Congress decide to require regulation, it should avoid the proposals that would require 

Federal oversight of ‘‘all space activities.’’ Language like that could entrap people 

engaged in perfectly benign activities. They might reasonably believe that something they do all the time on Earth was not a ‘‘space activity’’ or ‘‘operation of a 

space object’’ subject to regulation. What is forbidden or required should be clear 

and the government must provide adequate notice of what has to be authorized. 

Many activities in space shouldn’t require regulation, just as many activities we 

engage in on the ground don’t. Just as there are hazardous activities that may require oversight, there are a host of other activities that don’t. People will engage 

in activities that might endanger themselves, their customers, or their neighbors, 

but they will also perform more ordinary acts. A musician may decide to play the 

harp on the Moon. The Internet tells us that a student group plans a little lunar 

brewing of beer in the interests of science. Rather than enacting overly broad legislation that transfers all of its legislative powers to a regulatory agency, Congress 

could take the more measured and transparent approach of deciding which activities 

require oversight while acknowledging that not all of them do. 

Indeed, without the clarity of identifying the activities that require oversight, 

such a transfer of legislative power would only prolong any regulatory uncertainty 

as industry faced the possibility of having to obtain permission for every little activity proposed. The impact of regulation on the private sector is real. 

Typically, if an agency receives a very broad grant of authority the agency will 

eventually construe that authority to its maximum limits. Were Congress to require 

authorization and supervision of all activities by U.S. entities in outer space, the 

incentives on and responsibilities of regulators—such as making sure they don’t 

miss anything, making sure they don’t allow something dangerous to happen, and 

making sure they know what’s going on—mean that the agencies will attempt to 

oversee more than just those activities that are hazardous to others or pose national 

security concerns. After all, an agency can’t figure out if these threats exist unless 

it finds out all—from the trivial to the hazardous—that an operator plans. Inquiries 

will be made. 

The regulatory process balances a host of competing interests, including transparency, fairness, legal sufficiency, and safety. Unfortunately, these necessary conVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\29998.TXT JACKIE
29 

2The FAA could change its regulations so that it only consulted on isolated questions rather 

than for each payload given how 51 U.S.C. § 50918 phrases the requirement. 

siderations sacrifice efficiency and flexibility. As a society, we consider that sacrifice 

worth it when an activity jeopardizes other people. When an activity doesn’t, we 

must ask if the constraints serve a useful purpose. If Congress were to decide, as 

it has in the past with respect to launch, reentry, remote sensing, and satellite communications, that another space activity required regulation, it should identify that 

activity specifically. Space bakeries, on account of the threats posed by their ovens, 

might require governmental oversight if there were other people nearby. Robotic 

mining of asteroids millions of miles from human habitation might not. Congress 

should not, however, interpret Article VI to require the regulation of everything. 

C. The FAA’s Payload Review: Opportunity or Threat? 

Does the FAA’s statutory payload review authority allow the FAA to provide a 

positive payload determination to an entity not otherwise supervised by the Federal 

Government? Yes, it does. This answer may not, however, be consistent with the 

view of everyone in the Executive Branch because of Article VI’s call for authorization and supervision. 

When conducting a payload review, the FAA must do so consistent with public 

health and safety, safety of property, national security, and foreign policy interests. 

Thus we see that the FAA’s foreign policy authority allows the FAA to make its own 

determinations on foreign policy. Its governing statute, the Commercial Space 

Launch Act, requires the FAA to consult with the State Department on a matter 

affecting foreign policy. The FAA has implemented this requirement 2 in its regulations to state that it consults with the Department of State on foreign policy issues 

for its payload reviews. 

Under the better and more legally sound interpretation of its authority, the FAA 

could use its foreign policy powers to encourage, facilitate and promote the space 

industry. For example, were a prospective lunar harpist to seek a payload determination from the FAA, the FAA would engage in its normal practice of inter-agency consultation. The U.S. Department of State might raise concerns with respect to 

the fact that Congress has not passed legislation to regulate harp playing despite 

Article VI’s proviso that all States Parties to the treaty authorize and continuously 

supervise the acts of their nationals in outer space. With its own foreign policy authority, independent of that of the State Department, the FAA could determine that 

because Article VI is not self-executing, until Congress acts, the U.S. has not determined that playing the harp constitutes the type of activity requiring oversight 

under the treaty. Having satisfied its consultation obligations, the FAA could then 

issue a favorable payload determination. 

Conversely, relying on its foreign policy authority, the FAA could worry that other 

countries might raise issues about Article VI oversight of a lunar harpist and contemplate denying the harpist’s requested payload determination. Such a determination would, as noted, run afoul of the fact that Congress has not determined that 

lunar harp playing is the kind of activity that requires Federal oversight. The FAA 

must make any policy determinations in accordance with U.S. law, and a non-selfexecuting treaty is not, as noted by the Supreme Court’s Medellin opinion, binding 

Federal law. To treat it as such would raise the question of whether the FAA was 

usurping Congress’s legislative role. 

Lunar harp playing is a vaguely ludicrous example of an activity that could take 

place extraterrestrially, but it makes the point that the Outer Space Treaty left the 

determinations of what requires authorization and continuing supervision to each 

signatory nation. If Congress hasn’t decided that lunar harpists or miners require 

oversight for their respective activities, they don’t and the regulatory agencies 

should not attempt to stop these activities. The treaty does not say which activities 

must be regulated, and in the United States that determination lies with Congress. 

For the FAA to say that it had the ability to make such determinations about a nonself-executing treaty would be to say that it, rather than the legislative branch, 

could make the legislative determination. 

Accordingly, because of the FAA’s foreign policy authority muddying the waters 

over the FAA’s responsibilities, the FAA’s payload review creates regulatory uncertainty for industry, and likely merits closer Congressional scrutiny and possible revision. 

D. Most Provisions of the Outer Space Treaty only Apply to Governmental Activity 

in Space 

The bulk of the Outer Space Treaty’s requirements apply to ‘‘States Parties,’’ and 

the United States should not interpret those provisions as applying to private acVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\29998.TXT JACKIE
30 

3Office of Planetary Protection, https://planetaryprotection.nasa.gov/overview (last checked 

May 18, 2017). 

tors. For example, Article IV says that ‘‘States Parties to the Treaty undertake not 

to place in orbit around the Earth any objects carrying nuclear weapons or any 

other kinds of weapons of mass destruction, . . .’’ If Congress wanted to make sure 

that this prohibition applied to private parties, Congress might consider implementing legislation. 

Another provision that calls out for Congressional clarification—as well as a multitude of policy determinations—is whether the harmful contaminations provisions 

(often referred to as the ‘‘planetary protection’’ provisions) of Article IX apply to 

commercial operations. Article IX states, in relevant part, that: 

States Parties to the Treaty shall pursue studies of outer space, including the 

Moon and other celestial bodies, and conduct exploration of them so as to avoid 

their harmful contamination and also adverse changes in the environment of the 

Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. 

Some, including regulatory agencies, claim that Article VI’s provision that States 

Parties to the treaty assure ‘‘that national activities are carried out in conformity 

with the provisions set forth in the present Treaty’’ means that commercial actors 

must abide today, even absent legislation, by each provision in the treaty, even the 

provisions that only apply to governments. 

The first reason to question the applicability of the ‘‘planetary protection’’ provision is that the treaty itself limits this requirement, like many others, to ‘‘States 

Parties.’’ States Parties are governments. When the drafters of the treaty intended 

a particular provision to apply to non-governmental entities they said so. For example, Article IX contains another provision that does apply to non-governmental entities, namely, the requirement for a State Party to consult if it ‘‘or its nationals’’ 

might interfere with others in outer space. 

Secondly, even if it applied, Article IX’s planetary protection provision is not selfexecuting. It requires the legislative branch to make numerous policy judgments, 

such as whether the goals of space science or space settlement should preempt one 

another or may be pursued together. According to NASA’s website,3 ‘‘planetary protection’’ is the term ‘‘given to the practice of protecting solar system bodies (i.e., 

planets, moons, comets, and asteroids) from contamination by Earth life, and protecting Earth from possible life forms that may be returned from other solar system 

bodies.’’ NASA is being a good steward with this approach, but the approach is not 

conducive to human settlement. If Congress were to legislate regarding Article IX’s 

goal of avoiding harmful contamination, Congress should make it clear that human 

beings are not a contaminant. If Congress settled that question, anything with 

equivalent or less biological baggage than a human being should not be required to 

undergo the expensive sterilization protocols now employed for government missions. 

We must keep in mind, however, that the United States did not agree to apply 

the harmful contamination provision to commercial operators. Accordingly, until 

Congress acts, we may hope that the new administration will not attempt to treat 

the harmful contamination provision as binding Federal law for commercial operators. Just as in Medellin where a President could not unilaterally impose a treaty 

obligation on the states, regulatory agencies should not attempt to impose treaty obligations on the private sector without Congressional action. The United States 

could also take this opportunity to clarify its own interpretation of this provision 

as applying only to governmental operations in space, not to the operations of private actors. 

Conclusion 

In closing, I wish to say that Congress, in deciding whether to regulate a particular activity in space, should follow its usual decision-making process for deciding 

whether an activity requires regulation. Can the activity hurt other people? Could 

it have health effects? Are there national security concerns? Are there other, less 

burdensome solutions than Federal regulation? Is it too soon to regulate? Congress 

has placed a moratorium on the regulation of human space flight for safety purposes. Does the same logic apply to lunar harpists? To lunar miners? 

What the United States does not need to do is to regulate purely for the sake of 

regulation, which is what the misunderstandings over the role of Article VI in U.S. 

law may lead to. Nor, unless Congress sees domestic policy reasons for doing so, 

does the United States have an international obligation to impose the harmful contamination provisions on the private sector. 

31 

Thank you for the opportunity to testify before you today. I look forward to working with you on these issues in the future. 

Senator CRUZ. Thank you, Ms. Montgomery. 

Mr. Schaefer. 

STATEMENT OF MATTHEW P. SCHAEFER, 

VERONICA A. HAGGART & CHARLES R. WORK PROFESSOR 

OF INTERNATIONAL TRADE LAW; CO-DIRECTOR—SPACE, 

CYBER AND TELECOMMUNICATIONS LAW PROGRAM, 

UNIVERSITY OF NEBRASKA COLLEGE OF LAW; AND CO-CHAIR, 

AMERICAN BRANCH OF INTERNATIONAL LAW ASSOC. 

SPACE LAW COMMITTEE 

Mr. SCHAEFER. Chairman Cruz, Ranking Member Markey, members of the Subcommittee, it’s an honor and pleasure to be here 

today for this very timely hearing. 

It is timely because of the Outer Space Treaty’s (OST) 50th anniversary, all the innovative and important new space activities of 

U.S. businesses—many of whose representatives are actually in the 

audience today—and given the fact the U.S. has a current authorization gap for new space activities, things like asteroid mining, 

lunar landers, on-orbit satellite servicing, lunar research facilities 

and laboratories. This authorization gap creates a problem in two 

ways. First, it creates uncertainty for industry. That doesn’t help 

investment. That doesn’t help business cases. Second, as activities 

go forward, it may create compliance problems with U.S. international obligations, which also can create problems, as I’ll elaborate on a bit further. 

The U.S. has agreed to a set of treaty interpretation rules internationally that are expressed in the Vienna Convention on the Law 

of Treaties. The primary rule in that document is that we interpret 

treaties according to the ordinary meaning of the terms of the treaty in their context and in light of object and purpose. It’s very clear 

that Article VI of the OST calls on the U.S. and other parties to 

the OST to authorize and supervise commercial space activities in 

order to assure their compliance with the OST. It further makes 

parties internationally responsible for non-governmental activities 

in outer space. This Article VI obligation seems to strike fear into 

some people, and it shouldn’t. 

OST obligations are very minimally burdensome and quite flexible in how they can be interpreted. It’s a basic set of principles, a 

few minimally burdensome rules, which, by the way, help advantage U.S. companies as well. If we don’t respect our obligations 

under Article VI of the OST to create an authorization and supervision regime, we’re going to face consequences. Our industry will 

face consequences. Foreign retaliation is possible and a lot of space 

businesses are global in nature. They depend on global partners, 

customers, and investors to make out their business case. When 

the U.S. Government doesn’t respect its international treaty obligations, foreign governments can retaliate; take away markets, take 

away customers; take away foreign partners—and foreign investors 

can shy away. 

Second, when a U.S. company is a first mover up in outer space, 

other countries will not respect these basic, minimal norms when 

it comes to how they will interact with that first moving U.S. comVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00035 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\29998.TXT JACKIE
32 

pany. Both of those impacts of treaty non-compliance would create 

uncertainty for U.S. space companies. 

On the self-executing nature of the OST, we could debate that 

endlessly. The U.S. Senate has done an excellent job since the U.S. 

Supreme Court’s 2008 Medellin case, making very clear which articles of treaties are self-executing and non-self-executing. For older 

treaties, we’re trying to glean U.S. political branch intent on the 

issue of self-execution from treaty text and less explicit domestic 

materials. 

But the important point is even if the OST Article VI is non-selfexecuting, the international obligation remains. If we do not comply with it, we will face the consequences I just laid out. Further, 

the Congress has directed, when it comes to launch licenses and 

payload reviews, the Department of Transportation to take into account our international obligations. 

What is creating the authorization gap is not a failure of Congress to direct the Administration to comply with our international 

obligations. Rather, what creates the regulatory gap is the legislative history to the 1998 amendments to the Commercial Space 

Launch Act that indicate that Congress was not intending to grant 

on-orbit authority to the Executive Branch. 

The U.S. Congress did an excellent job in the Space Resource Exploration and Utilization Act of 2015 by highlighting our international obligations when they laid out that there can be property 

rights in extracted resources, a long-standing U.S. interpretation of 

the OST. That continuity internationally creates certainty internationally and also helped the U.S. lessen vocal international opposition to the law. That’s the page out of the playbook that should 

be adopted when we establish an on-orbit authorization regime. 

In short, there’s no need to terminate the OST. There’s no need 

to amend it. There’s no reason to stray from our agreed-upon treaty 

interpretation rules. There’s no reason to ignore the plain meaning 

of Article VI, and there’s certainly not a need to pay attention to 

certain OST obligations and reject others. We can have an OSTcompliant regime that meets the spirit of permissionless innovation, something that led to the growth and success of the Internet 

economy, and I’d be happy to share further ideas on that in the 

question and answer session. 

Thank you very much. 

[The prepared statement of Mr. Schaefer follows:] 

PREPARED STATEMENT OF MATTHEW P. SCHAEFER, VERONICA A. HAGGART & 

CHARLES R. WORK PROFESSOR OF INTERNATIONAL TRADE LAW; CO-DIRECTOR— SPACE, CYBER AND TELECOMMUNICATIONS LAW PROGRAM, UNIVERSITY OF

NEBRASKA COLLEGE OF LAW; AND CO-CHAIR, AMERICAN BRANCH OF INTER- NATIONAL LAW ASSOC. SPACE LAW COMMITTEE

Mr. Chairman and Members of the Subcommittee, it is an honor and a pleasure 

to be here today to share my views on today’s hearing topic: ‘‘Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space.’’ 

This hearing is especially timely. The Outer Space Treaty (OST), or more formally 

the Treaty on Principles Governing the Activities of States in the Exploration and 

Use of Outer Space, including the Moon and Other Celestial Bodies, is celebrating 

its 50th Anniversary this year. Commercial space business plans and activities are 

increasing rapidly, including plans for new on-orbit activities going beyond traditional remote sensing and communications satellites, such as asteroid mining, lunar 

or on-orbit research facilities and hotels, and on-orbit satellite servicing. And, at the 

33 

1See ADAM THIERER, PERMISSIONLESS INNOVATION: THE CONTINUING CASE FOR 

COMPREHENSIVE TECHNOLOGICAL FREEDOM (2016). 2 In accord with Statement of Dennis J. Burnett, Hearing of House Science Committee Space 

Subcommittee, March 8, 2017, pp. 8–9. 

same time, the U.S. Government currently suffers from an on-orbit authorization 

gap for new activities that go beyond remote sensing and communications—two activities with current licensing regimes administered by NOAA and the FCC, respectively. The authorization gap for new on-orbit activities creates uncertainty for U.S. 

commercial space businesses and investors, and as activities proceed, may also create compliance problems with U.S. international obligations under the OST. The Executive Branch was able to handle the Moon Express situation under existing authorities given the limited nature of its activities, but authorization of more elaborate activities is likely to require new authorities. In any event, it is in the U.S. 

national interest and the interest of the U.S. commercial space industry to have a 

certain and predictable process for authorization established that complies with U.S. 

international obligations. 

The U.S. commercial space industry can flourish under the existing OST. Indeed, 

the U.S. can establish a licensing or authorization regime for new on-orbit space activities that complies with the OST and still meets the spirit of permissionless innovation, a concept many credit with the growth and success of the Internet economy. 

I refer the committee to my article The Contours of Permissionless Innovation in the 

Outer Space Domain forthcoming in Vol. 39 of the University of Pennsylvania Journal of International Law (Fall 2017) for a detailed examination of these issues. The 

article is available publicly now on the Social Science Research Network (SSRN) at 

http://ssrn.com/abstract=2942526. Today, I wish to highlight important findings 

from that article but also push further into some of the international and domestic 

dynamics involved in the today’s hearing topic. 

Permissionless innovation is rarely, if ever, pure in the sense of the complete absence of government regulation altogether. Instead, the core of a permissionless innovation framework is a default presumption in favor of permission with limited 

constraints.1 The OST has very minimal constraints on private space activities—and 

those minimal constraints can actually help protect U.S. commercial industry from 

harmful actions of other nations and actors. In short, there is a basic compatibility 

between a flourishing and competitive commercial space industry here in the United 

States and U.S. compliance with our obligations in the OST. 

There is no need for the United States to withdraw from or even seek amendment 

to the OST. There is no need for the United States to abandon long-established and 

long-agreed upon treaty interpretation rules when interpreting the OST. There is 

no need to ignore the plain language of Art. VI of the OST—a provision that requires ‘‘authorization’’ and ‘‘supervision’’ of the activities of a country’s commercial 

space actors in order to ‘‘assure’’ their conformity with the provisions of the OST. 

There is no need to only pay attention to certain OST obligations and ignore others. 

Undertaking any of the above listed actions will actually undermine U.S. commercial space industry prospects. 

The U.S. commercial space industry—including segments involved in new on-orbit 

activities—relies on global markets for their business case. Partners, investors and 

customers from abroad are often necessary to the business case. 

If the United States does not take the minimal steps necessary to comply with 

OST Art. VI, U.S. companies engaged in these activities may face foreign retaliation 

in the form of denying access to customers or partners, and investors from abroad 

may shy away as well. The United States will also not be able to credibly insist that 

foreign governments when conducting their space activities not harmfully interfere 

with U.S. commercial activities. This diminished credibility would put at risk the 

large and often long-term investments U.S. commercial space companies undertake. 

If the Congress tasks the Executive Branch with protecting U.S. commercial space 

actors from foreign interference, it must also task the Executive Branch with considering harmful interference an applicant might cause not only to pre-existing U.S. 

Government operations or other pre-existing U.S. commercial operations, but also 

harmful interference that might be caused to pre-existing foreign activities. 

The United States can and should maintain the continuity of the OST and U.S. 

leadership in outer space matters. Congress can and should create a certain and 

predictable domestic authorization framework for new on-orbit commercial space activities that complies with the OST2 and comports with the spirit of permissionless 

innovation. The continuity maintained internationally and the (hopefully) soon created predictability and certainty within a U.S. domestic authorization process will 

yield large benefits to the U.S. commercial space industry. If such a path is followed, 

the risk of retaliation by foreign governments for failure to abide by the OST and 

34 

3 Available at https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf 4See Letter from Secretary of State Vance to Sen. Church, Chairman of Senate Foreign Relations Committee, Nov. 28, 1979, reprinted in Agreement Governing the Activities of States on 

the Moon and Other Celestial Bodies, Senate Committee on Commerce, Science and Transportation, August 1980, at p. 313 (stating that the Moon Treaty provides no moratorium on exploitation of space resources, that Art. II of the Outer Space Treaty’s ban on appropriation only 

applies to resources in place, and that the Outer Space Treaty and Moon Agreement would allow 

for ownership of extracted space resources) ; See also Testimony of State Dept. Legal Advisor 

Owen in Hearings Before the Subcommittee on Science, Technology and Space of the Senate 

Committee on Commerce, Science, and Transportation on Agreement Governing the Activities 

of States on the Moon and Other Celestial Bodies (96th Cong., July 29 & 31, 1980)(both oral 

and written testimony) at p. 2–19 (‘‘American companies will have a continuing legal right to 

exploit the Moon’s resources. . . .’’; ‘‘. . . once [resources] have been extracted from the Moon, 

ownership can be asserted at that point. . .’’; ‘‘exploitation [can] go forward and that one can 

own what one can remove from the surface or subsurface of a celestial body . . . the negotiating 

history [of the Moon Agreement] makes it very clear that that was contemplated by the parties.’’; ‘‘The United States took the position from the outset that such exploitation should be permitted, that such ownership after extraction should be permitted. And that . . . is an authoritative interpretation. . . .’’; ‘‘. . . we have insisted that even after such a regime is established 

[an international one under the Moon Treaty], the right of unilateral exploitation will continue 

to be available to those States which choose not to participate in such a regime.’’) 5 Available at https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf 

the risk of any last minute stoppage by the Executive Branch of a new on-orbit activity for reasons of international obligation compliance or national security will be 

greatly reduced or eliminated altogether. Investors in these new space industries 

will have legal certainty that should help stimulate investment and growth in these 

industries. 

What the Congress provided for in the Space Resource Exploration and Utilization 

Act of 2015 (within Public Law 114–90) is a perfect example of maintaining consistency internationally while creating greater certainty and predictability domestically 

in a fashion that respects U.S. international obligations and dampens negative foreign reactions. The act in Section 402 provides the following: 

A United States citizen engaged in commercial recovery of an asteroid resource 

or a space resource under this chapter shall be entitled to any asteroid resource 

or space resource obtained, including to possess, own, transport, use, and sell 

the asteroid resource or space resource obtained in accordance with applicable 

law, including the international obligations of the United States. 3(emphasis 

added). 

These provisions of U.S. law are fully consistent with at least 35 years of longstanding U.S. policy and legal interpretations dating back to 1979–1980 in statements by Secretary of State Vance and State Department Legal Advisor Owen.4

The reference to international obligations in the U.S. statute envisions compliance 

with Art. VI of the OST and thus provides a further justification for Congress to 

move forward and fill the existing regulatory gap for new on-orbit activities. Just 

as importantly Congress included a statement in the law in Section 403 that states: 

It is the sense of Congress that by the enactment of this Act, the United States 

does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.5

This statement acknowledges U.S. obligations under the OST Art. II and helps 

dampen any negative reaction to the codification of long-standing U.S. interpretations of OST regarding property rights in extracted resources. 

The important lesson from the Space Resource Exploration and Utilization Act of 

2015 is it matters not just what Congress says in a law but how it says it. Congress 

can provide for consistency internationally while simultaneously creating certainty 

and predictability domestically—all to the benefit of U.S. commercial space interests. Referencing international obligations and paying heed to the non-sovereignty 

obligation in Art. II makes many more countries willing to hop on board or at least 

not overtly object to the long-standing (and correct) U.S. interpretation that Art. II 

does not prohibit property rights in extracted resources. Some countries, of course, 

will continue to oppose the U.S. interpretation for reasons of perceived national interest but that group is smaller and less vocal than would be the case had Congress 

not mentioned and respected U.S. international obligations in the statutory language of the Space Resource and Utilization Act of 2015. 

Imagine if instead the United States took the radical step of withdrawing from 

the Outer Space Treaty because some countries disagree with the U.S. interpretation regarding Art. II as it relates to ownership rights in extracted resources. Initially, the question would arise whether withdrawing from the OST would actually 

35 

6See Matthew P. Schaefer, The Contours of Permissionless Innovation in the Outer Space Domain, forthcoming in Vol. 39 Univ. of Pennsylvania Journal of International Law (Fall 2017), 

available currently at http://ssrn.com/abstract=2942526 

eliminate the non-sovereignty obligation in any event since many believe the obligation to now apply as a matter of customary international law as well as treaty law. 

Terminating the treaty obligation would not terminate the customary international 

law obligation. But setting that issue aside, U.S. termination of the OST would likely prompt other major space powers to withdraw from the OST, and thereby allow 

any other nation arriving first to the celestial body after the treaty terminations to 

declare sovereignty over vast swaths of the celestial body, setting up a show down 

with later arriving U.S. commercial interests. That is not the legal consistency, predictability and certainty that U.S. space interests deserve. Moving forward to the 

drafting and creation of a U.S. authorization regime for new on-orbit activities, 

there is similarly a large downside to changing or ignoring long-standing treaty interpretation methods or ignoring some OST provisions altogether. 

As described and summarized in the abstract to my Permissionless Innovation article forthcoming in the University of Pennsylvania Journal of International Law: 

A permissionless innovation regulatory model . . . is being explored for adoption in the outer space domain, given the amount of innovation by commercial 

entities in that sector. However, translation of the model to outer space is complex because permissionless innovation is contextual, and the outer space domain differs from the cyber domain in important respects: First, international 

obligations require the U.S. Government to authorize and supervise commercial 

space activities. Second, national security concerns are potentially raised by 

even every day, non-illicit space activities. Third, space business investors actually demand enhanced regulatory certainty given the risk and often long-time 

horizons of their investments. 

New on-orbit space activities . . . currently fall within a regulatory gap—the 

Executive Branch lacks express Congressional delegation to regulate such activities. This situation may appear to be a victory for proponents of a nearly 

pure or unadulterated version of permissionless innovation. Indeed, to protect 

the status quo, permissionless innovation advocates are ignoring long-established and agreed upon rules of treaty interpretation to argue the U.S. Government is not under an obligation to authorize and supervise U.S. commercial 

space companies’ activities. 

The irony is that the current gap actually undermines the benefits of permissionless innovation. The Executive Branch faces a Hobbesian choice of following 

Congressional intent and standing aside as new on-orbit activities are engaged 

in or complying with international obligations and addressing potential national 

security concerns by continuing to leverage existing authorities in an attempt 

to control new on-orbit activities. U.S. commercial space businesses—the 

innovators—are left in a similarly difficult situation: facing a risk of foreign government retaliation in event of U.S. Government non-compliance with international obligations or being forced to engage in costly and time-consuming litigation if the U.S. Government blocks their proposed activity by stretching existing authorities. Fortunately, the U.S. Congress can enact a solution that fills 

the gap—one that provides compliance with international obligations, protects 

national security, and affords regulatory certainty for U.S. space businesses 

while at the same time ensuring that permissionless innovation thinking and 

espris de corps controls the interagency approval process, including a default 

presumption in favor of approval.6

A Closer Look at Article VI of the OST and Obligations in the OST that 

Might Minimally Impact U.S. Commercial Actors and Simultaneously 

Help Protect U.S Commercial Space Businesses 

OST Art. VI provides the following: 

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, 

36 

7 Available at http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty 

.html 8See Vienna Convention on Law of Treaties [hereinafter VCLT], Arts. 31–32, available at 

https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf 9See, e.g., https://www.state.gov/s/l/treaty/faqs/70139.htm 

10See VCLT, supra note 8. 11See MACMILLAN DICTIONARY, http://www.macmillandictionary.com/us/dictionary/american/authorize (last accessed Feb. 24, 2017). 12See BUSINESS DICTIONARY, http://www.businessdictionary.com/definition/continuing.html 

(last accessed Feb. 24, 2017). 13See Schaefer, supra note 6. 14See Medellin v. United States, 552 U.S. 491, 505, fn. 2 (2008)(’’ The label ‘‘self-executing’’ 

has on occasion been used to convey different meanings. What we mean by ‘‘self-executing’’ is 

that the treaty has automatic domestic effect as Federal law upon ratification. Conversely, a 

‘‘non-self-executing’’ treaty does not by itself give rise to domestically enforceable Federal law. 

Whether such a treaty has domestic effect depends upon implementing legislation passed by 

Congress.’’). 

shall require authorization and continuing supervision by the appropriate State 

Party to the Treaty. . . .7 (emphasis added). 

The first sentence providing that States Parties bear international responsibility 

for their non-governmental (commercial) entities’ activities is quite unique in international law. Normally, a government is not responsible for purely private conduct 

in the absence of a strong link such as the government exercising direction or effective control over the private activity. This provision was part of the trade-off in the 

negotiation of the OST in which the original Soviet proposal was to ban private actors from space altogether. The OST clearly allows for and anticipates commercial 

space activity but makes State Parties internationally responsible for such activity. 

The last clause of the first sentence of OST Art. VI also provides that States Parties 

must assure that national activities (including those by its commercial actors) are 

carried out in conformity with the OST. The second sentence then requires the appropriate State Party to undertake ‘‘authorization and continuing supervision’’ of its 

non-governmental (commercial) space activities. 

Well-established and long-agreed to treaty interpretation rules are codified in the 

Vienna Convention on the Law of Treaties (VCLT), Articles 31 and 32.8 Although 

the United States is not a party to the VCLT, it has long recognized that it considers itself bound to many of its provisions, including the treaty interpretation 

rules, as a matter of customary international law.9 VCLT Art. 31(1) provides the 

following primary rule of treaty interpretation: 

A treaty shall be interpreted in good faith in accordance with the ordinary 

meaning to be given to the terms of the treaty in their context and in the light 

of its object and purpose. 10 (emphasis added). 

Thus, when interpreting what authorization and continuing supervision requires 

within OST Art. VI, the VCLT mandates looking to the ordinary meaning of those 

terms in their context and in light of their object and purpose. As written in my 

Permissionless Innovation article: 

The ordinary meaning of authorize is ‘‘give official permission or approval to,’’ 

or ‘‘to give official permission for something to happen.’’ 11 The ordinary meaning of supervision is to ‘‘monitor,’’ and the ordinary meaning of continuing is 

‘‘occurring in a cyclical or repetitious pattern.’’ 12 In short, authorize and continuing supervision require some process to ‘‘give official permission or approval 

to,’’ and ‘‘monitor’’ in some ‘‘cyclical or repetitious pattern’’ with at least one 

purpose of such process to ‘‘assure’’ that commercial actors are complying with 

OST obligations.13

The first sentence of Article VI provides the context to the authorization and continuing supervision obligation. States parties are to authorize and supervise to ‘‘assure’’ conformity by their commercial actors with provisions of the OST. All of this 

only mandates very light-touch regulation because OST obligations applied to commercial actors are far from onerous as will be displayed below. It is important to 

realize that those same obligations help to some extent protect U.S. commercial 

space actors from injurious foreign actions. 

The fact that Art. VI is argued to be non-self-executing by many does not change 

the situation. Whether a treaty is self-executing is an issue of whether the treaty 

automatically enters the U.S. domestic legal system.14 The Executive Branch in the 

prior Administration proposed a Mission Authorization Framework to implement 

Art. VI. If the Executive Branch believed that Art. VI was self-executing, then it 

would already maintain domestic authority to authorize on-orbit activities, at least 

to ensure their compliance with the OST, unless the legislative history to the 1998 

37 

15See H.R. REP. NO. 105–347 (1997). 16See Medellin, 552 U.S. 491 (2008). 17See, e.g., Sen. Ex. Rep. 110–12 (Senate Foreign Relations Committee ‘‘included a proposed 

declaration that states that [the] treaty is self-executing. This declaration is consistent with 

statements made in the Letters of Submittal from the Secretary of State to the President on 

each of these instrument and with the historical practice of the committee in approving extradition treaties. Such a statement, while generally included in the documents associated with 

treaties submitted to the Senate by the Executive Branch and in committee reports, has not 

generally been included in Resolutions of advice and consent. The committee, however, proposes 

making such a declaration in the Resolution of advice and consent in light of the recent Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346 (2008), which has highlighted the utility 

of a clear statement regarding the self-executing nature of treaty provisions). 18See 51 U.S.C. 50905(b). 19See 51 U.S.C. 50919(e). 20This checklist is drawn from Schaefer, supra note 6. 

space launch amendments indicating Congress did not wish to grant on-orbit authority 15 to the Executive Branch overrode that pre-existing authority. 

It is no surprise that there is some debate over whether OST Art. VI or other OST 

obligations are self-executing. The Senate and other political branches do an excellent job since the Supreme Court’s 2008 decision in Medellin,16 and even beginning 

in the decade or two prior to that decision, in expressing their intent on the issue 

of self-execution in domestic documents connected with treaties, such as in declarations included in Senate Resolutions of Advice and Consent.17 For many older treaties, such as the OST, Senate and political branch intent is often not so clear in 

domestic documents concerning the treaty, and that allows room for debate on the 

topic. But the key point today is that the international obligation created by Art. 

VI remains regardless of whether it is self-executing and failure to abide by it will 

risk foreign retaliation undermining the business case of U.S. commercial space 

companies and risk foreign space activities interfering with U.S. commercial operations. 

Congress is in position to implement U.S. obligations under Art. VI by passing 

legislation creating an authorization framework for new on-orbit activities that 

‘‘assures’’ compliance by U.S. commercial space companies with OST provisions. 

Passing implementing legislation also allows Congress to craft an authorization regime that comports with the spirit of permissionless innovation and mandates that 

Executive Branch take into account a limited number of other factors beyond OST 

compliance, such as national security/harmful interference with pre-existing U.S. 

Government and harmful interference with existing U.S. commercial space assets. 

Congress has actually directed the Department of Transportation (DOT) in consultation with other agencies to take account foreign policy when granting launch 

licenses and conducting payload reviews.18 In fact, Congress was even more specific 

in directing the DOT to ‘‘. . . carry out this chapter consistent with an obligation 

the United States Government assumes in a treaty, convention, or agreement in force 

between the Government and the government of a foreign country. . . .’’ 19 (emphasis added). This Congressional directive allows the Executive Branch in its regulations regarding launch licenses and payload reviews to take account of U.S. international obligations (whether self-executing or not). Congress has directed by legislation the DOT do so. What is creating the regulatory gap and potential future compliance problems with the OST is the legislative history to the 1998 amendments 

to the U.S. commercial space launch act in which Congress indicated it was not 

granting on-orbit authority to the DOT, rather only adding reentry authority to existing launch authority. 

If one goes through the OST to see what obligations implicate commercial actors, 

one is left with essentially the following checklist 20: 

(1) Does the applicant’s planned activity claim surface or sub-surface rights on a 

celestial body or prevent free access to all areas of a celestial body, keeping 

in mind legitimate rights to be free from harmful interference and legitimate 

rights to extracted resources? (OST Arts. I, II & IX) 

(2) Does the applicant’s planned activity cause potentially harmful interference 

with foreign space activities? (OST Art. IX) 

(3) Does the applicant’s planned activity risk harmful contamination of a celestial 

body with Earthly matter? (OST Art. IX) 

(4) Is the applicant willing to allow visits, based on reciprocity, to its stations and 

equipment with maximum precautions and conditions to ensure safety and no 

interference with their operations? (OST Art. XII) 

(5) Is the applicant respecting ownership rights of a foreign operator’s space object? (OST Art. VIII) 

38 

21See Schaefer, supra note 6. 22See U.S. Commercial Space Launch Competitiveness Act of 2015, Public Law No. 114–90, 

§ 111(5). 

One might add as a sixth factor that the applicant is willing to take possible steps 

to assist astronauts in distress should a need arise, although this is likely to be impossible in most circumstances. The fourth factor is also unlikely to arise in most 

instances because only a few countries would have the capabilities to even consider 

a visit, and those countries are unlikely to utilize their limited resources to attempt 

to visit another country’s commercial stations or equipment, particularly when that 

visitation right is limited by reciprocity, as well as the ability to limit visits for safety and non-interference reasons, and also bounded by budgetary constraints. Moreover, the ordinary meaning of the term visit means something of short duration and 

that is not extensive or intrusive. Further, an examination of the context and object 

and purpose of the provision may very well indicate that it was intended to allow 

verification of arms control provisions of the OST, thus obviating the need for visits 

to U.S. commercial stations and equipment. 

The above list of factors to take into account in ensuring OST compliance is not 

onerous, particularly when one realizes there is significant flexibility in how to define various terms such as potentially harmful interference and harmful contamination. Moreover, the obligation in Article IX regarding potentially harmful interference is only an obligation to consult in advance but does not prohibit proceeding 

with the activity. The U.S. commercial space industry will benefit if the U.S. Government is able to engage in consultations with foreign governments if a planned 

activity by a foreign government might cause potentially harmful interference with 

U.S. commercial activities. 

The U.S. Government can even have industry involved in setting the standards 

that define terms such as harmful interference and harmful contamination provided 

such definitions do not stray from the ordinary meaning of those terms. For example, some worry that COSPARS planetary protection standards developed in a scientific era of space will necessarily apply to U.S. commercial actors and that those 

standards will impose undue costs and burden on commercial actors. This concern, 

however, is unjustified 21: 

. . . for a number of reasons [COSPARS] standards, created and followed in a 

science-inspired coalition of governments and scientists, do not create a floor for 

what constitutes harmful contamination under the OST. The U.S. Government 

recognizes that COSPARS standards do not constitute ‘‘subsequent practice establishing the agreement of the parties’’ under the Vienna Convention on Law 

of Treaties interpretation rules and thus the U.S. Government need not follow 

these standards in authorizing on-orbit activities. Instead, the U.S. Government 

has the flexibility to set its own planetary protection standards in a commercial 

environment or follow industry set standards. Congress recently has promoted 

industry standards over safety matters by requiring periodic reports from the 

FAA in consultation with industry on such matters every 30 months.22 Congress 

could similarly push the FAA to promote industry standards on matters related 

to ensuring compliance with OST obligations by private parties—specifically 

non-interference and harmful contamination (planetary protection) standards. 

To meet the continuing supervision obligation, the U.S. Congress can simply require licensees to report material changes to operations or business plans as they 

occur and, in any event, provide a report to the authorizing agency once per year 

on activities. As the largest user of space, the United States has a significant national interest in maintaining and observing the basic, minimally burdensome rules 

found in the OST and thus maintaining the credibility and ability to pressure other 

nations to play by the same basic, minimally burdensome rules. 

Failing to Fill the On-Orbit Authorization Gap Not Only Risks NonCompliance with the OST but Also Creates Regulatory Uncertainty and 

National Security Risks for Commercial Space Actors 

COMSTAC has called for a clear, transparent and predictable framework for authorizing and supervising new on-orbit activities. The industry panel later today will 

provide an opportunity to hear directly from industry on this matter, but certainty 

and predictability assist industry in obtaining investment and making efficient use 

of their resources. Investors are willing to take risk on the success of a technology, 

but regulatory uncertainty risk they are not particularly keen on assessing or undertaking. 

Additionally, there will need to be some acknowledgement of national security 

concerns (at least to protect important U.S. Government space assets) in any onVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\29998.TXT JACKIE
39 

23See Statement of Doug Lovero, Hearing of House Science Committee Space Subcommittee, 

March 8, 2017, at pp. 7–9. 24These eight factors are drawn and slightly modified from with shortened analysis from 

Schaefer, supra note 6. 25See American Space Renaissance Act, HR 4945, § 309(a)(2)(C)(ii). One could also consider 

a factor that ensures space artifacts are not harmed, such as Tranquility Base, the location on 

Moon where Neil Armstong’s footprints still reside and other similar artifacts. This additional 

factor would only implicate activities on the Moon in any event. 

orbit authorization framework created by Congress. Otherwise, the Executive 

Branch will always be tempted, even if it requires stretching current authorities, 

to prevent activities that might cause damage to important national space assets. 

This is one of the risks created by the current regulatory gap for on-orbit activities, 

a risk of a last minute blocking of a particular commercial activity. Former Deputy 

Assistant Secretary of Defense for Space Policy Doug Lovero’s testimony in early 

March 2017 23 before the House Science Committee’s Space Subcommittee highlighted that the damage caused by accidents in space is not limited in time or geography given the physics of space. He also noted an occasion where were it not for 

the voluntary accommodation of a commercial space company to modify its plans, 

the U.S. Government would likely have taken action to prevent or block the commercial company’s plans from moving forward due to the risk of damage to an important U.S. Government space asset. 

Guiding Principles and Concepts for an On-Orbit Authorization Regime 

that Meets OST Article VI Obligations and Comports with the Spirit of 

Permissionless Innovation 

I would like to offer eight principles for consideration by this Subcommittee and 

by the Congress as a whole to help ensure the spirit of permissionless innovation 

pervades the OST-compliant authorization regime it should create for new on-orbit 

activities 24: 

1. Creating a Default Presumption in Favor of Approval 

A default presumption in favor of approval is at the core of permissionless innovation thinking and should be a feature in any on-orbit licensing regime Congress 

adopts. 

2. Limiting the Factors that Can be Considered by the Executive Branch in Making 

Determinations 

Factors for the Executive Branch to consider in authorizing new on orbit activities 

can be limited to compliance with international obligations, U.S. national security 

interests (or at least protection of U.S. government space assets), measures to limit 

space debris, and ensuring the proposed activity does ‘‘not result in harmful interference with [already] approved and operating [U.S.] payloads and associated activities.’’ 25 The latter factor is necessary to protect U.S. commercial first movers from 

interference from U.S. commercial second-movers. Compliance with international obligations only deals with interference between U.S. companies and foreign entities. 

There is some concern over abuse of non-interference rights or what may be 

termed ‘‘space squatting.’’ For example, envision a scenario of a company rushing 

a comparatively low-cost asset to a particularly valuable area of the Moon in order 

to attempt to cordon off an area through creation of a non-interference right. Congress can direct the Executive Branch to look at interference rights in this context 

with particular caution. Harmful interference is not defined in the OST nor in current domestic legislative proposals so there is flexibility to account for this scenario 

both internationally and domestically. As elaborated later in this testimony, this is 

one reason the Executive Branch armed with the ability to account for the economic, 

technical and diplomatic issues surrounding such scenarios should make these determinations, rather than creating a right of action in U.S. courts for adjudication. 

This is also another reason that companies should report material changes in operation to the licensing agency as part of that agency’s continuing supervision obligation. License conditions can also be utilized by the agency to prevent any attempted 

‘‘space squatting.’’ It is also important to note that the OST Art. II by prohibiting 

property rights in the surface or sub-surface of celestial bodies but allowing property 

rights in extracted resources with a limited non-interference rights for operations 

actually achieves in broad brush strokes a balance that seeks to avoid ‘‘space squatting’’ possibilities, particularly when one recalls that harmful interference is not defined and in any event really only triggers an advance consultation obligation. In 

the international context, as cases arise, the U.S. government will be able to address 

situations of this kind in bilateral negotiations with the relevant country—no major 

multilateral agreement is need or even wise at this stage. 

40 

26See Schaefer, supra note 6. 27See, e.g., COALITION OF FED. OMBUDSMAN, http://federalombuds.ed.gov/federalombuds/ 

index.html (last accessed Feb. 24, 2017). 28See id. 

3. Enhancing the Default Presumption by Explicitly Declaring U.S. Leadership in 

Specific New Activities being Contemplated is in the National Security Interest 

of the United States 

It is hard to contest that it is in the U.S. national security interest to have U.S. 

companies be the first to engage in new on-orbit activities, such as asteroid or lunar 

mining and to establish private research labs or hotels in-orbit or on the Moon. Congress can acknowledge and confirm this expressly in the statute to limit national 

security grounds for denying applications. While on-orbit satellite servicing is a bit 

more sensitive, it is far better to have U.S. companies be leaders than followers in 

this industry segment as well. 

4. Granting Lead Interagency Status to An Agency Directed to Promote Industry (& 

That Has Experience In Licensing and Inter-Agency Coordination) 

If an agency with promotion authority of the industry is given a lead role in an 

interagency process, then it can help ensure that the benefits of an activity are fully 

considered as well as potential foreign competition that might seek to benefit from 

less stringent authorization processes abroad. Additionally, if an agency that has experience in licensing is given the authority this will help reduce transaction costs 

and avoid possible duplication in processes. For example, the FAA–AST has both 

promotion authority and experience in licensing and inter-agency coordination in 

commercial space matters and is likely the best candidate to be the lead agency for 

reviewing new on-orbit space activities. If such authority is given to another agency, 

duplication may be created as FAA–AST will still conduct a payload review, separately or as part of a launch license. Given the State Department’s lead role in treaty interpretation and international consultations on space matters, and DOD’s 

knowledge of critical national security space assets, it is important that on-orbit licensing remain an interagency process. Simply adding an on-orbit component to the 

existing payload review, along with the other suggestions made in these eight principles, may be the least costly and least disruptive solution to solving the on-orbit 

authorization gap. 

5. Establish Deadlines with Executive Branch Notification and Reporting Requirements to Congress 

In order to spur timely authorization decisions, the Congress can place significant 

notification and reporting requirements on the Executive Branch in any delegation 

of on-orbit authority to the Executive Branch. 

6. Consider Establishing an Ombuds as Well as Possible Appeal Avenues to the 

President or Vice-President in Cases of Denial 

I argued in my Permissionless Innovation article for consideration of two possible 

ideas to provide an avenue for a company to seek to overturn a denial of authorization and/or speed along delayed decision-making 26: 

Congress might . . . consider creating an ombuds 27 with a top security clearance that is able to intervene in cases in which decisions are delayed or rationales for decisions are not fully explained (or cannot be explained due to lack of 

proper security clearances by applicant company officials). Executive ombuds 

take complaints regarding agency action and have been created by statute on 

numerous occasions by the Congress. In fact, there are so many ombuds that 

a coalition of Federal ombuds has been created.28 Congress can also add an appeal to a higher authority, such as a Vice-President-led Space Council. . .or the 

President, in situations in which the ombuds working with the interagency 

process and the company has not reached satisfactory resolution. 

7. Limit Chances for Regulatory Arbitrage and ‘‘Flags of Convenience’’ to Help Ensure Innovation Occurs in United States 

If the Congress limits the factors the Executive Branch may consider in authorizing new on-orbit activities to compliance with international obligations, national 

security (including protection of U.S. government space assets), mitigation of space 

debris, and non-interference with other existing U.S. space operators, it is quite unlikely that any regulatory arbitrage or ‘‘flag of convenience’’ situation will arise in 

which companies move abroad to take advantage of weaker licensing requirements. 

However, the regulatory uncertainty caused by the gap currently existing due to the 

lack of an authorization regime for on-orbit activities also risks driving commercial 

41 

29See Schaefer, supra note 6. 30See id. 31See id. 32See id. 

space business overseas as companies potentially look for countries willing to provide a license and certainty for investors. As a further assurance against regulatory 

arbitrage, the Congress might, if deemed necessary, require the interagency process 

led by the FAA–AST to consider in its decision making the global nature of the industry and the goal of not placing U.S. commercial space entities at a competitive 

disadvantage compared to the regulatory frameworks and authorization processes 

adopted by foreign countries. 

8. Have U.S. Government Both Encourage and Give Substantial Deference to Industry Standards 

Private standards-setting bodies and self-regulating organizations cannot in themselves be alternatives to an authorize and supervise framework consistent with OST 

Art. VI because Art. VI requires the government to be the one authorizing and supervising. However, as discussed earlier, there is no prohibition on the U.S. government deferring to industry-set standards and standards of self-regulating organizations (e.g., for what constitutes harmful interference or harmful contamination) in 

determining whether to authorize an activity.29

Two Approaches that Should be Avoided in Authorizing On-Orbit Activities 

Finally, I would like to recommend that Congress avoid two approaches in its 

drafting and construction of an on-orbit authorization regime 30: 

1. Avoid Listing Specific Activities that Require Authorization or Giving Blanket 

Statutory Authorizations to Certain Activities 

Constitutional Due Process and non-delegation principles do not require the Congress to list specific activities that require authorization.31 Policy reasons also argue 

against specific listing of activities that require authorization as it is hard to predict 

which activities will come to market first and non-listed activities will continue to 

fall in a regulatory gap with all its downsides.32 Blanket authorization for certain 

activities will also be difficult as it is often hard to say in advance with no context 

which activities by their very nature will comply with OST obligations because it 

often depends on how the activity is conducted. To take an example, lunar beer 

brewing is unlikely to cause any problems in terms of OST compliance or national 

security but it truly depends on how the activity is carried out—if the beer brewer 

plans to land its facility on-top of or just meters from an existing lunar facility of 

a foreign country this would raise concerns of harmful interference or if the lunar 

brewer was planning to use without permission another countries space rover 

present on the moon to distribute its product to lunar dwellers this would raise concerns of failure to respect ownership interests of foreign space objects. Carve outs 

for minor or modest or earthly-type activities by humans aboard stations could certainly be explored. For example, it is hard to envision the daily human activity (e.g., 

brushing teeth) within a space object or facility raising OST or national security 

concerns or interference concerns with a another space object and thus that could 

be a carve out. 

2. Avoid Relying on the Common Law of Torts or a Newly Created Federal Statutory 

Cause of Action for Unreasonable Interference 

The court system will be ill-suited to define the specifics of what harmful or unreasonable interference is in the context of outer space activities whether it is between two U.S. companies or a U.S. company and foreign company. The Executive 

Branch in consultation with industry (in the cases involving two U.S. companies) 

or in consultation with foreign governments (in the case of a U.S. company and foreign company’s activity potentially clashing) will be the best form of cooperation to 

work out what is harmful interference as cases arise and to take into account the 

economic, technology, and diplomatic considerations such issues raise. 

It has been an honor and a pleasure to be before this Subcommittee and I look 

forward to answering your questions. 

Senator CRUZ. Thank you, Mr. Schaefer. Thank you to each of 

the witnesses. 

There are a number of important issues that have been raised 

by this testimony. I want to start with the question of Article VI 

and the extent to which Article VI and the OST is self-executing. 

42 

And for those following this hearing who are not necessarily living in the minutia of treaty law, the notion of self-executing is a 

fairly straightforward notion. It is a question of whether treaty language is in and of itself binding domestic law that has force of law 

on private citizens within the United States that is enforceable judicially and that binds the government. If a treaty is not self-executing, Mr. Schaefer is right. That doesn’t mean the treaty has no 

force. It means its force is diplomatic and political in nature, that 

there is an international obligation, but it is not binding and enforceable law in United States courts. 

If I understand the testimony of the panel correctly, the first two 

witnesses, Mr. Dunstan and Ms. Montgomery, both testified that 

Article VI of the treaty is not self-executing, in your judgment. 

And, Mr. Schaefer, if I heard you correctly, you were a bit more agnostic on whether it was self-executing or not, although, at a minimum, you didn’t testify affirmatively that it was self-executing. Is 

that a fair assessment of the testimony? 

Mr. SCHAEFER. We can take as a given that the OST is non-selfexecuting. Again, I think people can come to different conclusions. 

That’s one of the reasons why the Medellin case itself was a sixthree opinion of the Supreme Court, right? But set that aside. Let’s 

even accept the view that OST Article VI is non-self-executing. All 

it means is the Executive Branch doesn’t have current domestic authority to look at OST obligations for new on-orbit activities. But, 

again, the international obligation remains. If the U.S. doesn’t do 

that, we will suffer international consequences. 

The Administration almost implicitly admitted it’s non-self-executing because they asked the Congress to enact legislation. I 

should add even if it’s self-executing, it still wouldn’t matter because there would be a great need for the Congress to enact an authorization regime anyway. We don’t want to just look at OST compliance, these minimally burdensome rules of the OST when authorizing an activity. We also want to look and see whether an applicant is interfering with an existing U.S. licensee’s activities. We 

want to look and see whether an applicant is interfering with an 

existing U.S. Government activity, particularly a critical national 

security asset. 

So there are a number of factors Congress would want to have 

an Executive Branch agency look at anyway. There’s a need to act 

separate and aside from this question of self-execution or non-selfexecution. 

Senator CRUZ. And I would note, going even a little bit further 

than you did, that I think the Executive certainly has the authority 

to recognize international law obligations and to make discretionary decisions consistent with those obligations, even if a particular treaty is not self-executing. What the Executive cannot do 

is violate United States law. Medellin v. Texas, which each of the 

witnesses has discussed, is a case I know very well because I argued and won the case on behalf of the state of Texas. So I spent 

many, many hundreds of hours deeply immersed in Medellin v. 

Texas. 

It is interesting in the discussion here, in that each of the witnesses also, if I understood you correctly—none of you are advocating reopening the Outer Space Treaty for renegotiation, and all 

43 

three of you are arguing that consistent with the treaty language, 

it is possible to have a light-touch regulatory regime. Or, I think, 

Mr. Schaefer, you used the permissionless regulatory regime. 

Is that accurate, and if so, should Congress legislate a framework 

for commercial activity in space and incentivizing enhanced commercial activity in space, and what should that framework look like 

if we were to legislate in that direction? 

Mr. DUNSTAN. I’ll kick off, Mr. Chairman. I think the important 

thing to understand about Article VI is there are two notions that 

are contained in Article VI, the first of which is that nations are 

responsible and liable for the activities. So, really, how the United 

States chooses to authorize and supervise is a matter of risk assessment for the U.S. Government. How much risk are we willing, 

as a government, to allow, and, therefore, how much of a regulatory regime do we want to pile on? 

So it is this sort of risk versus reward, and I can tell you from 

my experience in private practice, if the regulations become so burdensome, all of this stuff can easily go offshore. We saw that with 

our satellite construction industry after the implementation of 

ITAR, and we could easily see it on this. I’ve already had clients 

who have looked at the existing regulatory regime and how expensive it is to get an FCC license, for example, and they’ve gone overseas to do this. So we must be cognizant of the fact that if we don’t 

get it right, we’re going to have flight of this technology and this 

industry abroad. 

Ms. MONTGOMERY. I think one of the important things to consider in contemplating a regulatory regime is to make sure that it 

is actually very narrowly tailored to only those things which are 

hazardous to others or could create interference so that we would 

avoid the pitfall proposed by the Section 108 report that came out 

of the previous administration where everything would require authorization and supervision. I think we should start by Federalizing Connecticut, if we want to take that route, and see how it 

works out. It’s a small state, and we could see if this is actually 

a feasible project. 

But that being said, I don’t think that the treaty does require 

any particular activity to be addressed or authorized even, and I 

think that mining is a perfect example of that. On the ground, mining is dangerous. There are landslides, toxic fumes, horrible issues 

for worker safety, cave-ins, environmental issues. In outer space, 

there’s no one else around, and if your robot is mining an asteroid 

where no one is going to get hurt, what is the purpose of government regulation? And if you don’t need the regulation, why do you 

need the authorization? 

I use the frivolous example of playing the harp on the Moon as 

something that clearly doesn’t require governmental oversight, and 

that goes to the point that you need to draw lines as to what requires oversight and what does not. So, clearly, lunar beer brewing 

might be dangerous—pressure vessels—I don’t know—gases. But it 

might not. And so before we start saying everything needs to be 

regulated or that Article VI requires the regulation of everything, 

Congress needs to go through its usual process of saying, ‘‘Is this 

something that is so hazardous or could cause such interference to 

others that it needs to be regulated?’’ And if it does, you should call 

44 

out, as we have in the past, launch needs regulation, reentry needs 

regulation, satellite interference needs regulation, but we shouldn’t 

say everything. 

Ms. SCHAEFER. Permissionless innovation is never totally pure in 

the sense of no regulation at all. But at its core, there’s a default 

presumption in favor of approval, and the Congress could certainly 

include a default presumption in favor of approval of these new 

space activities in an OST-compliant regime. They can also certainly limit the number of factors the Executive Branch can take 

into account: OST compliance, not interfering with existing U.S. 

commercial space activities, and not interfering with important 

U.S. Government existing activities and assets. The Congress can 

also give an agency that has promotion authority and experience 

with licensing and running an interagency process for space the 

lead over that process. 

I’ll also address, because it was brought up, planetary protection 

standards. There has been some talk that COSPAR standards, that 

were created in a science era of space, somehow now is what meets 

the definition of harmful contamination in OST Article IX. The 

U.S. State Department explicitly has rejected this view. COSPAR 

standards are not setting any minimum floor that commercial actors need to comply with. The Congress can actually have significant deference given to industry-created standards for those OST 

terms that have significant flexibility in their interpretation, like 

harmful contamination and like harmful interference. 

The last thing I’ll say is Ms. Montgomery mentioned that granting authority to authorize new on-orbit activities to the Executive 

Branch is akin to trying to federalize everything in Connecticut. 

It’s really not. The better analogy because space is a non-sovereignty zone, is that it’s really like telling U.S. citizens that travel 

to Antarctica, another non-sovereignty zone, the following: ‘‘Here 

are a few minimal criteria you have to follow to ensure we’re complying with our international obligations and that you’re not interfering with existing U.S. activities or U.S. Government activities 

down there.’’ That’s the appropriate analogy for what we’re trying 

to do in the space. 

Senator CRUZ. Thank you, Mr. Schaefer, and I’ll note the next 

Senator up, the Ranking Member, is the Senator from Massachusetts, who might well be in favor of federalizing Connecticut. 

[Laughter.] 

Senator MARKEY. I know there are some red states that believe 

they’ve already been federalized—— 

Senator CRUZ. Indeed. 

Senator MARKEY.—and that was the subject of the 2016 campaign. 

Give me your view as to what the reaction would be in Russia 

or China or India if the Senate legislated in the area of Article VI, 

if it put requirements on the books. What’s the reaction internationally if we do that? 

Mr. Schaefer? 

Mr. SCHAEFER. There are going to be some countries that oppose 

our interpretations of various OST provisions for matters of national interest, regardless of what we do. But I think when we comply with Article VI of the OST, we increase the number of countries 

45 

that we have credibility to lead toward the U.S.-inspired, commercially-friendly interpretations of the Treaty. 

And when we don’t comply with Article VI of the OST, what we 

do is we send some countries China and Russia’s way. China actually has been noticeably pretty quiet when it comes to asteroid 

mining and property rights but as a general matter we send countries their way if we do not respect our treaty obligations. We also 

have less credibility to insist those countries follow OST obligations. When a U.S. company is a first mover, if we don’t have as 

part of our criteria for authorizing commercial companies a look at 

whether they are causing harmful interference with a preexisting 

activity of other OST parties, then we won’t have the credibility to 

insist on those parties doing the same for us. 

Senator MARKEY. That’s always the issue for the first mover. 

There are fast followers, sometimes even faster followers. So you 

have to think through the consequences of that. 

Mr. Dunstan, what do you think? 

Mr. DUNSTAN. I think, again, as I testified, that the United 

States is in a unique position because of our constitutional historical background, because of the sort of notion that Americans are 

free to do what they want unless they are prohibited from doing 

it. By taking action here, the Congress, I think, can lead internationally as we have in other areas, as Congress did just a couple 

of years ago with the CSLCA in extracted resources. We led. Sure, 

there was a pushback from some in the international community, 

claiming that that was equal to an Article II appropriation violation, but yet many other countries are following suit. See what 

Luxembourg is doing. 

We certainly have led in tourists, suborbital tourists. The approach the United States has taken and directed the FAA in terms 

of that has been followed suit by other countries. We are—by being 

the first mover, we can be the leader, and I think that what Congress does here is going to be extremely important going forward, 

and I think, ultimately, we’ll be followed by the vast majority of 

other countries. 

Senator MARKEY. Mr. Schaefer, I heard you say in your testimony that you felt that there were lessons from the Internet that 

could be applied in outer space. Can you give me some details in 

that analogy that could help us to flesh out how we might proceed 

from here? 

Mr. SCHAEFER. Sure. Permissionless innovation is a concept. You 

don’t want to stifle innovators, people that are dealing with sophisticated technology, with overly burdensome regulation. Actually, a 

lot of the space entrepreneurs and Internet entrepreneurs are not 

real keen on hiring lawyers as their first people on board. 

Senator MARKEY. Shocking. 

Mr. SCHAEFER. They bring them on kind of last and reluctantly, 

right, and that’s great. We want the engineers set free, right? But 

with that said, permissionless innovation is rarely, if ever, pure. 

Rather it’s contextual. The space context is a little bit different 

than the Internet context because we do have an international 

agreement we’re a party to, the OST, that has an Article VI that 

says we have to authorize and supervise, and the ordinary meaning 

of the term, authorize, is give official permission to the activity. 

46 

The important point, though, is this Treaty obligation certainly 

doesn’t have to lead to overly burdensome regulation or an overly 

burdensome checklist that the Executive Branch would run 

through. 

But that is one contextual difference between outer space and 

the Internet. We have very little international law and treaties 

governing the cyber domain, unless you’re talking about use of 

force or criminal law issues. Then you can get into some treaties. 

But very little treaties other than that. In outer space, that’s one 

difference. 

The other difference is in outer space, it’s longer time horizons 

for investment, typically, although there are some new business 

models that shorten that time horizon. But in the Internet, it’s very 

quick, right? But when you have a long time horizon for investment 

such as with most space activities, you really do need more regulatory certainty. 

And what happens when you have this authorization gap, you’re 

creating domestic uncertainty with space businesses asking: Who 

do I go to to get authorization? Do I really need it? Are my investors still going to come on board? And then the international uncertainty of not complying with Article VI raises additional questions: 

Are foreign countries going to cut off access to foreign customers 

and to foreign partners? When you’re dealing with long time horizons, it’s really important to have that certainty and predictability, 

for sure. 

Senator MARKEY. Thank you. 

Thank you, Mr. Chairman. 

Senator CRUZ. Thank you. 

Senator Peters. 

STATEMENT OF HON. GARY PETERS, 

U.S. SENATOR FROM MICHIGAN 

Senator PETERS. Thank you, Mr. Chairman. 

And thank you to our panelists for your testimony here today. 

One issue that came up in another committee—I serve on the 

Armed Services Committee in dealing with space policy. One issue 

that came up of particular concern is the amount of space debris 

that now exists in orbit. I think I was reminded of a recent launch 

by India where there were 104 satellites, I believe, on one launch 

vehicle that—many of those are U.S. nano-satellites, but, nevertheless, an awful lot of stuff is going up there, into the tens of thousands to keep track of. And as you are well aware, this material 

is moving at 17,000-plus miles an hour and can cause a great deal 

of damage. 

Give me a sense of what you think—or should we put together 

some sort of legal framework to deal with this debris differently 

than we do now? Whoever. 

Ms. MONTGOMERY. There are existing regimes on the commercial 

side, regulatory regimes that address debris. The FCC and NOAA 

both have debris rules and require mitigation of the creation of debris. The FAA also has regulations that require that you power 

down your batteries and vent your upper stage so that there is no 

debris created. 

47 

The question is whether other things will require debris regulation, such as satellite servicing, perhaps. Those all have cameras 

and transmitters on them, and they could all, perhaps, be placed 

without any change in law under the existing regimes of the FCC 

and NOAA. So I think there’s something in place now. Whether 

more is required—— 

Senator PETERS. Is that sufficient, in your mind? 

Ms. MONTGOMERY. It sort of covers everything you can think of 

at the moment. So I do think it’s sufficient for the moment. 

Senator PETERS. Does everybody agree? 

Mr. DUNSTAN. Well, there are actually, potentially, five different 

government agencies that have their own separate—and they sit in 

five different sets of the Code of Federal Regulations. They’re all 

based on models and standards adopted by NASA years ago, but 

they’re all slightly different. So it’s actually possible to have a mission where you may have to have three or as many as four different orbital debris mitigation statements, and if one of the agencies disagrees or wants a change, then you have to loop all the way 

back through. 

So this is when I talk about sort of the cumbersome regulations, 

because they all sort of grew up generically in each of these stovepipes. A sort of consolidation of that authority, I think, would really be helpful to industry. And I would agree that there is enough 

on the books right now. As long as we enforce it and make sure 

that they abide by the debris mitigation standards, that’s really not 

a worry going forward. 

Senator PETERS. So if I understand both of you correctly, there’s 

enough out there already, but we need to harmonize, in your estimation. 

Mr. DUNSTAN. Yes, harmonization would be very nice. 

Senator PETERS. Mr. Schaefer? 

Mr. SCHAFER. One thing I would add—there’s a certain element 

of the scientific community that would like to see not just debris 

mitigation but actual active debris remediation. The mitigation 

guidelines internationally, that were inspired by the U.S. domestic 

guidelines originally, have certainly helped. But when you have incidents like the Iridium incident in 2009 or the Chinese ASAT test 

in 2007, those types of activities can basically erase a decade’s 

worth of beneficial mitigation activities. 

There is some thought for sustainability in space that you would 

want to actually remove some of the existing debris, and the problem becomes that many scientists would say the first objects to remove are the largest mass objects, and a lot of them are actually 

of Russian origin, and that gets us into the legal issues of ownership of space objects. Thus, there are some legal hurdles to work 

through in addition to technology to develop to proceed with active 

debris remediation. 

But in addition to the mitigation guidelines that are present 

internationally, and enforced by the U.S. through licensing criteria 

that Ms. Montgomery spoke of, the Congress, in a 2010 statute, 

called on the Executive Branch to start looking more into active debris remediation. 

Senator PETERS. And, finally, you mentioned, of course, the Russian debris and other debris from other countries that are now enVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00051 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\29998.TXT JACKIE
48 

gaged in active space programs. You’ve talked about the regulatory 

framework we have here in the United States. What’s your assessment of the framework, broadly, with other countries that are 

launching spacecraft into orbit in relation to the debris? 

Mr. DUNSTAN. I would say, generally, most countries are compliant unless it’s in their interest not to be. There was an ESA satellite not that long ago, Envisat, which had been launched a number of years ago, and they ultimately ran it dry. It’s almost half the 

size of this room. It’s one of the largest satellites ever. And rather 

than de-orbit it, which they should have, which the debris mitigation standards required, they just ran the thing dry. 

Their argument was, one, it was still producing scientifically important information; and, two, it was designed prior to when ESA 

had adopted orbital debris mitigation standards. So they went so 

far as to not say it wasn’t launched, but it was designed, and therefore, the orbital debris mitigation standards didn’t apply. There are 

many instances when countries in their own self-interest will either 

waive—and we do it ourselves from time to time. There are a number of Iridium satellites that have been—that the FCC has waived 

the requirement that they be de-orbited because they want to run 

them dry of fuel. So I think we have to be honest with ourselves 

and say we have these mitigation requirements and we need to 

stick to them even if it might not be in our own interest to do so. 

Senator PETERS. Thank you. 

Senator CRUZ. Senator Nelson. 

Senator NELSON. I would ask, how is the existing Outer Space 

Treaty regime beneficial to the U.S. space industry? And I would 

leave hanging for Colonel Melroy in the second panel: What are the 

benefits of the existing Outer Space Treaty regime for our commercial, civil, and national security space interests? 

Ms. MONTGOMERY. In the area of liability, it does create a certain 

amount of certainty because the treaty set out how a particular 

country is a launching state and therefore liable for any damage 

caused by activities that launch from the country, that the government of that country launches or procures, or using the facilities 

of that country. So a lot of that certainty is very useful for the commercial sector. It has been implemented domestically for the 

launch industry through the Commercial Space Launch Act, and 

that has proved to be a benefit for the commercial industry. 

Mr. DUNSTAN. I would add that one of the most important provisions of the Outer Space Treaty is the provision that states—that 

any object that is launched from the surface of the Earth is the 

property of the launching state and always will be the property of 

the launching state. So that makes it very clear from an international basis that nobody can come along and pluck off your satellite under international law. 

Now, the flip side, as Mr. Schaefer pointed out, when we’ve got 

all this junk, all this abandoned stuff up there, it still remains the 

property of, say, Russia, all these upper stages, and, unfortunately, 

we don’t have sort of concepts of maritime law where we could go 

in and just yank these things out. But it certainly gives confidence 

to an American company that if they launch a satellite, it will always remain theirs, and they can operate it so long as they abide 

by United States law. 

49 

Mr. SCHAEFER. So I think it’s a great question. We talked about 

minimally burdensome obligations in the OST for U.S. companies, 

but the reciprocal side, the other side, is that these obligations do 

benefit U.S. companies. Take, for example, OST Article II’s non-appropriation, non-sovereignty obligation. If some other country is a 

first mover realizing there’s going to be a couple of countries besides the United States that are possible first movers, we’re not 

going to have an entire U.S. industry blocked from that area of a 

celestial body, because there’s free access to all areas of celestial 

bodies. These obligations are certainly in our businesses’ interest. 

The fact that countries have to think about whether they’re causing 

potentially harmful interference with U.S. activities before they 

proceed is another example of a benefit. So there are protections 

in the OST that do provide more certainty for U.S. companies in 

terms of their business plans and ventures. 

Senator NELSON. Thanks, Mr. Chairman. 

Senator CRUZ. Thank you. 

Senator Hassan. 

STATEMENT OF HON. MAGGIE HASSAN, 

U.S. SENATOR FROM NEW HAMPSHIRE 

Senator HASSAN. Well, thank you, Mr. Chair, and thank you to 

the panelists. 

We’re obviously talking about the opportunities that space exploration presents for scientific discovery and advancing our knowledge here on Earth and creating new opportunities for our businesses to thrive. I’m really pleased that you all are here today and 

that the Committee has gathered to examine the U.S. Space Treaty 

and whether and how this legal framework can be improved upon 

or sustained. 

As Senator Cruz indicated, I also wanted to make sure that the 

testimony from Michael Listner was in the record. Mr. Listner happens to be not only a space expert and founder of the legal and policy consulting firm called Space Law and Policy Solutions, but he’s 

based in my home state of New Hampshire. So I have spent a little 

time looking at his testimony, and I think it reflects what we’ve 

been discussing, which is the fact that the decision about whether 

to withdraw from the Outer Space Treaty would be a very difficult 

one for us to make. There are obviously lots of considerations, most 

of which that I had on my mind you’ve all touched on. 

But I wanted to give you the opportunity just to help us think 

through, as we all assess these matters, how we should balance the 

interests of industry stakeholders for further exploration and advancement with our top priorities in national security. What should 

we be thinking about in terms of that balance? 

Mr. DUNSTAN. That, of course, is the difficult question. How do 

you balance—and I would say there are three balancing acts. 

There’s the commercial aspect, there’s the scientific aspect, and 

then there’s the national security aspect, and it’s a tough balance 

to do. 

I can just report, in terms of my experience, in what could potentially become a parallel mechanism, which was the ITAR, the 

International Traffic in Arms Regulations, and what we saw there 

was a regime which was non-transparent, which was non-appealVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00053 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\29998.TXT JACKIE
50 

able. It was essentially a black box. So whatever we do, that balancing, to the extent we can—we understand there are national security interests where we can’t always give you a reason, no. 

But we’ve got to have a regime that allows you to have a right 

of appeal, that has the right to get an answer, as opposed to the 

ITAR regime. It was just no, and you never found out why. So 

transparency in whatever Congress does, I think, is critical, and 

that will give, I think, the industry as much sort of certitude as it 

can get. 

Senator HASSAN. Thank you. 

Ms. Montgomery. 

Ms. MONTGOMERY. Yes. I think one of the problems—I agree 

with everything Mr. Dunstan said, just to start with. But, also, one 

of the solutions to that, as Congress considers drafting legislation, 

is to not just use—is to not use very vague language. There are lots 

of statutes in the space arena out there that just talk about national security. Well, there are lots and lots of things that that 

could mean, and, unfortunately, it can sometimes mean that the 

regulatory person in charge of figuring out if there’s a national security issue sits there somewhat paralyzed—what could I be missing? And then you get lots and lots of delay. 

So I think that if Congress clearly articulated the standards, for 

instance, we do not want anyone—and I’m just making this up— 

we do not want anyone transmitting pictures of my secret satellite 

back to Earth, and just make that a clear prohibition, then that 

would be very helpful, and so, of course, the National Security 

Agency might give you language a little bit more vague than what 

I just said, but perhaps not so vague that the non-transparent 

black box becomes the norm. 

Senator HASSAN. Thank you. 

Mr. Schaefer. 

Mr. SCHAEFER. I would just say there are some competing interests there, but sometimes not. There are some synergies, too, and, 

in fact, one of the things I recommended in my written testimony 

was that Congress actually declare that having U.S. companies be 

the leaders in these new space activities, at least the ones that are 

foreseeable, is actually in the national security interest of the U.S. 

To take a couple of examples, China controls 85 percent of the 

rare Earth minerals on Earth. If we have U.S. companies—and, 

again, it depends on whether there’s an ultimate business case for 

it—but if we have U.S. companies that are able to get access to 

those minerals on celestial bodies, then that can change the dynamics. It’s also in the U.S. national security interest for U.S. companies to be the first to do, and be the best performers at on-orbit 

satellite servicing. It requires rendezvous and proximity operations 

and it’s better to have that technology, or the most advanced forms 

of that technology, developed in the U.S. and performed by U.S. 

firms. 

I know in remote sensing, it seems to some like the tradeoffs are 

a little more stark. But in these new on-orbit activities, there are 

actually a lot of synergies, and I think Congress could actually so 

state in the law to limit that national security barrier to the commercial activities. 

51 

Senator HASSAN. Well, thank you, and thank you all for very 

thoughtful testimony. 

Senator CRUZ. Thank you. 

Let me ask another question that came up in some of the answers here. There were multiple references to satellites and space 

junk and property rights, and I want to ask the panel’s view on 

what should the legal regime be. Mr. Dunstan referenced maritime 

law, for example, encouraging salvage. Should we have a similar 

regime encouraging salvage in the removal of space junk? 

And a related question—Article II of the Outer Space Treaty says 

that outer space, including the Moon and other celestial bodies, is 

not subject to national appropriations by claims of sovereignty, by 

means of use or occupation, or by any other means. Is that prohibition consistent with our interest in encouraging robust investment 

in exploration and development of outer space? 

We had the last great frontier in America, settling the West. We 

had the Homestead Act, which provided an acute financial incentive for people to take the great risk of going and investing. Do we 

need, with respect to outer space, with respect to the Moon or 

Mars, the equivalent of 40 acres and a mule, you know, 40 miles 

and a lunar rover? What role should property rights play in space, 

either with satellites or with lunar settlements or settlements on 

Mars or otherwise? And I would open this to all the witnesses. 

Ms. MONTGOMERY. I think that there are two points on the property rights question, and I’ll leave salvage to someone else. But Article II does not prohibit commercial or private ownership of land, 

and I think that’s very clear. The fact of the matter is that property rights serve as a great incentive to investment. If you don’t 

have property rights, you cannot put up your land as collateral. 

You cannot get investors. There’s nothing to securitize your investors’ interests, and you yourself are hampered in your ability to 

plan if you don’t know that the property that you are using and, 

hopefully, going to be spending decades on is yours. 

So I do think that the United States should figure out a way to 

recognize property rights extra terrestrially, and I do think that 

the Outer Space Treaty allows that. I do believe there are a lot of 

people who disagree with my view, and I think that it is something 

that needs to be looked at very carefully and thought through, because the incentives are there for development if there are property 

rights. 

Mr. DUNSTAN. So I would disagree with Laura—the first time 

I’ve disagreed with her today—because I don’t think the Outer 

Space Treaty, as it is written, would allow for the United States 

to even recognize domestically that. 

But I would give you another analogy to the opening of the West, 

and that would be the fact that the United States retained title in 

what are now the reservations of the Native Americans, and yet 

you are able to go on and buy a mining lease or a drilling lease 

on those. Now, it’s cumbersome, but that’s because we put this bureaucracy on top of it. 

But people can go in and mine resources off of our Native American reservations and extract those resources and profit from them 

without actually owning the land on which they’re doing that. So 

I think in that way, an asteroid could be the same thing. You can’t 

52 

own the whole asteroid, but everything you take out of it becomes 

yours, and that’s what Congress recognized with the CSLCA in 

2015. 

Senator CRUZ. So let me press you a little bit on that, Mr. Dunstan. Two follow-ups. One, in your initial testimony, you did not 

advise renegotiating the OST. I want to ask how that’s consistent 

with the answer you gave; and, two, that the analogy of Indian territories—there, the United States—if you’re retaining title under 

Article II, the United States and other nations can’t make claims 

of sovereignty. So how is that—how do we reconcile that to 

incentivize serious investment? 

Mr. DUNSTAN. So the Native American analogy is the fact that 

the United States owns the land, not the tribe. So put the United 

States in this analogy at the sort of international level. So the tribe 

doesn’t own it, yet the tribe can enter into mining leases, which 

don’t convey a property right underneath it. So as the analogy said 

it, you don’t have to have underlying property rights to still extract 

resources from it. 

And, second, I think Article II is pretty clear that we can’t domestically recognize property rights. We would have to go in and 

renegotiate that treaty, and I think that’s a—— 

Senator CRUZ. But from whom would you obtain the lease? In 

your analogy, you have the United States, from whom you could obtain the lease. 

Mr. DUNSTAN. Right. 

Senator CRUZ. The international community—there is no entity 

from whom to obtain a lease. 

Mr. DUNSTAN. That’s correct. You just can go out and mine that 

asteroid. You just can’t own that asteroid. You can’t obtain a property right in the whole asteroid, only with what you extract from 

it. 

Senator CRUZ. And you’d say the same for the Moon and for 

Mars? 

Mr. DUNSTAN. Same for the Moon and for Mars, yes. 

Senator CRUZ. Mr. Schaefer. 

Mr. SCHAEFER. Well, on the question of salvage, maritime salvage doesn’t work for most space debris because most space debris 

is valueless, so there’s nothing to be saved from the peril, so to 

speak. There is a little used concept called ‘‘liability salvage’’ that 

has found some reflection in U.S. maritime law, where you’re saving the person from the liability they would face if their piece of 

junk hit something valuable. 

But given that it’s a fault-based standard of liability in space 

even liability salvage may be difficult to implement. Who’s at fault 

if a piece of debris hits an active satellite, the thing that can move 

or the thing that can’t move? And it might depend quite a bit on 

the facts. Was the debris created in opposition to the internationally recognized debris mitigation guidelines or not? Thus, establishing liability would be very fact specific. In short, liability salvage theoretically may have some application, but pure maritime 

salvage doesn’t work. 

On the property rights issue, obviously, under U.S. interpretation 

of OST as now recognized and codified by the Congress, U.S. space 

businesses have property rights in extracted resources. That’s 38 

53 

years, at least, of U.S. interpretation on the issue, now confirmed 

and codified by the Congress. 

In terms of cordoning off areas, it’s really the non-interference 

right that comes into play. It might be better to proceed on a caseby-case basis with adding flesh to the principle. We could get a situation of U.S. company versus U.S. company, both going for the 

same area of a celestial body, and needing to assess what a noninterference right encompasses. 

We could also have a U.S. company versus foreign country situation, and it’s probably best to leave the discretion in the Executive 

Branch’s hands, case-by-case, applying those basic guiding principles than trying to do a complete rewrite and upset of Article II 

of the OST, which I think very few countries would join. I think 

bilateralism, case-by-case, is probably the better way to go in the 

near and medium term at least. 

Senator CRUZ. Well, thank you to each of the witnesses. I think 

this was a very productive and educational panel. I will note that 

I’m looking forward to trying Ms. Montgomery’s Celestial Moon 

Beer if and when it is brewed. 

[Laughter.] 

Senator CRUZ. And with that, I want to thank each of the three 

witnesses in the first panel and welcome to come forward the second panel, which we will move immediately to as soon as you have 

a seat. 

I want to welcome the second panel now. We will have a total 

of four witnesses. The first is Dr. Bob Richards, who is a space entrepreneur and a futurist. He is Co-founder of Moon Express, Inc., 

a space transportation and lunar resources company located at 

Cape Canaveral, where he currently serves as President and CEO. 

Dr. Richards chairs the Space Commerce Committee of the Commercial Spaceflight Federation, serves on the Board of the Space 

Foundation, and is a Member of the International Institute of 

Space Law. 

Our second witness is Mr. Peter Marquez, who is the Vice President for Global Engagement at Planetary Resources, where he is 

responsible for working with governments around the world. Mr. 

Marquez has held positions in the Air Force, in the Office of the 

Secretary of Defense, working on national security space programs 

and special programs. After his time in the Pentagon, Mr. Marquez 

served on the National Security Council as the Director for Space 

Policy for President George W. Bush and also for President Barack 

Obama. 

Mr. Mike Gold is the Vice President of Washington Operations 

and Business Development at Space System Loral. Mr. Gold previously served for 13 years with Bigelow Aerospace, where he supported a variety of non-traditional space activities. Mr. Gold also 

serves as the chair of COMSTAC, which is the Federal advisory 

committee that provides advice and counsel to the Federal Aviation 

Administration’s Office of Commercial Space Transportation. 

And, finally, Colonel Pamela Melroy is a retired Air Force test 

pilot and NASA astronaut. Colonel Melroy is a veteran of three 

missions to the International Space Station and is one of two 

women to command the space shuttle. After leaving NASA, Colonel 

Melroy worked in industry and at the Federal Aviation AdministraVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00057 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\29998.TXT JACKIE
54 

tion’s Office of Commercial Space Transportation. Colonel Melroy 

recently left DARPA after serving 4 years as the Deputy Director 

of the Tactical Technology Office. Colonel Melroy is now owner and 

CEO of Melroy and Hollett Technology Partners. 

Welcome to each of you. 

Dr. Richards, you may begin. 

STATEMENT OF ROBERT (BOB) RICHARDS, FOUNDER AND 

CHIEF EXECUTIVE OFFICER, MOON EXPRESS, INC. 

Mr. RICHARDS. Thank you, Mr. Chairman, Ranking Member 

Markey. It’s an honor to be invited to speak with you today about 

reopening the American frontier and unleashing the innovative 

power of the U.S. commercial space industry as a driver of the Nation’s space economy and settlement. 

Our need to expand humanity into space is not in question. To 

consider otherwise would put an expiry date on the human species. 

What is in question is the way that we will expand into space and 

which nations will set the standards of freedom and endeavor and 

reward as we enter these new frontiers. As a country built on the 

foundations of first frontiers, the United States stands unique in 

all the world with the opportunity to focus the power of its entrepreneurial history and enterprising vision to open up the space 

frontier and in so doing create a peaceful, prosperous, and boundless future for all humanity. 

Today, I address you as the founder and CEO of Moon Express, 

a privately-funded commercial space company created to seek and 

unlock the resources of the Moon through a progressive series of 

commercial robotic missions, starting with our maiden voyage 

scheduled to launch late this year. Relevant to the subject of this 

hearing is that last year, after months of interagency consultations, 

Moon Express became the first commercial entity to receive formal 

U.S. Government approval to send a robotic spacecraft beyond traditional Earth orbit and to the Moon. This was, in fact, the first 

time in history that any government signatory to the Outer Space 

Treaty exercised its rights and obligations to formally authorize 

and supervise a commercial entity to fly beyond traditional Earth 

orbit and to the Moon. 

The framework we used for our mission approval was an interim 

patch that built on the existing payload review process of the Federal Aviation Administration Office of Commercial Space Transportation with a series of additional voluntary disclosures intended to 

help satisfy U.S. obligations under the OST. We worked independently with all stakeholder Federal agencies who, in turn, worked 

collaboratively and creatively to find a way to approve our ad hoc 

approach, even as Congress and the administration determined a 

more formal framework. 

Looking beyond our mission approval, which is an interim solution, we support a process that focuses on streamlining the regulatory framework, limits the government’s role to a light touch, promotes American innovation and investment, and satisfies our international obligations. In essence, we believe that a commercial space 

activity should enjoy deemed authorization, presumed authorization, unless there is a clearly evident or meaningful, demonstrable 

55 

impact on national security, U.S. obligations under international 

treaties, or harmful interference with others. 

The key to our survival as a species, in fact, the only key we hold 

in the long term, is to evolve into a multi-world species, harnessing 

the practically infinite energy and resources of space and easing 

the pressure on our home planet. Preservation of the Earth and our 

civilization is precisely the reason we need to expand our economic 

and societal sphere into space, beginning with the Moon and then 

beyond. 

But it’s not just about boldly going. It’s about boldly staying. It’s 

about moving the economic sphere of Earth outward in a way that 

uses the material wealth of space to solve the urgent problems we 

now face on Earth, to bring the poverty stricken segments of the 

world up to a decent standard of living without recourse to war or 

punitive action against those already in material comfort, to provide for a maturing civilization the basic energy vital to its survival 

through freedom of commerce in space. 

We are at the cusp of a magnificent adventure, an evolution of 

our species perhaps as significant as the evolution of life from 

ocean onto land. Our emergence from Earth into the ocean of space 

holds promise and opportunity, but also dangers of migrating conflict, and for the first time in human history, an opportunity to conquer new worlds without conquering each other. 

The United States has taken proactive measures to support its 

private sector and has interpreted the Outer Space Treaty in favorable ways to the Constitution and the founding principles of this 

country. While the Outer Space Treaty may appear antiquated in 

some ways, it is a remarkably visionary document with profound 

principles that have served the world well for decades. 

I believe time and energy is better spent in continuing to interpret the Outer Space Treaty in favor of international collaboration 

without constraining the rights, the benefits, or the freedoms of 

U.S. commercial enterprise. We aspire to the stars. Mars beckons 

as a second home for humanity. The Moon is our gateway. 

Thank you, Mr. Chairman, for the opportunity, and I welcome 

questions afterwards. 

[The prepared statement of Mr. Richards follows:] 

PREPARED STATEMENT OF ROBERT (BOB) RICHARDS, FOUNDER

AND CHIEF EXECUTIVE OFFICER, MOON EXPRESS, INC. 

Mr. Chairman, Senator Nelson, members of the Committee, 

It is an honor to be invited to speak with you today about reopening the American 

frontier and unleashing the innovative power of the U.S. commercial space industry 

as a driver of the Nation’s space economy and settlement. Although our lives are 

dominated with the everyday challenges of life on Earth and with each other, these 

matters are ultimately trivialized by the challenge of securing humanity’s future 

through our expansion into space, utilizing the practically infinite energy and resources of space, and ultimately becoming a multi-world species. 

Our need to expand humanity into space is not in question, to consider otherwise 

would put an expiry date on the human species. What is in question is the way we 

will expand into space, and which nations will set the standards of freedom of 

human endeavor and reward as we enter these new frontiers. As a country built 

on the foundations of Earth’s frontiers, the United States stands unique in all the 

world with the opportunity to focus the power of its entrepreneurial history and enterprising vision to open up the space frontier, and in so doing, create a peaceful, 

prosperous and boundless future for all humanity. 

56 

Personal Journey 

My personal journey has been vested in creating international institutions and enterprises necessary to create a peaceful and prosperous spacefaring civilization. As 

a student in the 1980s, I co-founded Students for the Exploration and Development 

of Space, today still the largest student-run global space organization; the Space 

Generation Foundation, whose follow-on Advisory Council works with the United 

Nations to inspire and enable global youth to pursue their dreams in space; and the 

International Space University, which since its founding in 1987 has instructed 

thousands of graduate level students from both our main campus in Strasbourg, 

France, and our Space Studies Programs hosted around the world. Many graduates 

of this program today are in positions of leadership in the global space arena. More 

recently in 2008, I co-founded Singularity University, which has become a hub of 

global entrepreneurial innovation from our campus in Silicon Valley, tackling some 

of the worlds grand challenges with exponential technologies. 

I have also had the honor of working with NASA on the successful delivery of a 

robotic spacecraft to the north pole of Mars, a scientific mission that added much 

to our understanding of the Red Planet, and with the U.S. Air Force on the demonstration of technologies in Earth orbit that enable new capabilities in autonomous 

rendezvous and proximity maneuvers. 

Today, I address you as Founder and CEO of Moon Express, a privately funded 

commercial space company created to seek and unlock the resources of the Moon 

through a progressive series of commercial robotic missions, starting with our maiden voyage scheduled to launch late this year. 

The Moon—Our Eighth Continent 

I look on the Moon as Earth’s eighth continent; a new world with a total land 

mass approximating North and South America combined. Thanks largely to the 

terabytes of data generated by the NASA’s Lunar Reconnaissance Orbiter, we know 

the Moon has vast resources, accumulated through billions of years of asteroid bombardment that enriched the Moon much the same way as Earth, except for one key 

difference: accessibility. Unlike Earth, these lunar resources are largely on or near 

the lunar surface, relatively accessible except for the challenging economics of retrieving them when all the energy to do so needs to come from the Earth’s surface. 

But this too has now changed . . . 

Perhaps one of the greatest practical discoveries of our generation is the presence 

of vast quantities of water on the Moon, verified by NASA in 2009. The discovery 

of water on the Moon is a game changer, not just for the economic viability of lunar 

resources, but for the economics of reaching Mars and other deep space destinations. 

Water is the oil of the solar system, and the Moon will become a way-station in 

the sky. With private sector interest emerging in economic activity outside of traditional Earth orbit, the question of how the U.S. will enable and protect its national 

interests and non-governmental players is now timely and serious. 

‘Mission Approval’ for the 1st Private Venture to the Moon 

To date, all spacecraft that have ventured beyond Earth orbit on pre-authorized 

missions have been government spacecraft, and therefore were de-facto compliant 

with the Outer Space Treaty’s (OST) Article VI requiring government authorization 

and supervision. The U.S. has always believed that the private sector would be a 

growing part of our national space enterprise, and U.S. negotiators of the OST insisted on recognition for non-governmental actors in space. In its ‘Mission Approval’ 

framework, Moon Express recognized the requirement to comply with the treaty’s 

framework as a U.S. company, and is honoring that commitment while pursuing a 

vital commercial role in our human space future. 

Following the welcome enactment of the Space Resource Exploration and Utilization Act of 2015, we weighed the risks of seeking funding from investors for the 

final development and maiden launch of our first spacecraft with one critical question unanswered: would the U.S. Government actually give us permission to fly? In 

early 2016, after visiting a number of Federal agencies involved in the interagency 

review of launch licenses, it became clear that although any of the agencies could 

potentially say ‘‘no’’, no one agency had the independent authority to say ‘‘yes’’. We 

needed certainty to attract further funding from our investors, within a timeline desired by our customers, so we began seeking an answer. 

In the absence of any prescribed process or clarity of regulatory authority, we proposed a ‘Mission Approval’ framework, intended as an interim ‘patch’, that built on 

the existing payload review process of the Federal Aviation Administration Office 

of Commercial Space Transportation (FAA/AST) with a series of additional ‘voluntary disclosures’ intended to help satisfy U.S. obligations under the OST. We 

worked independently with all stakeholder Federal agencies, who in turn worked 

57 

collaboratively and creatively to find a way to approve our ad hoc approach, even 

as Congress and the Administration determine a more formal framework. 

As a result of our initiative and the Federal agency efforts, on July 20th, 2016, 

Moon Express became the first commercial entity to receive formal U.S. Government 

approval to send a robotic spacecraft beyond traditional Earth orbit and to the 

Moon. This was in fact the first time in history that any government signatory to 

the Outer Space Treaty exercised its rights and obligations to formally authorize 

and supervise a commercial entity to fly a mission beyond Earth orbit. So let us be 

clear: for our ‘Mission Approval’, the United States government has more than complied with Article VI. But let’s also be clear that what we received was qualified 

as a ‘‘one-time only’’ authorization, because it was made clear to us that the positive 

determination does not extend to future missions by Moon Express or similar missions from other entities. We are therefore still contending with regulatory uncertainty for future missions. 

We can only be thankful for the efforts of the FAA’s Office of the Associate Administrator for Commercial Space Transportation, and in particular George Nield, 

Shana Dale and Laura Montgomery, who championed our ‘Mission Approval’ application through an enhanced payload review process. Aided in particular by the concerted interagency efforts of Tom Kalil and Ben Roberts at the White House Office 

of Science and Technology Policy, Brian Israel and Ken Hodgkins at the State Department, Robin Frank at NASA, Doug Loverro at the Department of Defense, and 

many others who worked with them or at other agencies, we were able to secure 

a consensus approval, communicated to us by the FAA Office of Commercial Space 

Transportation, so Moon Express could move forward with our mission plans. Equally as important, this approval allowed us to solidify our private financing which had 

been hampered by the uncertainty regarding Federal permission to undertake our 

mission. 

The Mission Approval as Precedent for a Future Regime 

In 1983 Congress began the long effort to craft and enact the Commercial Space 

Launch Act of 1984, which gave the Department of Transportation sufficient authority to become a one-stop shop for launch licensing. Three decades later, this committee helped write the Commercial Space Launch Competitiveness Act, which directed the previous administration to propose a long-term solution to authorizing 

and supervising commercial space ventures beyond launch, telecommunications, and 

remote sensing. 

The effort for our ‘Mission Approval’ came at a huge cost of company executives’ 

time and expense, triggered exhaustive interagency deliberations, and delayed our 

fundraising and our mission. We’re glad we were able to do this, but it wasn’t an 

easy path and we were never assured success. To some extent we believe our ‘Mission Approval’ framework was accepted because we were proposing a fairly simple, 

short-duration mission. Lacking any further Federal clarification of approval process, we plan to use our ‘Mission Approval’ framework again, and we need to be able 

to use it again soon, as we have follow-on lunar missions already in the works for 

2019 and 2020. We are hopeful that the Congress and Administration, in consultation with industry, can apply principles like those we based our approach on to craft 

a more permanent system for companies like us, and the many companies that are 

yet to be born who will join us in expanding U.S. commercial space activity to the 

Moon and beyond. 

Supporting a Regulatory Framework with Minimal Burden and Maximum 

Certainty 

We support a process that focuses and streamlines the regulatory framework, limits the government’s role to a light touch, promotes American innovation and investment, and satisfies our international obligations. We believe this could be accomplished with a ‘‘presumed authorization within predefined boundary conditions’’ approach to non-traditional commercial space activities beyond Earth orbit. 

In essence we believe that a commercial space activity should enjoy ‘‘deemed authorization’’ unless there is a clearly evident or meaningful demonstrable impact on 

national security, U.S. obligations under international treaties, or harmful interference with others. 

Our premise is that the U.S. Government should in principle enact laws that assure freedom of enterprise in space, making it illegal for the government to deny 

or restrict private sector space activity, provided the activity satisfies three fundamental axioms that should be the foundations of any U.S. policy governing non-traditional space missions in or beyond Earth orbit: 

(1) no meaningfully demonstrable negative impact on national security 

(2) no harmful interference with existing space infrastructure or activities 

58 

(3) does not breach U.S. obligations under international treaties 

And otherwise, whatever Federal body that is in charge of the application/registration has no legal right to object to it. In other words, it is ‘‘presumed authorized 

within predefined boundary conditions’’, and only if those boundary conditions are 

shown to be violated would the application go to an interagency ’secondary review’ 

cycle in which the onus would be on the government to prove that the boundary 

conditions are breached in order to deny the application/registration, accompanied 

by a proposed enabling solution, which then would be subject to revision, appeal, 

etc. We also suggest that a legally binding time-frame would be imposed on both 

the first and secondary reviews, after which the presumed authorization would prevail. 

Public-Private Partnerships 

One of the reasons it is vital for the U.S. Government to create policy clarity and 

streamline regulatory burdens for commercial lunar and other nontraditional space 

business ventures is because in almost every case, some Federal agency is likely to 

want to directly or indirectly purchase a space good or service from these companies. 

In our case, we have benefitted from many Space Act Agreements with NASA 

which allowed us to learn from the agency and jointly develop new capabilities 

based on historic ones. Most of our early Space Act Agreements with NASA involved 

us paying NASA for access to technologies and facilities, but that has evolved in recent years into the use of no-exchange of funds Space Act Agreements that involve 

mutual value. In particular, NASA’s Lunar Cargo Transportation and Landing by 

Soft Touchdown (Lunar CATALYST) program has provided us significant access to 

NASA technologies, facilities, and expertise that is accelerating our initial mission. 

The reason NASA is doing this is because they need less expensive ways to conduct 

robotic lunar exploration and seek to spur commercial cargo transportation capabilities to the surface of the Moon with competitively selected industry partners. 

Over the years NASA has funded many existing ‘‘orphan’’ payloads from U.S. scientists that need a ride into lunar orbit or to the surface. Recent U.S., Indian, Japanese, and Chinese missions to the Moon have only wetted the appetite of lunar scientists. Given NASA’s primary focus on Mars exploration, it is not likely that NASA 

will send another large dedicated spacecraft to the Moon, but it could purchase rides 

from commercial providers such as Moon Express. 

We are therefore particularly happy about recent announcements by NASA of potential interest in commercially-provided robotic systems for science and exploration 

investigations of the Moon. Extending the public-private partnership model of commercial transportation services beyond Earth orbit will enable new growth in U.S. 

industrial capacity and capability while introducing the economics of private sector 

competitive innovation to deep space and planetary exploration. 

As Moon Express’ capabilities grow, we can bring back samples from geologically 

interesting lunar sites. Eventually, as we grow to begin to harvest lunar water ice 

and turn it into liquid hydrogen and oxygen for propellant and commercial uses, one 

of the largest customers may be NASA’s human missions to Mars. If NASA (or another agency) wishes to accelerate a specific capability on our roadmap, then a public-private partnership such as that used so effectively on cargo resupply o the International Space Station could deliver results much sooner and cheaper than a traditional contracting approach. 

Public-private partnerships are much more fundamental to the U.S. Government’s 

goals in space than just serving as a more efficient procurement method. NASA’s 

organic law mandates that the agency ‘‘promote the fullest commercial use of space’’. 

The vision that Chairman Cruz has set for these hearings is one of the government 

opening the space frontier to commerce and settlement by private citizens. Therefore, whereas a traditional procurement may or may not develop technologies with 

some potential commercial application, a public-private partnership fosters the 

emergence of privately-owned, largely privately-capitalized space goods and services 

providers who can and will seek out new markets beyond government customers. 

That economic infrastructure which grows out from the government’s legal and regulatory framework and limited public sector investments is what promises our 

broader society a hopeful future as our Nation leads the expansion of humanity into 

space. 

Therefore, creating the right policy environment is vital to achieving the full strategic benefits of American leadership on the space frontier. Our nation’s entrepreneurs and engineers, students and scientists, teachers and tourists will follow 

NASA’s pioneering steps into the solar system carrying American civilization with 

them. 

59 

The U.S. Government needs to create a framework that allows and encourages 

U.S. enterprise to invest in utilizing these lunar resources, or other nations will do 

so. 

American Preference 

One concern that has emerged in America’s leadership on the space frontier is 

that NASA has typically tended to use international partnerships with other space 

agencies more than domestic public-private partnerships to carry out science missions. While Moon Express certainly supports the national security and foreign policy benefits to the U.S. from such cooperative scientific projects, it is important for 

policymakers to realize that these international efforts can preclude American commercial participation. 

For example, if NASA spends its dollars on helping another nation learn how to 

land a spacecraft on the Moon, including the provision of hardware and launch services for the mission, instead of buying a ride from a commercial provider, then it 

is arguably subsidizing the creation of a foreign capability, while not utilizing a nascent or extent domestic commercial service. This choice is not a simple matter of 

‘‘domestic preference’’ versus international diplomatic benefits, but one of pursuing 

space goals that are more relevant to U.S. commercial providers via public-private 

partnerships, while more advanced or purely scientific projects can be internationalized. 

The Big Picture 

So far, modern humans have been resident on Earth for a few thousandths of a 

percent of our planet’s lifetime; a microscopic sliver of planetary history. Civilization 

as we know it has been around a 100 times less than that. In the last few frames 

of our planetary cinema, barely a subliminal flicker, the first artifacts of a technological civilization have left the atmosphere and can be found on our neighboring 

worlds. Some farther than that. If the story of humanity ended tomorrow, by natural or self-inflicted calamity, these extraterrestrial human artifacts might be the 

only remaining evidence that there was an emergent spacefaring species on the 

third rock from the Sun. 

The key to our survival as a species, in fact the only key we hold in the long term, 

is to evolve into a multi-world species, harnessing the practically infinite energy and 

resources of space and easing the pressure on our planet. 

Space is vast, and if we lived on a planet isolated like an island in an empty 

ocean, it would be very hard to develop space resources. But luckily, we are an archipelago with a sister world containing resources we can utilize. The Moon; our 

eighth continent, rich in resources, the gateway to the solar system, is also the gateway to our future. 

Preservation of the Earth and our civilization is precisely the reason we need to 

expand our economic and societal sphere into space, beginning with the Moon and 

then beyond. 

Sixty years ago we began our journey as a spacefaring species. We need to get 

a toe-hold back on the Moon, and this time not let go. Moon Express is dedicated 

to exploring and unlocking the resources of the Moon for the benefit of humanity. 

We’re undertaking this goal with private investment, not on the backs of the taxpayer. The risk is ours. The rewards will become available to everyone. We will conduct ourselves responsibly and with respect to national and international laws. We 

will avidly support science and exploration of the Moon as we seek water and minerals. But we’re going. And we’re thrilled to have the laws of the United States protecting our activities and backing our efforts to find new resources that could one 

day help the economies of planet Earth and secure our future in space. 

It’s not just about boldly going; it’s about boldly staying. It’s about moving the 

economic sphere of Earth outward in a way that uses the material wealth of space 

to solve the urgent problems we now face on Earth: to bring the poverty-stricken 

segments of the world up to a decent living standard, without recourse to war or 

punitive action against those already in material comfort; to provide for a maturing 

civilization the basic energy vital to its survival . . . through freedom of commerce 

in space. 

We are at the cusp of a magnificent adventure, an evolution of our species perhaps as significant as the evolution of life from the oceans onto land. Our emergence 

from Earth into space holds promise and opportunity, but also dangers of migrating 

conflict, and for the first time in human history, an opportunity to conquer a new 

world without conquering each other. 

The United States has taken proactive measures to support its private sector and 

has interpreted the Outer Space Treaty in favorable ways to the Constitution and 

founding principles. While the Outer Space Treaty may appear antiquated in some 

60 

ways, it is a remarkably visionary document with profound principles that have 

served the world well for decades. I believe time and energy is better spent in continuing to interpret the Outer Space Treaty in favor of international collaboration 

without constraining the rights and benefits of the freedom of U.S. commercial enterprise in space. 

We aspire to the stars. Mars beckons as a second home for humanity. The Moon 

is our gateway. 

Thank you for your time and the opportunity to present this testimony. 

Senator CRUZ. Thank you, Dr. Richards, and I appreciated your 

invocation of the mission statement to boldly go where no one has 

gone before, or perhaps the most famous split infinitive in all of 

history. 

[Laughter.] 

Senator CRUZ. Mr. Marquez. 

STATEMENT OF PETER MARQUEZ, VICE PRESIDENT FOR 

GLOBAL ENGAGEMENT, PLANETARY RESOURCES 

Mr. MARQUEZ. Chairman Cruz, Ranking Member Markey, thank 

you very much for the opportunity to come here today and talk 

about the Outer Space Treaty. I especially want to thank you and 

your staff also for the 2015 passage of the CSLCA. It was a tremendous event for this community, so thank you. 

I come here today representing a multinational asteroid mining 

company, Planetary Resources. We exist to extract and utilize resources from asteroids that are needed for humanity to create a 

truly universal space economy, have a permanent presence in the 

solar system, and increase the quality of life for all people living 

on Earth. 

We’ll harvest water from asteroids to be used as fuel for spacecraft and satellites, as life support for a space workforce, as radiation shielding, and to grow food. We’ll extract metal, which will, 

in turn, be 3-D printed so that we can construct nearly anything 

in space or any component needed; and we’ll provide the fuel and 

raw materials needed for any long-term, sustainable, and scalable 

mission to the Moon, Mars, and beyond. In the long term, we will 

bring back extremely scarce resources, like platinum group metals, 

to the Earth to increase the quality of life for everybody. 

We’ll continue to build upon the great successes that we’ve had 

so far. In 2015, our company began the asteroid mining age when 

we launched our first technology demonstration satellite. In 2016, 

we used materials from a meteorite to 3-D print the first object 3- 

D printed from outer space material. We’ve built two follow-on satellites that will be launched soon, and in 2020, we will launch and 

operate the first ever private deep space mission. We will also conduct an unprecedented mission to visit, survey, and prospect several near-Earth asteroids. 

Our team that we have is an example of, I think, many of the 

commercial space companies here now. Our engineers helped design, build, and operate a variety of Mars missions to include all 

the recent landers and rovers. We have a staff that comes from a 

variety of industries, from mining to semiconductors to planetary 

science to agriculture to the automotive industry to the IT community and many more. And despite what Mr. Schaefer said, we do 

have a pretty good law and policy team on staff, too, coming from 

61 

the State Department, the United Nations, the White House, and 

the national security community. 

For Planetary Resources to accomplish this mission, we need stability and predictability. This nation has a history of not only supporting commercial space activities, but leading and implementing 

the international legal structure that created that stable and predictable space environment. 

During the early negotiations of what would become the Outer 

Space Treaty, the U.S. actually fought to include commercial space 

activities because they believed it would be important. On the other 

side of the argument was the Soviet Union, which sought to have 

those operations limited to governments only. If the U.S. had not 

promoted those principles early on, I would not be here, my fellow 

panelists would not be here, there would be no Blue Origin, there 

would be no Virgin Galactic, no XPrize, and none of the other hundreds of small businesses that support this community across the 

country. 

This U.S. national space policy was founded on these principles. 

Indeed, the principles from President Eisenhower on have become 

the foundation of our international legal environment and the 

Outer Space Treaty, principles that we as a nation have held since 

the dawn of the space age and that enabled the various space commercial capabilities that we have now. The treaty has proven to be 

a flexible foundation for those activities. Indeed, one of the keys to 

the treaty’s enduring relevance is that the framers did not attempt 

to regulate specific activities. To do so, or today, for that matter, 

would be a recipe for obsolescence. Instead, the treaty establishes 

foundational principles. 

There are now active discussions in the international community 

about how to interpret and apply the OST to these unprecedented 

activities. The U.S. comes to these negotiations from a position of 

strength. For one, the U.S. played a leading role in the treaty’s formation, as I said, and it is this unbroken consistency of the U.S.’s 

interpretation of the treaty and application of the treaty for more 

than 50 years and across the past 12 Presidential administrations 

that is key to our credibility in this process. 

For our company, the value of the international legal framework 

is clear. Without it, we’d be trying to operate in a reality without 

rules—chaos and anarchy. However, the treaty must be meaningful 

and responsive, and in order to do that, we will need the appropriately interpreted and implemented national legislation. As I 

mentioned before, the CSLCA is an excellent example of how to 

build upon the foundation of the Outer Space Treaty with national 

law. 

None of this is to say the treaty is perfect or that it’s complete 

or that Congress’ work is complete. We are 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. And as a brief aside, I would say that it’s worth noting that 

many of the principles and motivations espoused in the early U.S. 

negotiations and garnering support of the Outer Space Treaty were 

to protect national and international security. Again, in my previous occupations, I’d be remiss in not mentioning the purpose of 

many of these things. 

62 

My strong recommendation is that we continue to build upon the 

Outer Space Treaty with strong national legislation, and with 

strong national legislation and international collaboration, our commercial space industry will continue to thrive and innovate to 

broaden our horizons, add to our knowledge, and improve our way 

of living on Earth. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Marquez follows:] 

PREPARED STATEMENT PETER MARQUEZ, VICE PRESIDENT FOR GLOBAL ENGAGEMENT, 

PLANETARY RESOURCES

Chairman Cruz, Ranking Member Markey, and members of the Subcommittee, 

thank you for the opportunity to provide comments on the vital role of the Outer 

Space Treaty to our growing space industry. 

I represent a multi-national asteroid mining company. Planetary Resources exists 

to extract and utilize resources on asteroids that are needed for humanity to; create 

a truly universal space economy, have a permanent presence in the Solar System, 

and increase the quality of life for all people living on Earth. Planetary Resources 

began the age of asteroid mining in 2015 when we launched the first asteroid mining technology demonstration satellite. We have built two follow-on satellites that 

are currently awaiting launch. In 2020, we will launch and operate the first-ever 

private deep-space mission where we will also conduct a historic and unprecedented 

mission to visit, survey and prospect several near-Earth asteroids. 

What we do 

Our business is to provide resources for people and the products they will need 

in space. 

• We will provide fuel and raw materials that will be integral to any long-term, 

sustainable and scalable missions to the Moon, Mars, and beyond. 

• We will harvest water from asteroids to be used as fuel for spacecraft and satellites, life support for a space workforce, radiation shielding, and to grow food. 

• We will extract metal which will, in turn, be 3–D printed into nearly any structure or component needed in space. 

Our near-term initiatives are providing fuel to launch providers for refueling their 

rockets in space with liquid hydrogen and oxygen we extract from asteroids. The refueling of rockets in space allows for significant reductions in launch costs and increased payload capacity for missions to the Moon and Mars. For example, our analysis shows cases where refueling a rocket on a Mars mission can decrease the cost 

of launching a payload from roughly $40MM per metric ton down to $11MM per 

metric ton while simultaneously increasing the maximum payload capacity from 

about 3 metric tons to 26 metric tons. Long-term and permanent exploration is infeasible without space resource utilization. 

Longer-term, platinum group metals are also one of our key targets. They are extremely rare on Earth but in nearly limitless supply on asteroids. For example, a 

single 500-meter platinum rich asteroid contains 175 times the global annual output 

of platinum or 1.5 times the known global platinum reserves. Our activities will 

make these previous scarce resources ubiquitous and increase the quality of life for 

all humanity. 

The Context 

Less than a decade ago, asteroid mining was still relegated to science fiction novels or movies. In the span of the past few years we have been able to harness a 

confluence of technical development, increasing scientific knowledge, and reductions 

in costs to move asteroid mining from fiction to reality. But there is still much to 

learn and do. 

The position we find ourselves in today regarding asteroid mining is not much different than the situation our predecessors found themselves in over 50 years ago. 

Many of the technologies that would define the space age were still in development 

and there was uncertainty as to how space activities would evolve. The U.S. had 

a firm position that private activities would play a key role in the future of space. 

The Soviet Union, on the other hand, sought to have space operations limited to 

Governments. If the U.S. had not promoted commercial space activities in the 1960s 

I would not be here today, my fellow witnesses would not be here, there would be 

63 

no Blue Origin, no SpaceX, no Virgin Galactic, no XPrize, and none of the hundreds 

of small businesses that support our commercial space industry would exist. 

Today, we find ourselves in a time of opportunity. The breadth of space activities, 

and the services they provide to people in space and on Earth, is growing exponentially. This period of unprecedented space expansion is a product of the stability 

that we have had in space since the launch of Sputnik in 1957. Despite global tensions, space has remained a realm of peace and predictability. That stability, in no 

small part, has been assured by the tenets of the Outer Space Treaty. Through the 

development of a common agreement with the international community the 

foundational precepts of the Treaty have keep the space domain safe, stable and 

sustainable for 50 years. 

The Value of the Foundations of the Space Legal Regime 

For Planetary Resources to accomplish our mission, we need such stability and 

predictability, not only in space but also in the domestic and international legal 

landscapes. This Nation has a history of not only supporting commercial space activities but leading and implementing the international legal structure that allowed 

it to exist in the first place. 

The U.S. National Space Policy was founded on these legal principles. Indeed, 

every President since Eisenhower has espoused the same principles for space exploration and utilization which, in turn, became the foundation of our international 

legal environment and the Outer Space Treaty. 

Given its central role in assuring peace and stability in space, our success relies 

very much on the Outer Space Treaty. The consistent interpretation and application 

of the Treaty by the U.S. Government provides a predictable environment in which 

we can flourish. Since the dawn of the space age, as new technologies and capabilities have arisen, the Treaty has proven to be a flexible foundation for space activities. Indeed, one of the keys to the Treaty’s enduring relevance is that its framers 

did not attempt to regulate specific space activities. To do so then—or today, for that 

matter—would be a recipe for obsolescence. Instead, the Treaty establishes certain 

foundational principles, and a basic legal framework within which space activities 

have been addressed through dialogue among States and implementing legislation 

by national legislatures. 

Perhaps the most crucial dimension of the Outer Space Treaty for our company 

is the Treaty’s enabling framework for space resource utilization. At this moment 

in time, as Planetary Resources brings utilization of asteroid resources ever closer 

to humanity’s reach, there are active discussions in the international community 

about how to interpret and apply the Outer Space Treaty to these historic activities. 

The United States comes to these negotiations from a position of strength. For one, 

the U.S. Government played a leading role in the Treaty’s formation. Yet it is the 

unbroken consistency of the United States’ interpretation of the Treaty, over fifty 

years and across the past twelve Presidential administrations, that is the key to our 

credibility in this process. 

The Importance of Domestic Legislation in the Context of the OST 

For Planetary Resources, the value of the international legal framework for space 

is clear—without it we would be trying to operate in an anarchic reality. However, 

for that regime to be meaningful and responsive to the advancement and expansion 

of space technologies, its tenets must be appropriately interpreted and implemented 

by effective national legislation. 

Relevant to space resources, the United States has Title IV of the Commercial 

Space Launch and Competitiveness Act (CSLCA) which recognizes the legal right 

to own resources extracted from asteroids, in full accordance with international law. 

Planetary Resources strongly thanks the Senate, and specifically, this Committee’s 

Members and staff in developing and passing this law. 

The leadership of the U.S. Government, nationally and internationally, and the 

steadfast support to commercial space activities created technological advances that 

increased our scientific knowledge, economic prosperity, and international security. 

That support continues today as evidenced by this hearing today and the Committee’s continued strong interest in nurturing this industry that is critical to both national security and economic competiveness. 

The Space Resource Utilization Act of 2015 is an excellent example of the ways 

the Congress can support innovative, new commercial space activities by building 

atop the Outer Space Treaty’s basic foundation. We are confident that U.S. diplomats, strengthened by the United States’ unmatched consistency in interpreting 

the Treaty, will continue to engage with the international community and find common direction on the interpretation of the Treaty in a manner that promotes innovative, ground-breaking commercial space activities. 

64 

Conclusion 

Internationally, the 1967 Outer Space Treaty is the backbone of the stability and 

predictability of not only the legal landscape, but space operations themselves. Article VI ensures that all operators, public or private, from all countries, operate according to a common set of basic rules. This legal level playing field for all 

spacefarers is allowing new space industry to flourish across the globe. 

Planetary Resources is proud to be part of one of those new industries. Utilizing 

asteroid resources fundamentally changes our ability to operate in space. Here in 

the United States, our large, and growing team, spans five states in addition to our 

presence in the Grand-Duchy of Luxembourg. Our investors are from all corners of 

the globe and our customers are on Earth and in space. This is an exciting time. 

Space is a global endeavor with profound national-level implications. We consider 

that the two legal pillars of a stable international legal regime agreed to by all global players, the Outer Space Treaty, coupled with effective domestic legislation that 

can be responsive to technological advancements, as typified by the 2015 CSLCA 

will allow us to effectively prosper, and will allow others to operate and compete 

on a level playing field. 

None of this is to say that the Treaty is perfect in every way, or that the 

Congress’s work in enabling a robust and globally competitive commercial space sector is complete. We are concerned however, that opening up the Outer Space Treaty 

will leave our industry worse off and will, overall, be to the detriment of national 

and international security. 

We look forward to continued successful U.S. engagement with international partners to interpret and apply the Outer Space Treaty to evolving circumstances, and 

the continued support of the Congress in developing timely domestic legislation to 

support space technology developments. 

Our simple message is that our focus should continue to be building upon the 

foundation of the Outer Space Treaty, rather than putting that foundation at risk. 

I thank you Mr. Chairman. 

Senator CRUZ. Thank you, Mr. Marquez. 

Mr. Gold. 

STATEMENT OF MIKE GOLD, VICE PRESIDENT, 

WASHINGTON OPERATIONS AND BUSINESS DEVELOPMENT, 

SPACE SYSTEMS LORAL 

Mr. GOLD. Thank you Chairman Cruz, Ranking Member Markey, 

and the dedicated Subcommittee staff for this opportunity to discuss the Outer Space Treaty’s impact on American commerce and 

settlement in space. 

I serve as Vice President of Washington Operations and Business 

Development for Space Systems Loral, or SSL. SSL is America’s 

most prolific commercial satellite manufacturer. Over 80 satellites 

built by SSL are currently in orbit and providing coverage to the 

entire populated surface of the Earth. SSL is also a global leader 

in space-based robotics, advanced propulsion, as well as data extraction and analytics. 

There has never been a more exciting time to be in the space industry. Asteroid mining, space tourism, private sector space stations, and commercial lunar rovers are all transitioning from 

science fiction to reality. We are living in an age of wonders. 

Like every other space activity, satellite operations may be transformed by new ideas and technologies. For example, the operational lifetime of satellites is nearly always limited by their fuel 

supply. This can and will change. Via the Restore-L program, SSL 

and NASA are developing robotic LEO spacecraft that will rendezvous with and refuel satellites. If the Restore-L mission is successful, it could fundamentally alter the nature of satellite operations while providing the U.S. with a vital technological advantage. 

65 

Moreover, SSL was selected by DARPA to support the Robotic 

Servicing of Geosynchronous Satellites, or RSGS program. RSGS, 

an innovative public-private partnership between DARPA and SSL, 

will produce a robotic servicing vehicle that can repair satellites in 

orbit as well as replace or add new components to a satellite. Per 

DARPA’s participation in RSGS, satellite servicing would not only 

bolster job creation and enhance American competitiveness, but 

such capabilities will be critical for national security. 

During testimony before the Senate Select Committee on Intelligence earlier this month, Dan Coats, the Director of National Intelligence, stressed that China and Russia are developing directed 

energy weapons, missiles, and robotic spacecraft capable of disabling American satellites in both LEO and GEO. Restore-L, 

RSGS, and satellite servicing in general will substantially bolster 

the security and resiliency of America’s vital orbital assets, while 

supporting domestic high-tech job creation and commercial innovation. 

However, satellite servicing and all other forms of new space activities need funding, and what investors are looking for is a legal 

regime that offers certainty, transparency, and efficiency. Article 

VI of the Outer Space Treaty requires nations to provide authorization and continuing supervision of their private sector space activities. This Treaty obligation actually aligns with the desire of investors for regulatory certainty. Investors and insurers need to know 

that relevant Federal departments and agencies, particularly the 

Department of Defense, the Department of State, and NASA, will 

not object to their proposed activities. 

Unfortunately, there is no established process for the Federal 

Government to provide entrepreneurs with this regulatory reassurance. Currently, companies, including SSL, are bringing their innovative space activities to the FAA Office of Commercial Space 

Transportation, or FAA AST. The FAA AST conducts an interagency review and subsequently has provided companies with what 

is called a payload approval letter. 

The simplest, least bureaucratic, and most expeditious means of 

addressing not only Article VI, but providing entrepreneurs with 

the predictability that they desire is for Congress to direct the FAA 

AST to establish an enhanced payload review process that would 

leverage and formalize the work that the AST is already successfully conducting. Additionally, when such payload review approvals 

are issued, they should contain a proviso requiring that if substantive changes occur, the private sector applicant will update the 

FAA AST. This simple proviso, in conjunction with the enhanced 

payload review process, would be sufficient to meet Article VI’s authorization and continuing supervision requirement. 

Even with any Article VI concerns fully resolved, the Outer 

Space Treaty still contains a variety of clauses and provisions that 

are vague or challenging for private sector operations, such as Article II and Article XII. Despite these challenges, it would still be illadvised for the U.S. to withdraw from the Treaty or open it up to 

revisions. Although the Treaty is imperfect, due to its focus on 

principles instead of prescriptive requirements, it has largely stood 

the test of time. 

66 

The Treaty has provided a foundation that international space 

law and public and private sector activities depend upon. If the 

U.S. pulled out of the Treaty, it would create confusion and uncertainty, hindering new commercial developments as well as established private sector space activities. Moreover, opening up the 

Treaty to amendments would risk the international community inserting even more language that would run counter to U.S. interests. 

Instead, the Department of State in cooperation with the private 

sector should engage with likeminded countries, particularly 

launching states, to establish bilateral and multilateral understandings regarding aspects of the Treaty that require additional 

clarity and interpretation. Again, predictability, efficiency, and 

transparency are the key values necessary for a successful legal regime. If Congress can do its part and provide entrepreneurs with 

the regulatory certainty that they need, we can all start spending 

less time with lawyers and more time on launches. 

Thank you for this opportunity. 

[The prepared statement of Mr. Gold follows:] 

PREPARED STATEMENT OF MIKE GOLD, VICE PRESIDENT, WASHINGTON OPERATIONS

AND BUSINESS DEVELOPMENT, SPACE SYSTEMS LORAL

Thank you Chairman Cruz, Ranking Member Markey, distinguished members of 

the Subcommittee, as well as the Subcommittee’s dedicated and hardworking staff, 

for this opportunity to discuss the Treaty on Principles Governing the Activities of 

States in the Exploration and Use of Outer Space, including the Moon and Other 

Celestial Bodies, commonly referred to as the Outer Space Treaty (‘‘OST’’ or the 

‘‘Treaty’’). My name is Mike Gold and I am Vice President of Washington Operations 

and Business Development for Space Systems Loral (‘‘SSL’’). 

SSL is America’s most prolific commercial communications satellite manufacturer. 

Over eighty satellites built by SSL are currently in orbit providing services to the 

entire populated surface of the Earth. Billions of people depend upon satellites manufactured by SSL every day. Moreover, SSL is a trailblazer in space-based robotics, 

supporting a variety of innovative projects with both the National Aeronautics and 

Space Administration (‘‘NASA’’) and the Defense Advanced Research Projects Agency (‘‘DARPA’’). SSL is also a global leader in space-based propulsion, leveraging 

highly reliable and robust systems such as the 1300 bus, a proven workhorse, while 

advancing the state of the art with new solar electric propulsion technologies. Earth 

observation and other types of satellites are generating an ever-increasing volume 

of data that can be leveraged for national security, commerce, and science. SSL and 

its affiliated companies have decades of experience extracting useful information 

from data through advanced image and signal processing as well as change detection. SSL provides customers with complete end-to-end services from satellite manufacturing to data analysis. 

SSL employs thousands of engineers, scientists, and technicians across the country, and has been a leader in ‘commercial space’ over many decades. For SSL, and 

the American commercial space industry as a whole, to continue to survive and 

thrive, a regulatory environment that is conducive to innovation as well as private 

sector operations and growth is vital. The OST, which forms the foundation of global 

space law, addresses a wide variety of issues and activities. However, the most relevant portion of the Treaty, which requires immediate action from policymakers, relates to Article VI. 

I. ‘‘Continuing Supervision’’ Under Article VI of the Outer Space Treaty 

Article VI of the Outer Space Treaty states in relevant part: 

‘‘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.’’ (emphasis added) 

Authorization and continuing supervision for established commercial space activities, such as telecommunications or remote sensing, are currently conducted by, respectively, the Federal Communications Commission (‘‘FCC’’) and the National OceVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00070 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\29998.TXT JACKIE
67 

anic and Atmospheric Administration (‘‘NOAA’’). However, there is no established 

process for the United States Government (‘‘USG’’) to authorize or supervise new, 

innovative commercial space activities. 

There has never been a more exciting time to be in the commercial space world. 

Private sector space stations, space tourism, asteroid mining, and commercial lunar 

rovers are all transitioning from science fiction to reality. American entrepreneurs 

are leading the way into this new frontier, and we are still at the very beginning 

of what is certain to be an era of great change and progress. Like every other space 

activity, the satellite industry could be transformed by new technologies and concepts. Specifically, the introduction of robotic satellite servicing in low Earth orbit 

(‘‘LEO’’), as well as in geosynchronous orbit (‘‘GEO’’), may substantially alter the industry’s existing paradigm. 

A. The Importance of Satellite Servicing 

SSL is currently supporting two innovative satellite servicing activities, NASA’s 

Restore-L and DARPA’s Robotic Servicing of Geosynchronous Satellites (‘‘RSGS’’). 

The Restore-L mission is focused on a robotic spacecraft refueling Landsat-7 (a 

NASA remote sensing satellite). SSL satellites are built to last and their operational 

lifetimes are nearly always limited due to a lack of fuel. Via Restore-L, NASA and 

SSL will demonstrate the ability to overcome this challenge by delivering fuel to satellites, substantially extending their lifetimes. 

DARPA’s RSGS program will focus on repairing satellites as well as adding and 

replacing satellite components. Fixing a satellite that has failed to deploy properly 

would save American taxpayers hundreds of millions of dollars. Moreover, the ability to add and/or replace various components will substantially bolster satellite capabilities, ensuring that regardless of when a satellite is launched, it can still take 

advantage of new technologies. This ability to add components could also be used 

to attach payloads that will enable a satellite to protect itself from tampering or attacks. 

RSGS and Restore-L are complimentary activities, each focused on unique technological proficiencies, although both systems will be capable of conducting such operations as satellite inspection and refueling. However, RSGS and Restore-L will operate in two very different environments. Restore-L will be placed in a LEO Polar 

orbit where it will circle the Earth approximately fourteen times per day. RestoreL will use Tracking and Data Relay Satellite Systems (‘‘TDRSS’’) for communications and will serve as a testbed for advancing critical space-based robotics and automation to support future human spaceflight and robotic exploration missions. 

RSGS will operate in GEO, where it will orbit the Earth only once per day and will 

utilize ground-based communications systems. The primary objective of RSGS is to 

enhance the security and resiliency of military satellites while evolving the state of 

the art in defense-related robotics. 

Per DARPA’s support of RSGS, mastering satellite servicing is critical to national 

security. Earlier this month, Daniel Coats, Director of National Intelligence (‘‘DNI’’), 

made the following statements for the record to the Senate Select Committee on Intelligence. 

‘‘We assess that Russia and China perceive a need to offset any U.S. military 

advantage derived from military, civil, or commercial space systems and are increasingly considering attacks against satellite systems as part of their future 

warfare doctrine. Both will continue to pursue a full range of anti-satellite 

(ASAT) weapons as a means to reduce U.S. military effectiveness. In late 2015, 

China established a new service—the PLA Strategic Support Force—probably to 

improve oversight and command of Beijing’s growing military interests in space 

and cyberspace. . . . Some new Russian and Chinese ASAT weapons, including 

destructive systems, will probably complete development in the next several 

years. Russian military strategists likely view counterspace weapons as an integral part of broader aerospace defense rearmament and are very likely pursuing 

a diverse suite of capabilities to affect satellites in all orbital regimes. Russian 

lawmakers have promoted military pursuit of ASAT missiles to strike low-Earth 

orbiting satellites, and Russia is testing such a weapon for eventual deployment. A Russian official also acknowledged development of an aircraft-launched 

missile capable of destroying satellites in low-Earth orbit. Ten years after China 

intercepted one of its own satellites in low-Earth orbit, its ground-launched 

ASAT missiles might be nearing operational service within the PLA. Both countries are advancing directed energy weapons technologies for the purpose of 

fielding ASAT systems that could blind or damage sensitive space-based optical 

sensors. Russia is developing an airborne laser weapon for use against U.S. satellites. Russia and China continue to conduct sophisticated on-orbit satellite activities, such as rendezvous and proximity operations, at least some of which 

68 

are likely intended to test dual-use technologies with inherent counterspace 

functionality. For instance, space robotic technology research for satellite servicing and debris-removal might be used to damage satellites. Such missions will 

pose a particular challenge in the future, complicating the U.S. ability to characterize the space environment, decipher intent of space activity, and provide 

advance threat warning.’’ 

As described by the DNI, potential adversaries are actively developing weapons 

to attack satellites in ‘‘all orbital regimes’’ while perfecting their own space-based 

robotics, rendezvous, and proximity capabilities. The U.S. cannot leave its critical 

orbital assets vulnerable to attack and the U.S. Government should be sponsoring 

additional follow-on programs to RSGS and Restore-L. Numerous missions will be 

needed to successfully develop and implement holistic satellite servicing proficiencies, ensuring that vital national security and economic assets in both LEO and 

GEO are properly protected. 

Moreover, while satellite servicing capabilities are vital, they are only the first 

step on the road to even more exciting technological developments, such as the deployment of persistent platforms. Currently, roughly eighty percent of an average 

GEO telecommunications satellite is comprised of propulsion, power generation, radiators, redundant parts, and other subsystems that keep the satellite flying and 

healthy. Only twenty percent of the mass of most satellites conduct the revenue generating activity. 

We need to reverse this paradigm and reduce the amount of infrastructure that 

each satellite requires. The persistent platform concept accomplishes this by deploying a truss in space, similar to what was done with the International Space Station. 

However, instead of accommodating astronauts and habitats, this truss would contain power generation, thermal controls, propulsion systems, and connection points 

for a dozen or more ‘plug and play’ payloads. Robotic servicing systems developed 

via programs such as Restore-L and RSGS would deliver the payloads (that would 

support a wide variety of activities including communications, remote sensing, and 

space situational awareness) to the persistent platform for attachment. The payloads would share the platform’s propulsion, power, and other capabilities, removing 

the cost and need to construct, launch, and support these systems and subsystems 

for each individual payload. Additionally, when a payload becomes obsolete or fails, 

the robotic servicing craft will switch out the old payload with a new one, providing 

the ability to refresh technology in a way that is impossible today. This persistent 

platform architecture will dramatically lower the cost of orbital operations while enhancing capabilities. Space Systems Loral is currently investing millions of its own 

dollars to further develop this next-generation strategy, which will play an important role in transforming not only commercial space operations, but national security and scientific missions as well. 

B. The Challenge of Regulatory Uncertainty 

For satellite servicing, persistent platform, or any other technological advances to 

take place, funding is required. Investors that will finance such projects crave predictability, transparency, and efficiency. When a positive regulatory environment is 

aligned with technological growth, innovation flourishes. However, as described previously, there is no established USG process for providing authorization and continuing supervision of non-traditional space activities such as satellite servicing. 

This situation has already caused confusion and could ultimately lead to programmatic delays and forum shopping. Currently, the FAA Office of Commercial 

Space Transportation (‘‘FAA AST’’ or ‘‘AST’’) serves as the de facto Federal entity 

that companies have gone to for their innovative commercial activities. Bigelow 

Aerospace and, most recently, Moon Express, have leveraged the FAA AST’s payload 

review process to obtain reassurance that their proposed lunar operations would not 

conflict with USG interests or activities. Due to the lack of an established process, 

both companies combined their payload review applications with voluntary disclosures to relevant Federal agencies and departments such as NASA, and the Departments of Defense and State, to support and expedite the interagency process. Although I believe that both Bigelow Aerospace and Moon Express were ultimately 

satisfied with the end result, officials at the FAA AST as well as the Departments 

of Defense and State, have repeatedly voiced concerns that the current ad hoc process is untenable and may result in negative payload reviews if Congress does not 

provide additional direction to clarify jurisdiction and establish relevant procedures. 

Entrepreneurs pursuing daring new concepts have helped to revitalize the American aerospace sector and will carry this Nation into the future. However, innovative 

commercial space activities require funding. Internal and external investors, as well 

as insurers, need to know what, if any, regulatory risks a particular project will face 

before financing an initiative. Therefore, the lack of a defined process for non-tradiVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00072 Fmt 6633 Sfmt 6621 S:\GPO\DOCS\29998.TXT JACKIE
69 

tional space activities is anathema to investors and insurers alike. Non-traditional 

commercial space operations inherently involve many risks. Businesses and investors that are already embracing trailblazing activities should not be asked to also 

bear the added burden of regulatory uncertainty. The U.S.’s regulatory environment 

should encourage growth and investment, whereas the current lack of an established process creates yet another challenge for entrepreneurs to overcome. For example, the existing lack of defined deadlines, explicit areas for review, and transparency requirements all empower the bureaucracy while leaving companies with 

little to no recourse to gain the certainty they need to obtain funding and execute 

their business plans. Congress should take action with alacrity to address this challenge and remove a potentially problematic barrier to entry. 

C. Enhanced Payload Reviews 

As noted previously, the FAA AST already has the authority to conduct payload 

reviews. Despite the lack of an established process, the AST has successfully executed these reviews for non-traditional commercial space activities. The AST has a 

great deal of experience conducting interagency reviews in an effective and expeditious manner, and while no process is perfect, my professional experiences working 

with the AST has been overwhelmingly positive. Instead of creating new bureaucracies and needlessly spending additional taxpayer dollars, Congress should support 

a concept that was initially proposed by Congressman Jim Bridenstine, to simply 

expand the existing payload review process to include non-traditional space activities. This ‘enhanced’ payload review process represents the most expeditious, cost 

effective, and least disruptive strategy to address America’s Article VI obligations. 

Congress could direct the AST to augment payload reviews in this manner, while 

also establishing a presumption of approval, deadlines, and other forms of protection 

to support an efficient process. Again, the AST is essentially doing this work already 

and has demonstrated the ability to successfully execute a non-traditional interagency payload review. 

The enhanced payload review process would provide an elegant and effective 

means of addressing Article VI’s requirement for authorization and continuing supervision of non-traditional space activities. By providing a governmental review 

and approving a payload, the ‘authorization’ component of Article VI is clearly met. 

The ‘continuing supervision’ obligation could similarly be addressed in a relatively 

simple fashion by including a proviso in a payload review approval letter requiring 

that if the proposed non-traditional space activity substantially changes from what 

was described in the payload review application, an update must be provided to the 

AST. This simple, benign clause, would be sufficient to address Article VI’s continuing supervision requirement, and I believe that the relevant attorneys and policy leadership at the Department of State would agree with this contention. 

An enhanced payload review approval is especially helpful to entrepreneurs since, 

via the interagency process, the approval carries with it the support of both the Department of Defense and the Department of State. While NASA, the Department 

of Commerce, the FCC, and other agencies are also part of the payload review process, it is particularly important to have a mechanism for the Departments of Defense and State to be able to provide feedback. Companies need to know that their 

proposed activities will not interfere with Defense and/or Intelligence Community 

operations. Similarly, it is vital that a review process include an avenue for the Department of State to provide input relative to international treaty obligations. Ensuring that neither the Departments of Defense or State will object to a commercial 

space activity taking place is vital for entrepreneurs to obtain the regulatory certainty that they need to raise funds and execute innovative programs. 

Again, regulatory certainty is vital, and even if the U.S. were not a signatory to 

the OST, entrepreneurs would still need the enhanced payload review process to ensure that their operations could proceed without fear of objection from Defense, 

State, or other USG departments or entities. Moreover, the Enhanced Payload Review process provides a mechanism to de-conflict domestic private sector activities, 

ensuring that non-traditional commercial space operations can occur without fear of 

interfering with each other. 

The Enhanced Payload Review process also provides the private sector with protection against a more pernicious interpretation of the OST’s ‘continuing supervision’ requirement. In the realm of export control, USG supervision was often implemented in a counterproductive and even irrational manner. The Enhanced Payload Review process would establish a commonsense means of meeting U.S. obligations under Article VI, while also providing the private sector with the regulatory 

certainty that it needs regardless of any treaty obligations. 

70 

II. Problematic and Unclear Aspects of the Outer Space Treaty 

A. Article XII 

Article XII of the OST states that: 

‘‘All stations, installations, equipment and space vehicles on the Moon and other 

celestial bodies shall be open to representatives of other States Parties to the 

Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be 

held and that maximum precautions may be taken to assure safety and to avoid 

interference with normal operations in the facility to be visited.’’ 

It is likely that when the OST was drafted fifty years ago, private sector space 

stations, lunar facilities, and commercial transportation vehicles were not contemplated or even imagined. However, what was once science fiction is now becoming reality, and Article XII’s requirement that foreign representatives be allowed to 

visit such facilities or spacecraft represents an unreasonable and possibly illegal demand for the USG to make upon the private sector. As a matter of fact, if a private 

sector company complies with Article XII, such actions could violate domestic export 

control laws depending upon the nationality of the visiting foreign representative. 

Although the U.S. has and should continue to support the peaceful development of 

space and encourage international cooperation and comity, due to the development 

of non-governmental spacecraft and the potential for future private sector orbital 

and/or lunar facilities, the requirements of Article XII warrants attention. 

B. Unclear Aspects of the OST 

There are several aspects of the OST that remain vague and/or are open to interpretation. For example, Article I of the Outer Space Treaty states in relevant part 

that: 

‘‘The exploration and use of outer space, including the Moon and other celestial 

bodies, shall be carried out for the benefit and in the interests of all countries, 

irrespective of their degree of economic or scientific development, and shall be 

the province of all mankind.’’ 

Although nothing in the OST prohibits commercial activities, language such as 

this has been raised by some nations to justify calls for the mandatory sharing of 

any economic benefits gained by private sector entities via outer space operations. 

Conversely, the U.S. and many other nations would interpret this clause to support 

free access (which is referenced later in Article I) to all countries for the exploration 

and use of outer space. 

Additionally, Article II of the OST states that: 

‘‘Outer space, including the Moon and other celestial bodies, is not subject to 

national appropriation by claim of sovereignty, by means of use or occupation, 

or by any other means.’’ 

Some nations have interpreted this language to prevent the extraction and utilization of space resources by the private sector, or to create a global system of benefits 

distribution per the language cited previously in Article I. The U.S., and many other 

countries, do not share this interpretation of Article II and, per the Commercial 

Space Launch Competitiveness Act, contend that the utilization of extraterrestrial 

resources by the private sector does not conflict with Article II or any other aspect 

of the OST. During the most recent meeting of the United Nations Committee on 

the Peaceful Uses of Outer Space (‘‘COPUOS’’) Legal Subcommittee, the issue of asteroid mining and Article II were discussed at great length. Again, Article II does 

not prohibit or even limit asteroid mining or similar activities on other celestial bodies, but this debate and issue also warrants continued attention. 

III. The Benefits of the Outer Space Treaty and the Dangers of Revision 

The Outer Space Treaty provides the fundamental underpinnings for international space activities. As described previously, there are aspects of the Treaty 

that are imperfect and open to interpretation, but despite the passage of fifty years, 

the OST has generally withstood the test of time. The reason for this can be found 

in the name of the OST itself. Specifically, The OST is a ‘‘Treaty on Principles’’. The 

OST lays out general principles such as the prohibition of weapons of mass destruction, the prevention of one country interfering with another country’s space operations, and nation’s supervising non-governmental activities. The OST is not a proscriptive document and, in a manner that is similar to federalism in the U.S., the 

Treaty provides each nation with the freedom to meet its obligations in their own 

way. For example, Article VI does not dictate how countries should supervise private sector operations, it simply states that supervision should take place, and 

71 

leaves it to individual countries to adopt laws and regulations that best suit their 

own unique needs and circumstances. This inherent flexibility and adherence to 

simple, core principles, is why the OST has survived for fifty years and is as relevant today as it was in 1967. 

Again, investors, insurers, and the private sector in general need certainty and 

predictability. For a half century, the OST has provided a stable framework for global space operations that public and private organizations alike have come to depend 

upon. The U.S. dropping out of the OST would result in a period of great uncertainty and international confusion, hindering the development and growth of both 

new and mature commercial space activities. 

As described previously, there are certainly aspects of the OST that are in need 

of clarification. It is important for U.S. policymakers to vigorously engage in the dialogue surrounding Articles I, II, and XII, and I am grateful to the Subcommittee 

for raising the profile of these issues. However, opening up the OST to revisions 

would likely only result in more language being inserted into the Treaty that would 

run counter to U.S. interests. There are 84 nations that belong to the COPUOS, and 

many of them do not share the U.S.’s desire to bolster commercial space development. Therefore, opening up the OST would create additional uncertainty for public 

and private space operations while running the risk of new language being inserted 

into the Treaty that would hinder commercial space development. Alternatively, if 

the U.S. were to drop out of the OST, it would undermine international obligations 

that support American interests such as the prohibition on weapons of mass destruction in space. 

IV. Addressing Outer Space Treaty Issues Without Revising the Treaty 

In lieu of actually changing the language of the OST, the Department of State 

should meet with industry to identify aspects of the OST that need to be addressed. 

Subsequently, State, in conjunction with industry, can reach out to like-minded nations, focusing on launching states, to establish a consensus via bilateral and multilateral correspondence and agreements. This strategy would help to clarify and address any shortcomings of the OST, without running the risk of opening the Treaty 

up to modifications that would further hinder commercial development. 

The Department of State should be commended for aggressively reaching out to 

the private sector. As Chair of the Commercial Space Transportation Advisory Committee (‘‘COMSTAC’’, the Federal advisory committee to the FAA AST), I have 

joined the U.S. delegation during COPUOS sessions and have been consistently impressed with the leadership the Department of State has shown in vigorously defending private sector interests. Under the stewardship of Secretary of State Rex 

Tillerson, who of course has substantial experience in both international relations 

and exploring the development of new resources, I expect that the Department of 

State will continue to work closely with the private sector to grow domestic commercial space activities benefiting both the U.S. and the world. 

However, additional industry feedback is always helpful, and the Department of 

State may want to consider establishing a Federal Advisory Committee, similar to 

the COMSTAC, to provide the Department with independent input, guidance, and 

advice. Members of such an Advisory Committee could be nominated by the Director 

of the Office of Space and Advanced Technology for review and approval by the Secretary. The Department of State already actively consults with numerous companies 

and trade associations, and creating a Federal Advisory Committee would formalize 

this process, ensuring a continued strong and productive relationship between the 

Department and the commercial space sector. 

V. American Policy Leadership 

When the U.S. leads in space exploration and utilization, the world benefits. Furthermore, U.S. leadership should not be limited to technological advances, but must 

also include policy development. The U.S. has an opportunity to demonstrate how 

nations can address their Article VI obligations, establishing a model for other countries to follow, and I therefore urge the Subcommittee to address this issue with 

alacrity. Innovative space operations such as private sector space habitats, asteroid 

mining, commercial lunar rovers, and satellite servicing are all transitioning from 

dreams into reality. Yet, the question remains, where will these activities occur and 

which nations will benefit. Again, when a positive regulatory environment is aligned 

with technological growth, innovation flourishes. Countries such as the United Arab 

Emirates have already developed holistic national space laws that comply with the 

OST while empowering entrepreneurship. Similarly, Luxembourg has leaned forward and has not only developed laws that support asteroid mining, but is actually 

investing government dollars to fund such commercial endeavors. The U.S. should 

learn from the UAE, Luxembourg, and other nations to adopt a regulatory regime 

72 

that implements and improves upon global best practices. American entrepreneurs, 

investors, engineers, and scientists are doing their part to create a bold new future 

for our country in the final frontier. Now we need Congress to support aerospace 

innovation by establishing a regulatory regime that provides certainty, transparency, and efficiency. 

I appreciate this opportunity to testify before the Subcommittee and look forward 

to your questions. 

Senator CRUZ. Thank you, Mr. Gold. 

Colonel Melroy. 

STATEMENT OF PAMELA MELROY, U.S. AIR FORCE (RETIRED), 

AND FORMER ASTRONAUT 

Colonel MELROY. Thank you, Chairman Cruz, Ranking Member 

Markey, and your superb staff, for inviting me here today. It’s a 

privilege to be here to discuss this important topic. 

Today, I’d like to talk about satellite servicing. Satellite servicing 

is not new. As a NASA astronaut, I had the privilege of conducting 

and overseeing robotic activity on the space shuttle and during the 

construction of the International Space Station. To date, only the 

space shuttle, ISS, and the Hubble space telescope were designed 

to be serviced, and all of these activities occurred in low Earth 

orbit. 

From a commercial perspective, the high-value orbit is geosynchronous Earth orbit, GEO, home to hundreds of the most valuable commercial and national security satellites. These satellites 

are 36,000 kilometers from the surface of the Earth. If they experience any issues today, they cannot be repaired, losing valuable revenue or national security capability. GEO is a hugely impactful 

place to take the capability of servicing, and several companies 

have announced ambitions to develop those capabilities. 

Satellite servicing starts with what is called rendezvous and 

proximity operations, RPO. Two spacecraft begin thousands of kilometers from each other and use a powerful suite of sensors to perform precise navigation to converge their orbits within a centimeter 

of accuracy. In the most challenging cases, robotic operations will 

be required, nudging a solar array or aperture that failed to deploy, 

or even replacing a failed system on a satellite. 

These activities can spectacularly restore capability, but are potentially perilous to both the servicer and the client satellite. Improper actions or inadvertent error can generate orbital debris, 

which is a danger to all spacecraft. This potential for debris generation provides a clear connection to the Outer Space Treaty’s Article IX references to harmful contamination and harmful interference, which the U.S. Government is obligated to avoid. 

Given Article VI’s requirement for continuing supervision, 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. However, as has been mentioned by several today, should this oversight regime be too onerous, the initiative will simply go to other countries. Having other 

countries set norms around RPO that may not be based on a technical or safety basis could be very damaging to both national security and to our economic interests. 

At the FAA’s Office of Commercial Space Transportation, I 

learned that a simple regulatory change, even editorial, takes a 

73 

minimum of 2 years. A complex rule can take five or more years 

to achieve. This is a nightmare in the face of rapidly evolving technologies and business plans. 

However, I also saw the use of industry consensus standards. Industry standards allow companies to be an advocate for their innovative technologies and business plans. Standards can be updated 

much more easily and, long-term, they could be helpful in enabling 

regulations that are performance-based and not prescriptive. 

When I was at DARPA, I helped initiate a joint program with 

NASA called CONFERS, the Consortium for Execution of Rendezvous and Servicing Operations. The goal of the program is to 

fund a consortium to bring together technical experts across industry and government to develop consensus technical standards for 

rendezvous and servicing. These standards could provide a basis 

for evaluating compliance with the Outer Space Treaty by the U.S. 

Government and may prove a successful model for future oversight 

of other areas as well. 

A few other comments regarding that oversight. Today, most 

cameras in space are pointed down at the Earth, not at other satellites. Any oversight must consider the powerful suite of sensors 

carried by satellite servicers to accomplish RPO with respect to the 

protection of national security operations and proprietary commercial information. For national security, it’ll be critical to verify that 

a commercial satellite is, in fact, acting cooperatively when it approaches another satellite and is operating in a predictable way to 

prevent misunderstandings. 

Verification of RPO activities will likely be the most stressing 

case for space traffic management. A single window to industry for 

authorization and verification of servicing operations seems best. 

Thank you, Mr. Chairman, for the opportunity to discuss this important and exciting topic. 

[The prepared statement of Colonel Melroy follows:] 

PREPARED STATEMENT OF PAMELA A. MELROY, NASA ASTRONAUT, RETIRED

Thank you Chairman Cruz, Ranking Member Markey, distinguished members of 

the Subcommittee, and your superb staff for inviting me here today. It’s a privilege 

to be here to discuss this important topic and to be with eminent colleagues and 

friends who are as passionate as I am about commercial space. I am thrilled that 

this committee has taken on the important work of considering the Outer Space 

Treaty and appropriate oversight of commercial space activities in the Unites 

States. 

There are many exciting activities and proposals in commercial space. With respect to the Outer Space Treaty, I am deeply concerned that we would be opening 

a Pandora’s Box by attempting to change it. My concern is that the likely outcome 

would be a lack of consensus, resulting in no amendments. Instead, we will have 

a weakened dedication to the Principles of the Treaty and the sustainability of 

space. Great changes are occurring and many countries are developing capabilities 

that previously were the purview of only a few nation states. Our ability to compete 

both economically and technologically in space is crucial. These Principles form the 

basis for the dialog that we have with other countries about what is appropriate and 

what is not. Without them, the dialog becomes chaos. 

Today I would like to discuss a specific activity—satellite servicing. Satellite servicing itself is not new. As a NASA astronaut, I had the privilege of conducting and 

overseeing robotic activity on the Space Shuttle and the International Space Station 

(ISS) during its construction, and the opportunity to observe my colleagues conduct 

extraordinary work on the equally extraordinary Hubble Space Telescope. I saw 

first-hand the power of the capability to inspect, repair, and upgrade satellites. To 

date, only the space Shuttle, ISS, and Hubble have been designed to support being 

serviced, and all of these activities occurred in low earth orbit. Low earth orbit 

74 

(LEO) is conducive to tele-operation (think ‘‘joystick’’) of robotic arms by astronauts 

in space, who can observe out the window and use real-time video. In addition, 

ground operators have proven capable of performing robotics in virtually real time 

from the ground to LEO. Advances in technology now permit impressive levels of 

autonomy that are less reliant on the intense supervision of humans that can only 

occur in LEO. These advances in autonomous rendezvous and docking, and greater 

levels of autonomy in robotic task performance now provide the potential to push 

satellite inspection and repair beyond LEO. 

From a commercial perspective, the high value orbit is geosynchronous earth orbit 

(GEO), which is home to hundreds of the most valuable commercial and national 

security satellites. Commercial revenues from GEO satellites exceeded $110 billion 

in 2015, according to the Satellite Industries Association. These satellites reside 

36,000 kilometers from the surface of the earth; at present, if they experience any 

issues they cannot be repaired, losing valuable revenue and national security capability. GEO is a hugely impactful place to take the capability of servicing. And several companies have announced ambitions to develop these capabilities, either on 

their own or in public-private partnerships with the government. 

Let’s break down the term ‘‘satellite servicing’’ into the operations terms that best 

describe the kind of activities that actually occur during servicing. The first is getting close to the client satellite that you intend to service. This intentional bringing 

together of two objects in orbit is called, in space parlance, rendezvous and proximity operations (RPO). It begins with two spacecraft thousands of kilometers from 

each other and the orchestration of a suite of sensors to perform precise navigation 

to converge orbits to a specified location within a centimeter of accuracy on final 

docking to the client (should it be required). In the most challenging cases, some 

sort of robotic operations will be required—nudging a solar array or aperture that 

failed to deploy, grasping a fouled thermal blanket, even replacing a failed system 

on a satellite. 

These activities are massively impactful in restoring capability, but potentially 

perilous to both the servicer and the client satellite. The consequences for improper 

actions or inadvertent error during either RPO or robotics are not just the damage 

to one or both satellites, but more critically the generation of debris. This orbital 

debris can cause additional damage to the servicer or client, creating even more orbital debris, and it can float away and damage other spacecraft in the same or lower 

orbits. 

The safety issues associated with these space operations are not trivial—in fact 

I would argue that servicing is the activity most dangerous to space sustainability 

of any of the proposed commercial operations. NASA and national security operators 

have demonstrated the capability to safely perform rendezvous and proximity ops, 

and NASA has perfected and mastered space robotics operations during Hubble repairs and the construction of the ISS. As commercial servicing operations go into 

business, what assurance do we have of their safety? 

These operations are challenging, but the government and its contractors do have 

over fifty years of experience in this area. In fact, today commercial satellites are 

safely performing RPO and collaborative robotics with a government satellite. That’s 

thanks to NASA’s Commercial Cargo program, where industry has proven capable 

of maneuvering cargo vehicles in close proximity to the ISS, where they are grappled and docked by astronauts. NASA has proven that the safety and policy issues 

can successfully be addressed via the contract with the government and these commercial providers. The same companies providing services and performing RPO at 

ISS are also developing business to service commercial satellites. While we can expect technologies and best practices should transfer, when a commercial provider is 

servicing another commercial provider and no government experts are involved, how 

will the government be confident they will be adhered to? That is essence of what 

I want to talk about today. 

The potential for debris generation provides a clear connection to the Outer Space 

Treaty’s Article IX reference to ‘‘harmful contamination’’ and ‘‘harmful interference’’ 

which the U.S. Government is obligated to avoid. Given Article VI’s requirement for 

continuing supervision, I think that commercial-on-commercial satellite servicing operations must have some form of scrutiny by the Federal Government to protect the 

overall sustainability and safety of the space environment. The lack of clarity on 

regulatory oversight creates financial and regulatory risks for industry, and diplomatic risks for the U.S. Government. 

However, should this oversight regime be too onerous, the business advantage will 

simply go to other countries. Other nations will pursue this technology whether or 

not the U.S. does. Having other countries set norms in this area is potentially extremely damaging to both national security and to our economic interests. The U.S. 

75 

Government must provide support and clarity to enable these new businesses both 

for the benefit of our satellite systems and benefit for our economy. 

So what should be considered when planning oversight responsibilities? 

I’ll point out again that NASA and its commercial partners are operating just fine 

right now. Whatever solution is devised, it should not add new layers of oversight 

onto previously existing arrangements, or reduce any government agency’s authority 

and flexibility to accomplish their mission. 

From a governance perspective, there are significant national security implications to these activities. It will be extremely important to verify that operators are 

trained to prevent debris generation—that is obvious. But it’s also important to national security to verify that a commercial satellite is in fact acting cooperatively 

when it approaches another satellite, and is operating in a predictable way to prevent misunderstandings. In the long term, verification of proper behavior—and attribution of improper behavior—will also be necessary. Unfortunately, the ability to 

have real-time information about the space domain—all space objects, at all orbits, 

at all times—is a challenge that has yet to be overcome. Tracking and verification 

of RPO activities will likely be the most stressing case for space traffic management 

technical capabilities—far more difficult than predicting potential collisions with debris in slow-changing orbits. As discussions inside the government continue about 

who should be responsible for space traffic coordination, please consider that those 

activities will have to be closely coordinated with any servicing oversight. It seems 

best to consider having a single window to industry that oversees both the authorization and the verification of servicing activities. 

Another consideration is that national security satellites do not like having their 

picture taken. This is not shyness, but in fact needed protection of our capabilities 

and support for operational activities on the ground. Commercial satellite operators 

turn out to be just as concerned on this point. A competitive advantage may be 

gained by learning exactly what equipment a specific satellite is carrying and if 

there are any failures evident. Today most cameras in space are pointed down at 

the earth, not at other satellites. Any future regulator must consider the powerful 

suite of sensors that servicing satellites carry to accomplish RPO with respect to the 

protection of both national security operations and proprietary commercial information. 

In terms of what oversight should look like to industry, careful thought and caution is needed. At the FAA’s Office of Commercial Space Transportation, I learned 

that a simple regulatory change—even editorial—takes a minimum of two years to 

accomplish if you simply put the days required by the process end to end. A complex 

rule—even the revocation of a rule—can take five or more years to achieve. This 

is a nightmare in the face of rapidly evolving technologies and business plans. One 

process I observed at the FAA on the aviation side was the use of standards which 

the FAA scrutinized, then issued a statement to advise that compliance with the 

standard was adequate to meet the intent of corresponding simple, performancebased regulations. Standards can be updated much more easily and a relatively 

short process used to validate that they continue to meet the intent of the regulations. Standards can be tremendously helpful in enabling regulations that are performance-based, and not prescriptive. 

At this time, there is no single agency with clear authority to oversee all of these 

types of on-orbit activity. As has been described by others, the FAA has launch and 

entry oversight. The FCC has spectrum oversight. NOAA has oversight of remote 

sensing of the earth. But even if today, with a mighty penstroke Congress decided 

to issue such authority, none of these agencies yet has the resources—including 

operational experts in these areas—needed to perform oversight of specialized activities like RPO and robotics. It will take years to develop regulations, and these regulations may be outdated by the time they are passed. 

It is my assertion that industry consensus standards can fill in the gap and provide a basis for evaluating safety by future regulators when they do have this authority. Industry must be involved from the beginning and provide the advocacy for 

their innovative technologies and business plans. Industry consensus standards will 

allow an agency tasked with oversight to consider and nurture these needs, while 

still being mindful of best practices learned over decades of government servicing 

activities. 

It might appear that the wholesale transfer of NASA’s safe operating procedures 

and ‘‘flight rules’’ could solve the problem. However, these operating procedures are 

written with the specific design of the client satellite—in this case, ISS—in mind. 

The size of the solar arrays, and the desire not to spray them with the outflow from 

the thrusters of the approaching spacecraft, and similar constraints dictate the approach corridor, keep out zones, and safety gates. One example of the difference between a flight rule and a standard which applies to all vehicles is the concept of 

76 

a passively safe orbit. A passively safe orbit means that you have designed the approach using orbital mechanics that will allow the two spacecraft to pass by each 

other harmlessly with no collision. At some point you then initiate the final approach which will result in docking. Keeping that point as late as possible limits 

the amount of time that you are exposed to the risk of collision if there is a failure 

on either spacecraft or a loss of communications. The size of the client spacecraft 

dictates the distance at which you can continue to be passively safe. Therefore, a 

standard would not give a distance; rather, it might state that approaches should 

be passively safe until as late as practical. This is but one example of how government know-how can be translated into standards. NASA experts carry the vast store 

of knowledge we have about RPO in low earth orbit, and robotic servicing operations. Other experts around the government have also been involved in various 

RPO activities. Government experts must also be involved in the development of 

these standards. 

So if this model is such a paragon, why isn’t it in practice today in other areas 

of commercial space? The good news is that the advantages of industry consensus 

standards is well understood. The Commercial Space Transportation Advisory Committee (COMSTAC), the FACA committee advising the FAA is working on standards 

around a variety of areas that the FAA already has jurisdiction over. It was recently 

announced that ASTM International has formed a working group to develop a 

standards roadmap for commercial space. 

RPO and servicing are arguably a very small part of the range of commercial 

space activities, but a vital one, and require the attention of specialists. When I was 

at DARPA, I advocated for and helped initiate a joint program with NASA called 

CONFERS—Consortium for Execution of Rendezvous and Servicing Operations. The 

goal of the program is to fund the creation of an industry/government consortium 

to develop non-binding consensus technical standards for safe rendezvous and servicing operations. I emphasize technical, because it is not the intent for these standards to incorporate policy guidance or preferences for behavior, but physics and 

operational safety-based best practices. 

Often standards development is hindered by the lack of funding for administrative 

support; technical experts are willing to have discussions but there is less interest 

in the administrative tasks of writing everything down, tracking issues to be resolved, etc. If it’s no one’s ‘‘day job’’—much less full-time day job—the process can 

take many years. By funding an Executive Director and a standards organization 

to provide the persistent leadership to develop this special set of standards, CONFERS will ensure that the effort will more quickly produce those standards. I believe that this approach will enable the U.S. government to have a technical and 

safety basis for understanding servicing activities when oversight is eventually put 

into place. This approach may prove a successful model for future oversight of other 

areas as well under the Outer Space Treaty. 

Thank you for the opportunity to discuss this important and exciting topic with 

you, and I look forward to lending my technical expertise to the discussion. 

Senator CRUZ. Thank you, Colonel Melroy. 

Thank you to each of you for very helpful testimony. Let me start 

with a question that we asked the preceding panel as well to each 

of you, which is: Should this committee take up legislation to provide greater certainty and predictability and clear incentives for 

the private investment of resources in space, and, if so, what 

should the contours of that legislation, the contours of any such 

regulatory regime be, and to what extent does the Outer Space 

Treaty serve as a barrier to doing so? 

Mr. RICHARDS. Well, perhaps, Mr. Chairman, I could start. Having lived the dream and come up against the stark reality that we 

had a mission planned, we had investors invested, but didn’t have 

a way forward at the end of 2015. Not that the government—there 

was anybody that didn’t want to say yes. There was just no mechanism to do so. 

So we were able, through months and months of expensive and 

time-consuming effort, both on our company’s executive side and 

the great people throughout all the interagency Federal stakeholders, found a solution, but a temporary patch in this mission apVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00080 Fmt 6633 Sfmt 6601 S:\GPO\DOCS\29998.TXT JACKIE
77 

proval. However, the mission approval was—once it was given, it 

was made clear that it was a one time only thing for our one company, for our one mission, and although there would be a proactive 

desire to continue that type of support, there was no guarantee 

that it could be done again. 

So we need a certainty. Here we are, about to execute on our 

first lunar mission, planning further missions—and, Mr. Chairman, 

you mentioned those peaks of eternal light on the Moon. Those are, 

indeed, the destinations that we are looking at for our second mission, and we have yet to have a certainty of process in order to gain 

the Article VI authorization and supervision to go there. 

So I did recommend a light-touch regulatory environment that 

promotes certainty with a minimum of regulatory burden. Inaction 

or nothing is not enough. And we have found a way through existing protocols with a little bit more voluntary disclosure to find a 

way through. So perhaps that’s a data point for the models that 

will be helpful in the more permanent solutions that are found in 

the future. 

Senator CRUZ. And, Dr. Richards, let me follow up on your answer there. My understanding is that your mission approval from 

the FAA states, quote, ‘‘The FAA made a favorable payload determination for this particular mission. However, not all non-traditional space missions may lend themselves to favorable payload determinations under the payload review authority in 51 U.S.C. 

50904. Future missions may require additional authority to be provided to the FAA to ensure conformity with the Outer Space Treaty.’’ 

My question is: What impact did that statement have on Moon 

Express and the certainty you need to continue to receive funding 

from investors to facilitate future missions? 

Mr. RICHARDS. That letter was written on July 20 of 2016, which 

was a venerable date, of course, for that to happen. It was great 

news that the authority was given for that once. It was an indication that it was possible, but it was certainly not an indication of 

certainty for the future. 

We are moving forward with the belief that the United States 

will continue to find a way. These hearings and the conversations 

that are underway right now are giving us great hope that these 

things will happen. Our colleagues in other industries want to go 

to asteroids and want to go to Mars. We want to go to other destinations, too, and it’s going to start happening fast and frequently. 

So although we’re not there yet, I have confidence that these conversations and others will lead to a permanent solution that we can 

all live with and flourish with. 

Senator CRUZ. Do others have thoughts on this? 

Mr. GOLD. Senator Cruz, if I could—— 

Senator CRUZ. Sure. 

Mr. GOLD. The language that you just quoted is actually much 

more frightening for those coming afterward than it was for the 

company that received it, and we certainly fall into that category. 

This is not science fiction. This is not academic. These satellite 

servicing missions are happening, both RSGS and Restore-L, in 

LEO and GEO, both of which are critical orbital domains. Satellite 

78 

servicing is a race that we cannot afford to lose in America, whether it’s for national security, commerce, or both. 

Our experience is that we are in a state of relative confusion. We 

don’t know what agency will be responsible. You have already 

heard negative reactions to the status quo and what has occurred. 

We need certainty, because our investors want it, insurers want it. 

The private sector must have it, and we don’t have sufficient certainty now, which is why we implore you to take action. 

Now, that action should be based upon common sense, it should 

be balanced. Just to go back to the Connecticut analogy—— 

Senator CRUZ. Common sense. I’m sorry. This is Washington. 

[Laughter.] 

Mr. GOLD. I know. Hope springs eternal in a science fiction fan, 

Senator. 

We don’t want to see the Federalization of Connecticut, as described before. But there should be a speed limit. Now, I’ve been 

to Connecticut. They don’t abide by that, but, nonetheless, it’s helpful. 

I believe we should take the existing procss at the FAA AST and 

ensconce and formalize it. It’s working. I think both Dr. Richards 

and I had positive experiences with it. What we don’t want to see 

is whole new bureaucracies stood up, new requirements, new licenses, new processes. We have a system that is working. Let’s 

ensconce it. Let’s proceed. 

And relative to your question about the Outer Space Treaty, 

there is actually an alignment here between the private sector’s desire for certainty and the requirements of Article VI. By going the 

simple route and just creating the enhanced payload review process 

at the FAA AST, we can solve both at once. 

Part of the reason I’m so concerned about Article VI is not because of today. I think the Department of State and the Department of Defense have done a great job. But it’s because of tomorrow. No two words in the English language scare me more than 

‘‘continuing supervision,’’ particularly when it comes to the government. 

Per the example of export control, we saw the worst of what continuing supervision can mean. When we would travel to Russia, I 

would travel with a number of U.S. Government officials breathing 

down our necks, monitoring every word that we would say, and we 

had the pleasure of paying for the privilege, $150 per monitor per 

hour. We would joke with the Russians that the KGB may have 

spied on you back in the day, but at least they had the good courtesy to do it for free. 

[Laughter.] 

Mr. GOLD. So we need a regime that locks in this, dare I say it, 

common sense approach because if there’s some sort of crisis—and 

this is what happened with export control, there was an incident, 

and when that occurs, then you get bad policy. You get knee-jerk 

reactions. So let’s take this time now to create a system that benefits national security, benefits the private sector, and meets our Article VI obligations. 

Senator CRUZ. So let me ask two final questions. The first is: If 

there should be an agency in charge of implementing these rules, 

what agency should that be? 

79 

And the second question, I want to address specifically to Mr. 

Marquez, which is that Planetary Resources is establishing a European headquarters in Luxembourg to conduct research and development activities in support of commercial asteroid prospecting. I 

want to ask how does the competitiveness in the United States 

compare to Luxembourg and other jurisdictions, and what can we 

do to ensure that America remains the most competitive place in 

the world for commercial space entrepreneurs? Either or both of 

those questions. 

Mr. GOLD. I’ll take the first question and then turn the other 

over to Peter. Relative to the agency, please don’t make me go to 

any more agencies. I go to enough as it is. The FAA Office of Commercial Space Transportation has demonstrated that it’s capable, 

it’s willing, and it can be successful in running an interagency process, because, ultimately, it’s never going to be a single agency. 

We’re going to have to go to Defense. We’re going to have to go to 

the Department of State. What I need is a single belly button, a 

single door, an ombudsman to the rest of the Federal Government 

so that, like Dr. Richards, we don’t have to go to every single agency ourselves as a private sector entity. 

Via the enhanced payload review, the AST has proven it can talk 

to those other agencies, bring them together, and get through the 

process. So I would like a single front door for the government, and 

then for that agency to go to the other departments with interests 

and come back with a response. Again, I believe the most expeditious way to do that is to go through the FAA AST since they’re 

doing it already and I already have to go there. 

Senator CRUZ. Any different views on that question from Mr. 

Gold’s? 

Mr. MARQUEZ. I just have a few—I don’t want to say different, 

just more detail on it. One, I think, foundational item we need to 

do is in Article VI, it says authorize and continually supervise. Nobody in this room knows what that means. We need to work on 

what that means and what our obligations—as we interpret our obligations to be under authorized and continually supervised. 

Again, I agree with my colleagues here that regulation needs to 

be a light touch, even if it is regulation. I think something akin to 

even filing a flight plan is good enough. Again, I also agree that 

having a known front door and having that front door staffed and 

funded to review these types of activities, having the process and 

method known for what you’re going to be authorized and supervised known, that there’s an assumption of compliance with the 

treaty. None of us want to violate the treaty. We’re in this for business. We have no interest in making space an unpredictable and 

unsafe place to operate. 

The second—or the fourth element here is that it needs to be 

transparent, the process. We have to know what’s going on inside 

that process. And the final one, again, coming from the national security community, is as a company, I want to know—if I’m denied, 

I want an avenue for redress and appeal, to be able to change 

something that may be a national security threat so I can still do 

my operation, but do it in a way that is not an issue for national 

security. 

80 

To your second question, Senator, about competitiveness versus 

Luxembourg, our subsidiary in Luxembourg is taking advantage of 

a great opportunity in that we have access to engineers from 

around the world that we would not be able to have access to here 

in the United States. It gives us an opportunity to access all those 

people due to things that Mr. Gold is very well aware of on export 

control issues. 

The competitiveness, I would say, is that they have taken initiative to not only create an analog to Title IV of the recognition of 

the right to own resources that you obtain from objects in space, 

but they’ve taken the next step to put that structure in place that 

meets their Article VI obligations. So there is a certain level of certainty in operations to be conducted in Luxembourg. The Emirates 

is doing the same thing. I’ve actually heard positive language from 

the Chinese about trying to do the same thing. 

So this is a growing area where I think, competitively, this is no 

longer just a space race. This is a legal race. It’s a race to give surety and predictability to the commercial space industry. And we’re 

not looking to completely uproot and move to another place, but 

we’re taking advantage of the opportunities it gives us to get that 

wonderful staff that exists elsewhere in the world. 

Colonel MELROY. Mr. Chairman, I’d just like to reinforce, first of 

all—yes, this most definitely is a legal race with national security 

implications. So I’d like to pile on that statement. 

As far as who should be in charge of oversight, I think the most 

important thing is that right now, none of the agencies proposed 

have the resources to appropriately oversee some of these activities. 

They don’t have all the technical experts that are needed in these 

areas. They may have some. But I would like to say that AST has 

a very high concentration of space experts with a variety of backgrounds and expertise in this area, and it makes sense if you’re 

going to give responsibility and you have to find extra resources to 

start with where that dense population already exists. 

Senator CRUZ. Thank you. 

Senator Markey. 

Senator MARKEY. Thank you. 

So let’s go to what, briefly, each of you might think are standards 

that you think should be put in place domestically that then could 

be used as precedents for international standards that our competitors around the world would then understand that they would have 

to meet, because we were the leader? So let’s just talk about—if 

each of you could just give us a couple of standards that you’d like 

to see, if we did legislate, put on the books. 

Mr. RICHARDS. Sure. Well, I guess we can go in sequence. 

Senator MARKEY. Sure. 

Mr. RICHARDS. I mentioned maximum certainty with minimal 

regulatory burden. I mentioned a presumed or a deemed approval, 

and I think that’s an important concept. When we go to whatever 

agency is selected to adjudicate this, we’re not going as a commercial company asking permission. There should be a presumed right 

of commerce in space just like there’s a presumed right of commerce in aviation. But that doesn’t mean you don’t have to file a 

flight plan. 

81 

So being transparent about what each of us wants to do in space 

is important to make sure we’re not interfering with each other or 

somebody else, as Peter has said—— 

Senator MARKEY. So that should be a standard? 

Mr. RICHARDS. That should be a standard. 

Senator MARKEY. Another standard? 

Mr. RICHARDS. Right. So non-threatening to any national security interest, number one. 

Senator MARKEY. OK. Number one. 

Mr. RICHARDS. Number two is not abrogating or threatening any 

of our international obligations under treaty. Number three is not 

interfering with ourselves or any other foreign activity in space. 

Senator MARKEY. Thank you. 

Mr. Marquez, international standards that we should set here 

domestically that you think would be important to have internationally. 

Mr. MARQUEZ. Again, I’ll concur with my colleague from Moon 

Express. I think that the irreducible standard here is one of noninterference, of non-harmful interference, in making sure that 

whatever we approve to do here in the United States is not going 

to interfere with our own actions, the actions of our government, 

and the actions of our friends and allies who are also signatories 

to the Outer Space Treaty, and even those that are not signatories 

to the Outer Space Treaty. 

There are probably a few other technical things that would go 

into a specific review—— 

Senator MARKEY. Well, just give us a couple. 

Mr. MARQUEZ. I think the ability to show that you can maintain 

positive command and control over your satellite and the ability to 

communicate with it so that it won’t go awry and stray, those types 

of things. And then, again, like I said, filing a flight plan so that 

people know where you’re going and the purpose of your mission, 

you know, the transparency in what it is that you hope to achieve 

in your activity. 

Senator MARKEY. Mr. Gold? 

Mr. GOLD. I think you will hear a lot of repetition, but national 

security interests, international treaty obligations, and non-interference, domestic or foreign, should all be reviewed. I believe another aspect that we need to pay attention to is if an agency generates a negative response to an application, the answer shouldn’t 

be a simple ‘‘no’’, instead we need ‘‘yes, but’’ forcing an agency to 

explain to a company what it is that they need to do to try and 

get to yes, because just saying no really doesn’t leave a lot of room 

for innovation or growth, and I think that is a problem that we 

have seen occur during remote sensing commercial licensing. I believe if you just take those simple values and put it into a lighttouch, almost a registration-based regime, that it would function 

and function well. 

And per the race discussion, this is a race—— 

Senator MARKEY. And that’s all you would really expect from 

United Arab Emirates or from India? Is that what you’re saying— 

the same kind of standard? 

Mr. GOLD. Yes. I think UAE, in particular, has done an excellent 

job of establishing a common-sense approach that balances the 

82 

need for a secure environment and for non-interference, again, foreign and domestic, without being too heavy handed. Unfortunately, 

a lot of this doesn’t lend itself to blanket solutions. Many of these 

issues need to be addressed on a case-by-case basis, requiring a 

policy that is sufficiently broad and flexible to handle that, and I 

think if the U.S. leads and joins other countries like the UAE, et 

cetera, we can see this develop as an international standard. 

The last thing I would say is that, going back to the ITAR example, there can be crises or incidents that lead to bad policy and, 

currently, we are experiencing a smallsat revolution, with thousands of cubesats in orbit and many more to come. We just heard 

about the deployment with India of 100 or more cubesats in a single launch. That is why we need to get these rules in place in a 

manner that supports innovation, because we want that to occur, 

but balances it with the security of the environment in space. 

Senator MARKEY. Colonel Melroy, let’s deal with that question. 

India is launching, and they’re doing things that we’ve never done. 

So what standards do you want to have set here that then we 

would say, ‘‘Well, these are what we believe are legitimate standards, India, or other Middle Eastern countries. What are you doing 

to meet these minimal standards that we think should be in 

place?’’ What are those standards, from your perspective, and how 

would we then, if we established them, ensure that Middle Eastern 

countries, India, then met them so that there was a certain rule 

of the road for outer space going forward? 

Colonel MELROY. Thank you, sir. I think that’s a wonderful question. I have to say that we’ve heard some less than flattering 

things about lawyers here. But, in my opinion, we need to get the 

engineers and the lawyers together, because these need to be technically based. The truth is that everybody has preferences for how 

they want other people to operate their satellites to the benefit of 

their own country. But if you don’t have a basis, a safety or technical basis, that is actually going to generate mistrust, you know, 

‘‘Why do you want me to do it that way?’’ So it’s very, very important, I think, that we should use the universal language of physics. 

Space is a unique domain. It’s not intuitive the way it is to us 

here on the ground, in the maritime, and even the air domain. So 

really understanding the implications of what you’re doing—a great 

example of that is you might think it would be a standard to stay 

a certain distance away from any given satellite. However, that’s 

meaningless in low Earth orbit, as satellites might be passing each 

other in orbits that will never collide, ever, ever. On the other 

hand, they seem to be coming close to each other. So you really 

have to understand, actually, what’s going on. 

A better idea is that you have a passively safe orbit so that you 

won’t collide with any other satellite until, if you decide to do a 

rendezvous, at the very latest practical moment, which is usually 

guided by the physics of the client’s satellite. So those are the 

kinds of predictable behaviors that I think give us confidence that 

people actually have done the science behind what they’re doing, 

and they’re not going to collide with each other and generate debris. 

Senator MARKEY. OK. What is your training, Colonel? 

Colonel MELROY. An Air Force test pilot, sir. 

83 

Senator MARKEY. What was your major in college? 

Colonel MELROY. Physics. 

Senator MARKEY. I was wondering—physics. So you want us to 

abide by the rules of physics? 

[Laughter.] 

Senator MARKEY. There’s the rule of law and the rule of physics. 

Colonel MELROY. Exactly, exactly. I think they can be worked to 

be harmonized. 

Senator MARKEY. Right, and lawyers and physicists can learn 

from each other a little bit about how, then, to put that into a useable form. 

Colonel MELROY. Yes, Senator. Perfectly said. 

Senator MARKEY. Thank you. Thank you so much for your service to our country. 

Thank you, Mr. Chairman. 

Senator CRUZ. Thank you, Senator Markey, and I would note for 

any skeptics in the hearing room that for those who don’t believe 

in miracles, we’ve seen not one, but two witnesses on this panel defend lawyers. 

[Laughter.] 

Senator CRUZ. I suspect we may go many years in the Senate 

without that ever occurring again. 

With that, I want to thank each of the witnesses for participating 

in today’s hearing, both in the second panel and the first panel. I 

think it was a very educational and enlightening hearing. 

It is the intention of this committee to go forward with legislation, seeking to create a system that incentivizes the investment 

and maximizes the potential for exploration in space. So I would 

extend an invitation to each of our witnesses and to other interested players in this arena. We are in the process of a multi-part 

series of hearings to learn, to study, and, hopefully, to come to consensus about how to create the best system of rules to provide certainty and maximize investment. 

The hearing record for this hearing will remain open for 2 weeks. 

During that time, Senators are asked to submit any questions for 

the record, and upon receipt, the witnesses are requested to submit 

their written answers to the Committee as soon as possible. 

And with that, the hearing is now adjourned. 

[Whereupon, at 4:23 p.m., the hearing was adjourned.] 

(85) 

1 Composed of individuals and institutions of more than 40 countries elected on the basis of 

their contribution to space law, the IISL is sister organization of the International Astronautical 

Federation (IAF) and the International Academy of Astronautics (IAA). With special consultative 

status to the United Nations Economic and Social Committee (ECOSOC), the IISL is an officially recognized observer at the United Nations Committee on the Peaceful Uses of Outer Space 

(COPUOS) and of two subcommittees, the Scientific and Technical Subcommittee, and the Legal 

Subcommittee; see also www.iislweb.org. 2Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer 

Space, including the Moon and Other Celestial Bodies, G.A. Res. 2222 (XVII), U.N. Doc A/RES/ 

2222 (Dec.17, 1966), available at http://www.un-documents.net/a21r2222.htm. 

A P P E N D I X 

INTERNATIONAL INSTITUTE OF SPACE LAW

Paris—France, 24 May 2017 

To: U.S. Senate Committee on Commerce, Science, and Transportation 

Senator John Thune, Chairman 

Senator Bill Nelson, Ranking Member 

CC: U.S. Senate Subcommittee on Space, Science, and Competitiveness 

Senator Ted Cruz, Chairman 

Senator Edward Markey, Ranking Member 

Subject: Letter for the record for the hearing on ‘‘Reopening the American Frontier: 

Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space’’ 

Dear Chairman Thune and Ranking Member Nelson, 

Founded in 1960, the International Institute of Space Law (IISL) is an independent non-governmental organization dedicated to fostering the development of 

space law. The purpose of the IISL includes the promotion and further development 

of space law and the expansion of the rule of law in the exploration and use of outer 

space for peaceful purposes.1 As such, the IISL has a keen interest in the topics to 

be discussed at the hearing organized by your Subcommittee on May 23, 2017. We 

submit the following letter in support of the Subcommittee’s deliberations. 

1. Status of the Outer Space Treaty 

The Outer Space Treaty of 1967 was drafted and negotiated within the Committee 

on the Peaceful Uses of Outer Space (COPUOS), a body of the United Nations constituted in 1958 as subsidiary to the United Nations General Assembly. Meeting in 

New York and in Geneva, Switzerland, COPUOS and its Legal Subcommittee drafted the treaty in the mid-1960s amidst geopolitical tensions which threatened to spill 

over into outer space, a new realm of humankind’s exploration and use. The founders of the IISL participated in the drafting of this important instrument. 

Then comprised of 28 states, COPUOS adopted the draft text of the treaty in late 

1966, which was expedited to the United Nations General Assembly for inclusion 

in its Resolution 2222 (XXII) of December 17, 1966.2 Signing ceremonies were held 

in Moscow, London, and in Washington D.C. at the White House. The Outer Space 

Treaty entered into force on October 10, 1967. 

The Outer Space Treaty was quickly followed by a number of subsequent treaties 

on space, also negotiated and drafted within COPUOS with the direct involvement 

of IISL membership. These treaties clarified and expanded many of the major provisions of the Outer Space Treaty. The 1968 Astronaut Agreement expanded on Article V of the Outer Space Treaty. The 1972 Liability Convention expanded on Articles VI and VII of the Outer Space Treaty. The 1975 Registration Convention expanded on Article VIII of the Outer Space Treaty. 

86 

3 United Nations, Committee on the Peaceful Uses of Outer Space, Legal Subcommittee, Status of International Agreements relating to activities in outer space as at 1 January 2017, A/ 

AC.105/C.2/2017/CRP.7 (2017) available at http://www.unoosa.org/res/oosadoc/data/documents/2017/aac_105c_22017crp/aac_105c_22017crp_7_0_html/AC105_C2_2017_CRP07E.pdf. 4Space applications will figure prominently in the achievement of the United Nations Sustainable Development Goals for 2030. 

As of 2017, the Outer Space Treaty has 105 states which have ratified the treaty.3

These include all of the major and historical spacefaring states such as the US, Russia, China, India, Brazil, Japan, and all the Member States of the European Space 

Agency (ESA). New and emerging space powers also often sign the treaty as a way 

to solidify their arrival in the community of serious spacefaring states. Additionally, 

a further 25 states have signed the treaty, which expresses their intention to ratify 

it in the future, or at least not to take actions which violate the intentions of the 

treaty. 

2. Effects of the Outer Space Treaty 

The Outer Space Treaty is an instrument of guiding principles that have served 

all aspects of the space sector successfully since inception. First granting space freedoms to explore and use outer space for peaceful purposes and the benefit of all 

mankind, the treaty’s subsequent articles provide a framework denoting activities 

that are either permitted or prohibited in furtherance of those freedoms. Commercial space applications and activities have flourished in this legal environment. The 

framework relies upon responsible legislation promulgated at the national level by 

State Parties to the Treaty. The United States has shown leadership in this regard, 

enacting laws and regulations that are aligned with treaty obligations while constructively facilitating innovation. 

Many significant accomplishments have been achieved within the parameters of 

the Outer Space Treaty. Benefits directly accrue to the space sector and all State 

Parties. However, because of the far reach of space applications and their intrinsic 

role in improved quality of life,4 all of humankind benefits from responsible behaviour in space. Withdrawal from the treaty could invite a number of undesired outcomes, including inter alia far greater uncertainty to the thriving private sector, or 

withdrawal by other State Parties, or loss of credibility in the international space 

community, or worse. 

3. National Implementation of International Obligations 

Article VI of the Outer Space Treaty creates the international legal responsibility 

of states to ensure treaty compliance with regard to the activities of their governmental agencies and non-governmental entities in outer space. Further, the activities of its non-governmental entities trigger a State’s authorization and continuing 

supervision (‘‘shall require’’). This direct responsibility and liability for damage on 

the international plane for the activities of nongovernmental actors is absolutely 

unique in international law, and is the impetus for supervision on all nongovernmental actors in the space domain. Further, Article VI accountability has served the 

private sector, both in the United States and internationally, in providing a level 

of transparency, legal certainty, and responsibility in the development of space applications. The United States has maintained Article VI responsibility with the promulgation of a well-developed res of domestic law overseeing launches and re-entries, the telecommunications industry, and earth observation activities. 

4. Conclusion 

In conclusion, the International Institute of Space Law would like to recognize the 

Subcommittee’s serious inquiry into the appropriate level of legislation necessary to 

maintain treaty compliance in furtherance of the United States’ international responsibility while also fostering an environment of innovation. We further remind 

this Subcommittee of the lasting and fundamental importance of this foundational 

and visionary treaty governing the activities of States, and of the non-governmental 

actors they are responsible for, in the peaceful exploration and use of outer space. 

Respectfully, 

President of the International Institute of Space Law 

Prof. Dr. Kai-Uwe Schrogl (Germany) 

Vice-President of the International Institute of Space Law 

Prof. K.R. Sridhara Murthi (India) 

Treasurer of the International Institute of Space Law 

Prof. Dennis Burnett (United States) 

Executive Secretary of the International Institute of Space Law 

87 

Prof. Dr. Diane Howard (United States) 

Board of Directors of the International Institute of Space Law 

Prof. Dr. Setsuko Aoki (Japan) 

Prof. Dr. P.J. Blount (United States) 

Prof. Dr. Frans G. von der Dunk (Netherlands) 

Prof. Dr. Marco Ferrazzani (Italy) 

Prof. Dr. Steven Freeland (Australia) 

Prof. Joanne Irene Gabrynowicz (United States) 

Prof. Dr. Stephan Hobe (Germany) 

Prof. Dr. Mahulena Hofmann (Czech Republic) 

Ms. Corinne Jorgenson (United States) 

Dr. Martha Mejı ́a-Kaiser (Mexico/Germany) 

Prof. Sergio Marchisio (Italy) 

Ms. Elina Morozova (Russia) 

Prof. Dr. Lesley Jane Smith (United Kingdom 

Dr. Milton ‘Skip’ Smith (United States) 

Prof. Dr Maureen Williams (UK/Argentina) 

Prof. Zhenjun Zhang (China) 

LIFEBOAT FOUNDATION

Minden, NV, June 5, 2017 

Commerce, Science, and Transportation 

Committee Space, Science, and Competitiveness Subcommittee 

United States Senate 

Washington, DC. 

To: U.S. Senate Committee on Commerce, Science, and Transportation 

Senator John Thune, Chairman 

Senator Bill Nelson, Ranking Member 

CC: U.S. Senate Subcommittee on Space, Science, and Competitiveness 

The Honorable Senator Ted Cruz, Chairman 

The Honorable Senator Edward Markey, Ranking Member 

Subject: Letter for the Congressional Record from the Hearing: ‘‘Reopening the 

American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space’’ 

Mr. Chairman, Ranking Member Nelson, and Members of the Committee, 

STATEMENT FROM LIFEBOAT FOUNDATION

Extolling Global Leadership and New Space Opportunity 

The Lifeboat Foundation is a non-profit organization dedicated to encouraging scientific advancements while helping humanity survive existential risk. 

In June 2018 the UNISPACE+50 international conference will establish the 

Fourth International Dialog on the Peaceful Uses of Outer Space. 

This UN based platform will celebrate the achievements of the original Outer 

Space Treaty since inception in 1967. The objective of the program is to evaluate 

changing conditions and identify potentials, within the advancing technological frontiers. 

America’s leadership influence may be placed at risk regarding the Geneva program for the 50th Anniversary of the Space Treaty. As there is no consensus from 

the multi-billion dollar New Space industries, it is essential to situate America for 

global space leadership through an open discussion based on opportunities, and not 

legislative restrictions. The time frame is immediate. This perspective includes a 

guiding political platform describing an innovative U.S. policy for leadership and 

international engagement. Cohesive national objectives need to be developed before 

the UNISPACE+50 conference takes place next June in Geneva. Developments such 

as the creation of associated agreement and regulatory frameworks for space-based 

issues, will be suitably upheld, and enabled through this motivated public initiative. 

The space development paradigm is exponential and highly relevant: Topics that 

can be addressed within the UN auspices, will include national and global security 

platforms, space based information and communication technology (ICT) for global 

development, and global partnership for manned space venture and settlement. 

Opportunities and interests are extensive: the transition to commercial launch, 

the achievement of space-based infrastructures, manned space settlements and the 

upcoming trips to Mars. This paradigm shift clearly demonstrates the need for not 

88 

only international engagement and inter-agency collaboration, but also for original 

public/private partnership dynamics. In this way we will create an optimal climate 

for the best peaceful global opportunities. 

The current expectation is that the revisionary basis within the treaty umbrella 

will be addressed through the preparation of a number of rider and associated 

agreements. These types of negotiated agreements, unless inclusively orchestrated 

would normally take several years for placement. It is also apparent that U.S. policy 

might move ahead in advance of the UNISPACE+50 program, and position for a notable and extensive global leadership role. 

Topics of national import, which are under consideration, will include the role of 

next generation and quantum communications, the establishment of a secure international cyberspace and the significant value of distributed ICT systems for global 

development, economic growth and new fiat currencies. This process will address 

the research and development phases and objectives of an incremental and collaborative space based architecture, along with the use of advanced and sensitive technologies. These issues may include hypersonic flight, the discussion for nuclear deterrence, and the global non-proliferation process, supporting the tenet of the original treaty. 

The recommendation of Lifeboat Foundation is that a significant policy making 

potential can be readily assumed and brought forward by the U.S. administration 

ahead of the UNISPACE+50 conference in 2018. Innovative leadership at this early 

stage will greatly facilitate the many and forthcoming levels of engagement. 

Lifeboat Foundation is currently making arrangements to bring forward an original forum dedicated to the establishment of U.S. space leadership for the international community. This event will be held at the United States Institute of Peace 

in Washington, D.C., sponsored by several member’s of the U.S. Congress and Senate, non profit communities and commercial entities. 

We invite your participation and support. In particular, we feel that time scales 

are very limited and that considerable problem solving effects, may be suitably provided, by looking towards the establishment of an expedient ‘‘short path’’ U.S. space 

policy platform. The present window of opportunity from June 2017 to June 2018 

can best be utilized through a consolidated political front, which acknowledges both 

the immense value of U.S. technological export, and the opportunity represented by 

global collaboration and partnership. 

We much appreciate the notable and ongoing discussion for the Outer Space Treaty, within U.S. Senate and Congress, especially in regard to the development of the 

nascent markets. 

Sincerely 

Eric Klein, 

Lifeboat Foundation. 

RESPONSE TO WRITTEN QUESTION SUBMITTED BY HON. BILL NELSON TO

JAMES E. DUNSTAN

Question. What are some of the norms and standards that we should be establishing domestically in order to promote the types of international norms and standards that would be conducive to commercial activity in space? 

Answer. 

Thank you for allowing me to respond to your question above. You are correct that 

the United States can provide leadership internationally by establishing enforceable 

domestic norms and standards for space activities that other countries can follow 

that can result in either the establishment of customary international law, or provide the basis for new international agreements. These norms and standards can 

be broken down into four categories: 

1) Ensure no violations of the key provisions of the OST; 

2) Open coordination of activities between U.S. parties; 

3) Tackling the orbital debris ‘‘tragedy of the commons;’’ and 

4) Balancing priorities between exploration and use—and ensuring science isn’t 

squeezed out. 

Ensure No Violations of the Key Provisions of the Outer Space Treaty 

Congress should enact a regulatory framework that ensures that all Americans 

abide by the provisions of the Outer Space Treaty—which, in turn, will encourage 

other countries to do the same, and thus protect U.S. interests. While I have argued 

that Article VI is not self-executing, there are other provisions in the OST that are 

self-executing: 

89 

a) Space and celestial bodies are not subject to claims of appropriation by means 

of use or occupation (Article II); 

b) No placing of nuclear weapons or weapons of mass destruction in outer space 

(Article IV); 

c) No establishing military bases on the Moon or other celestial bodies (Article 

IV); 

d) Avoiding harmful contamination (Article IX); and 

e) Avoiding harmful interference (Article IX). 

The first three are simple to implement in a future regulatory regime: just add 

these prohibitions as conditions to the issuance of any authorization/registration, 

and mandate instant revocation of the authorization/registration for any breaches 

of these prohibitions. 

The last two prohibitions contained in the OST will require further clarification 

either through statute or regulation. Whichever agencies are granted jurisdiction to 

issue regulations will need to carefully define terms and develop standards in this 

area.1

Harmful Contamination. The Treaty does not define the words ‘‘harmful’’ or ‘‘contamination’’. This means Congress, the State Department and domestic regulators 

will need to wrestle with questions such as: 

• ‘‘What constitutes contamination?’’ Is disturbing the surface of a Celestial Body 2

‘‘harmful contamination’’? If so, then the United States violated Article IX in 

landing six Apollo missions on the surface of the Moon—and Article I’s talk of 

the freedom to use and explore space would be meaningless. 

• ‘‘What constitutes harm?’’ Is any change to a space environment a harm? Again, 

obviously not. The term ‘‘harmful’’ must involve some relative weight—but of 

what factors? 

• ‘‘Harmful to whom?’’ Is the harm to the environment the standard, or does 

harm come into play only if the activity will harm future humans visiting the 

Celestial Body? There is an argument that this provision relates back to the ‘‘no 

nukes’’ provision in Article IV and that contamination must impact human activities.3 An alternative interpretation is that human biological contamination 

of Celestial Bodies must be limited so that such contamination not lead to ‘‘false 

positives’’ in the search for extraterrestrial life.4

• ‘‘Contamination to what?’’ Some argue that future visits to the Apollo sites must 

be limited or prohibited outright because to do so would contaminate these historical areas.5

• ‘‘How non-contaminated must a mission be?’’ NASA has interpreted the ‘‘no 

harmful contamination provision’’ to mean that its missions to Mars must guard 

against microbial contamination as well, limiting the presence of bacterial 

spores on any surface to no more than 300,000.6 (Obviously, this number reflects some kind of weighing test.) ESA, the European Space Agency, follows 

similar measures. Are those same measures appropriate for private missions, 

and appropriate regardless of the destination of the mission? Or should they be 

tailored to the context of the mission? 

Whatever agency ends up processing mission authorization applications (or registrations) must be staffed with experts capable of crafting a balanced approach to 

‘‘harmful contamination’’ that balances protection of the space ecosphere with the 

right to exploration and use of space and Celestial Bodies that is guaranteed by Article I of the OST. 

Harmful Interference. Although often confused or conflated with harmful contamination, harmful interference relates to the activities of humans vis-a`-vis each other 

in outer space (rather than the impact of human activities on the space environment). Article I implies this principle: ‘‘Outer space, including the Moon and other 

celestial bodies, shall be free for exploration and use by all states’’—i.e., without interference. And Article IX makes this principle explicit: 

If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other 

celestial bodies, would cause potentially harmful interference with activities of 

other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. 

A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the Moon 

and other celestial bodies, would cause potentially harmful interference with acVerDate Nov 24 2008 10:53 May 15, 2018 Jkt 075679 PO 00000 Frm 00093 Fmt 6601 Sfmt 6621 S:\GPO\DOCS\29998.TXT JACKIE
90 

tivities in the peaceful exploration and use of outer space, including the Moon 

and other celestial bodies, may request consultation concerning the activity or 

experiment.’’ 

While the activities of nationals are specifically mentioned in the first clause,7 at 

its core, Article IX relies upon government-to-government diplomatic activity without the force of law. The United States could begin to establish international norms 

for adjudicating—and avoiding—interference disputes by: 

a) Establishing a standard for defining ‘‘harmful interference.’’ Harmful interference should be limited to activities of one party that interrupt or impinge 

the operations of another party or cause actual physical harm to a space object 

that negatively impacts the operations of the second party. Harmful interference could also include radio frequency interference—as radio frequencies 

will be critical to any space mission. Congress should make clear that economic 

harm, absent a physical harm (radio frequencies, too, are issues of pure physics), does not rise to the level of harmful interference. 

b) Establishing basic interference parameters for U.S. domestic operations (e.g., 

orbital distance separations, and lunar operations separation). 

c) Declaring that principles of terrestrial tort law apply to outer space operations, 

and establish jurisdiction in the Federal district courts to hear claims of interference between U.S. parties. Ultimately, the goal should be to promote tort 

law as the basis for resolving disputes between U.S. and foreign parties, as 

well—to have a single common law for space and a mechanism for resolving 

U.S.-foreign disputes that is more effective, faster and cheaper to use than the 

state-to-state coordination mechanism contemplated by Article IX. As much as 

any particular private U.S. company might like to have the weight of the U.S. 

government behind it to enforce its rights to a particular mission, such a 

heavy-handed approach (empowering the government to pick winners and losers) would be costly for the government to engage in, and simply not necessary 

given the well-established field of tort law. 

Are there missions that should not be authorized simply because the ‘‘first mover’’ 

will preclude other users? For example, several geographic points at the lunar south 

pole are highly valuable. There appears to be only one good ‘‘down ramp’’ into 

Shackleton Crater, for example. Would the U.S. authorize a company to place a base 

on this down ramp with a concomitant interference-free zone that would preclude 

anyone else from using that down ramp—even if this meant giving that company 

an effective property right over the entire crater? Similarly, there are a few ‘‘peaks 

of eternal light’’ surrounding Shackleton Crater where operators would want to set 

up both communications and solar collectors. These areas are quite small, however, 

and multiple users might not be able to place installations there. How should such 

‘‘prime real estate’’ be treated for non-interference purposes? 

Open Coordination of Activities 

In order to minimize ‘‘harmful interference,’’ Congress should require an open coordination of activities between space operators. This is already done by the FAA/ 

AST when it comes to launch/reentry licenses (to ensure that objects are not 

launched into conflicting orbits) and by the FCC when it comes to spectrum use in 

outer space.8 Whatever regulatory regime is established for innovative space activities, the overseeing agency should require all operators seeking authorization or (as 

we have proposed) filing for registration 9 to describe their planned mission with sufficient specificity to allow later operators to develop non-interfering mission scenarios. That agency should also be given the power to require that operators coordinate their activities so as to allow later operators to conduct activities in a noninterfering way, if possible. For example, an entity seeking authority to mine the 

volatiles at the south pole of the Moon should be required to coordinate those activities with later operators seeking authority to do the same thing. Similarly, an operator seeking to mine asteroids should be required to specify what asteroid is to be 

mined, and the method of resource extraction. That way, a subsequent operator 

could plan a similar mission accordingly (or determine that multiple mining operations on that asteroid are not feasible because of the size of the asteroid 11 or the 

method of harvesting the resources (e.g., a ‘‘bag and blow’’ approach)).12

The difficulty with the coordination process, as the FCC’s experience has made 

clear, is dealing with the problem of ‘‘warehousing’’ a space resource. Consider this 

example: 

91 

Asteroid 2006RH120 has been ‘‘captured’’ by the Earth-Moon system and a mission in 2028 could rendezvous and land on it with a Delta-V of only 58 m/sec (i.e., 

extremely small amount of thrust needed). 2006RH120 is only 2.3 x 7.4 meters, 

meaning that it is highly unlikely that multiple operators could mine it without 

interfering with each other. If Company A seeks authorization to mine the asteroid 

and specifies a 2028 rendezvous date, would that preclude Company B from seeking 

authorization to rendezvous with it in 2026 using a higher-energy/less efficient trajectory? What if Company B agreed that it would vacate the premises prior to Company A landing in 2028? What if the mission calls for a ‘‘bag and blow’’ approach 

such that there would be virtually nothing left of 2006RH120 by the time Company 

A arrives? 

On-orbit servicing presents another example where open coordination is necessary. One person’s servicing satellite is another person’s ASAT: any vehicle with 

the capability to match orbits, rendezvous and dock with another object could easily 

be used to disable, destroy, and/or steal a satellite. Such operations must be conducted in such a manner that all space operators know where that servicing satellite is, and what it is doing, at all times.13

Regulations will need to be crafted to account for these types of issues. Ideally, 

authorizations would not be granted unless/until the entity can demonstrate that 

they can actually perform the mission. For satellites, the FCC has set up a system 

of ‘‘milestones’’ against which operators must purchase a bond which is forfeited in 

the event that the satellite is not timely launched. The complication here is that 

there is the added element of transit time for asteroid missions, where a later-authorized mission could beat a prior-authorized mission. Is the first-to-file applicant 

always the winner? Is that a rational approach if a later applicant can demonstrate 

that it can perform the mission sooner? 

By adopting domestic legislation and regulations that establish a responsibility for 

operators to openly coordinate their activities as a norm, the United States can urge 

other countries to adopt similar standards—and, as proposed in my testimony, could 

effectively require adoption of similar standards as a condition of recognizing another country’s legislation as consistent with that of the U.S. in a system of interlocking domestic legislation modeled on the Deep Seabed Hard Mineral Resources 

Act of 1979. Coupled with the adoption of tort law concepts to interference, discussed above, this would go a long way toward eliminating instances of open conflict 

between innovative space operators. 


523TECH5.eps
92 

Tackle the Orbital Debris ‘‘Tragedy of the Commons’’ 

As Douglas Adams famously wrote in The Hitchhiker’s Guide to the Galaxy: 

‘‘Space is big. Really big. You just won’t believe how vastly, hugely, mind-bogglingly 

big it is. I mean, you may think it’s a long way down the road to the chemist, but 

that’s just peanuts to space.’’ He wasn’t kidding. 

The total area of the 800 kilometer orbital sphere 14 encompasses 664 million 

square kilometers (or 411 million square miles) of area. Were the approximately 

1000 currently operating satellites all bunched in this one orbit (which they obviously are not), each would have some 664,000 square kilometers (411,000 square 

miles) in which to operate.15 The mindset of many in the early years of spaceflight 

was that space was so vast that the likelihood of two objects actually colliding was 

so remote as to not be worth worrying about, and certainly not worth taking into 

consideration when planning space activities. This became known as the ‘‘Big Sky’’ 

theory of space operations.16 Recent debris generating collisions (both accidental and 

intentional) have demonstrated, however, that the days of the ‘‘Big Sky’’ theory are 

over—if the theory ever had any validity to begin with. Today satellites must operate in orbits that not only contain 1000 other operating satellites, but 50 years’ 

worth of rocket bodies, derelict satellites, the flotsam and jetsam created by on-orbit 

explosions,17 and even debris created by routine space deployment activities, where 

pieces just float away from a vehicle while deploying payloads or during normal operation.18

Finally, and most importantly, the orbital debris situation is not static. While a 

certain number of pieces of debris reenter the atmosphere each year, countries continue to launch vehicles and create more debris on a yearly basis. Yet this accounts 

for a relatively slow and somewhat manageable increase in orbital debris. This 

steady state ecosystem of junk is upset, however, whenever there is a major collision 

incident. On average, as discussed above, such incidents create between 2,500 and 

3,500 new trackable pieces of junk. The fear, which is not yet predictable, is if such 

major collision events continue, there may be a cascade effect—‘‘the Kessler Syndrome’’—whereby collision events and new debris occur at exponentially increasing 

rates, creating huge clouds of debris and rendering certain orbits so dangerous as 

to be useless.19

The United States has taken a lead internationally on orbital debris mitigation, 

through the work done at NASA, as well as being a founding member of the InterAgency Space Debris Coordination Committee (IADC).20 Any new regulatory regime 

should continue this leadership. The regime should also strive to consolidate, harmonize, and streamline regulations in this area. Currently, there are at least five 

separate regulatory regimes for orbital debris mitigation that, while all based on the 

NASA standards, nonetheless differ slightly in approach and reporting requirements.21 It is thus possible for a mission to have to submit multiple debris mitigation plans to different agencies. 

Most important, the United States must take the lead in actually enforcing debris 

mitigation standards. The DoD routinely waives its debris mitigation guidelines for 

its launches, and the FCC has allowed Iridium to operate 10 of its satellites until 

they ‘‘run dry,’’ rather than requiring Iridium to de-orbit or move those satellites 

to a ‘‘graveyard’’ orbit.22 If the U.S. wishes to lead internationally in establishing 

norms and standards, then it must enforce its own regulations, before it can demand that the rest of the world also ‘‘gets tough’’ on orbital debris.23

Finally, the United States must begin to establish norms and standards for orbital 

debris remediation (the actual removal of orbital debris). This could include a statutory declaration that any U.S. registered abandoned space object that poses a potential threat to space navigation can be removed, under maritime law concepts of ‘‘salvage and finds.’’ 24 The United States should also begin to explore ways of creating 

Public/Private Partnerships to incentivize the private sector to actively remove derelict space objects.25 One possible source of funding for a ‘‘bounty pool’’ would be the 

approximately $15 million annually the FCC collects in regulatory fees from satellite operators.26 Any regulatory regime next adopted by Congress should direct the 

applicable agency to study private sector approaches to orbital debris remediation. 

Balance Priorities Between Exploration and Use (ensuring science isn’t 

squeezed out) 

Article I of the OST declares that outer space shall be free for both exploration 

and use by all nations. In the rush to encourage American businesses to continue 

to develop an outer space economy that will benefit all humanity (and increase the 

tax base of the United States), the United States cannot overlook or downplay the 

important role exploration will continue to play in outer space. As a species, we 

have only just begun to learn about our planet, our solar system, and the universe 

93 

we inhabit. The continued exploration of outer space, both by government actors and 

private companies, must be encouraged and protected. 

Any new regulatory regime must act in a way that both encourages private sector 

‘‘use’’ of outer space but also protects scientific ‘‘exploration.’’ We cannot repeat the 

mistakes the FCC made late in the last century of reallocating significant spectrum 

from space uses to terrestrial uses, simply because, at that time, there was less activity in space and a desire for more terrestrial services.27 The relevant agency or 

agencies should be charged by Congress to incorporate the needs of the science community into any authorization regime. That is not to say that science can ‘‘veto’’ private activities in space: the science community must participate in the same open 

coordination process that will be required of private actors.28

This is a critical standard to adopt domestically so that worldwide the important 

scientific exploration of outer space is protected—and, again, a requirement that 

could be a core part of a system of interlocking domestic legislation adopted by 

spacefaring nations piecemeal, without any need to re-open the Outer Space Treaty 

for negotiation or even to negotiate a new space law convention. 

References 

1The contamination aspects of orbital debris are discussed separately below. 

2The term ‘‘Celestial Body’’ also is not defined in the OST. There was some discussion at the 

time of the negotiation of the OST that Celestial Body should be defined to limit it only to natural objects in space that are not capable of being moved from their current orbits. See E. Fasan, 

Asteroids and other Celestial Bodies Some Legal Differences, 26 J. Space L. 33 (1998) (arguing 

that early space law writers and possibly the negotiators of the OST limited the definition of 

‘‘Celestial Body’’ to include only the planets and major moons). 3 It should be noted that prior to the OST negotiations, the United States had carried out 

‘‘Project West Ford’’ (also known as ‘‘Project Needles’’) in which the U.S. launched 480,000,000 

1.78 cm long copper needles into near polar orbits at between 3,500 and 3,800 kilometers 

(2,200–2,400 miles) to determine whether an artificial ionosphere could be created such that 

radio waves could be bounced off the needles allowing for long distance (over the horizon) radio 

communications. International scientists objected to the mission, fearing that the needles would 

negatively impact astronomy programs. Many legal scholars point to Project West Ford as the 

catalyst for the consultation requirements of Article IX, but tie that provision to the non-interference language of Article IX, not the no harmful contamination provision. See, e.g., D. Terrill, 

‘‘The Air Force Role in Developing International Space Law,’’ Air University Press, 1999, available at https://media.defense.gov/2017/Apr/07/2001728438/-1/-1/0/B_0069_TERRILL 

_OUTER_SPACE_LAW.PDF (last visited 6/22/17); see also J. Gabrynowicz & S. Langston, ‘‘A 

Chronological Survey of the Development of Art. IX of the Outer Space Treaty,’’ Special Topics 

in Aerospace Law Series, no. 3, a Supplement to the Journal of Space Law, available at http:// 

www.spacelaw.olemiss.edu/resources/pdfs/article-ix.pdf (last visited 6/22/17) 4See M Williamson, ‘‘A Pragmatic Approach to the ‘Harmful Contamination’ Concept in Art. 

IX of the Outer Space Treaty,’’ 5th Eilene M Galloway Symposium on Critical Issues in Space 

Law, December 2010, available at: http://www.spacelaw.olemiss.edu/events/pdfs/2010/galloway-williamson-paper-2010.pdf (last visited June 13, 2017). 5See ‘‘NASA’s Recommendations to Space-Faring Entities: How to Protect and Preserve the 

Historic and Scientific Value of U.S. Government Lunar Artifacts,’’ Released July 20, 2011, 

available at: https://www.nasa.gov/pdf/617743main_NASA-USG_LUNAR_HISTORIC 

_SITES_RevA0508.pdf (last visited June 13, 2017). 6See https://mars.nasa.gov/mer/technology/is_planetary_protection.html (last visited June 

13, 2017). 7Some space law scholars argue that private activities are only addressed in the first clause 

of Article IX, and that private citizens have no right to petition their governments to complain 

about an activity that might interfere with that private citizen’s space activities. See http:// 

groundbasedspacematters.com/index.php/2017/03/31/the-non-interference-provision-of-articleix-of-the-outer-space-treaty-and-property-rights/ (writings of Laura Montgomery, last visited 

June 13, 2017). 8See, e.g., proposed Order In the Mater of WorldVu Satellites Limited (OneWeb), available 

at http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0601/DOC-345159A1.pdf 

(last visited June 13, 2017) (requiring operators of NGSO systems to coordinate their operations 

and frequency usage to allow for the flying of multiple constellations of satellites). 9TechFreedom has previously advocated for a ‘‘Mission Registration’’ approach rather than the 

‘‘Mission Authorization’’ approach advocated for by the Obama Administration in response to 

Section 108 of the CSLCA. For the purposes of this section, the type of regulatory regime is 

not critical to this analysis. 11Only one operator might be able to mine a small asteroid as depicted below in this NASA 

concept image. 

94 

12One approach, depicted above in a NASA concept image, is to capture the asteroid in a bag 

and then blow it up to extract the resources, again, making it virtually impossible for two entities to mine the same asteroid. 13For example, in the proposed WorldVu order, supra note 8, the FCC is proposing to require 

that OneWeb publish the orbital parameters (ephemeris data in two-line orbital element format) 

at least once every three days. Similar regulations could be adopted requiring any on-orbit servicing mission to publish in near-real time the orbital parameters of their service vehicles and 

any intended altitude or plane changes. 14The 800 kilometer orbit was chosen for this calculation because it is considered one of the 

more crowded orbits. 15This calculation is a significant oversimplification since in addition to assuming that the 

approximately 1000 operating satellites all occupy the 800 kilometer orbit, the calculation assumes that all are exactly orbiting on the surface of a perfect sphere 800 kilometers above the 

mean surface of the Earth (and hence 7271 kilometers above the center of the Earth). Therefore, 

it only calculates the square kilometers surface area of the sphere. Since satellites don’t operate 

at exactly the same orbital altitude, even within a designated orbit, and since orbits aren’t entirely circular (the apogee—or high point—of an orbit is usually slightly different than the perigee—or low point), to be more accurate the calculation should be made using a three dimensional slice of sphere centered around 800 kilometers above the surface of the Earth, making 

the amount of ‘‘Big Sky’’ surrounding each satellite appear much larger. However, what also 

makes the calculation incorrect is the assumption that somehow all of satellites are flying ‘‘in 

formation,’’ while in reality, they are orbiting in a variety of directions (predominately West to 

East, North to South (polar) or South to North (polar)), such that their orbits cross each other. 16The origin of the term ‘‘Big Sky’’ is unknown. Most likely it comes from aviation traffic modeling where the assumption is that two randomly flying bodies are unlikely to collide because 

of the size of the three dimensional space in which they operate. The earliest reference this author can find to such a theory applied to space is the SURVEY OF SPACE LAW, STAFF REPORT

OF THE SELECT COMMITTEE ON ASTRONAUTICS AND SPACE EXPLORATION, H. R. DOC. NO. 89, 

86TH CONG., 1ST SESS., at 7 (1959) [hereinafter SURVEY OF SPACE LAW] (where Dr. John 

P. Haden, the director of Project Vanguard is quoted as saying ‘‘space is a very big area’’). 17 Between 1961 and 1995, for instance, 124 fragmentation events were cataloged. See Office 

of Science and Technology Policy, Interagency Report on Orbital Debris, 12 (Nov. 1995), available 

at http://orbitaldebris.jsc.nasa.gov/library/references.html. 

18One of the earliest and most publicized pieces of space debris was NASA astronaut Ed 

White’s glove, which he lost on the first American spacewalk during the Gemini 4 flight 

(June 3, 1965). See National Aeronautics and Space Administration, Gemini 4, http:// 

nssdc.gsfc.nasa.gov/nmc/masterCatalog.do?sc=1965–043A (last visited Sept. 12, 2013). Fortunately, the Gemini 4 capsule was orbiting at a relatively low altitude (166 x 290 km orbit), such 

that the glove reentered the atmosphere within a month. For a look at eight interesting (tagged 

as ‘‘weird) pieces of orbital debris, see Clara Moskowitz, Lost in Space: 8 Weird Pieces of Space 

Junk, WIRED (Feb. 13, 2013), http://www.wired.com/wiredscience/2009/02/spacestuff/. 19The ‘‘Kessler Syndrome’’ is named after (and not directly by), retired NASA engineer Donald 

J. Kessler. According to Kessler, the term was coined by a colleague, John Gabbard, a NORAD 

analyst. See Donald J. Kessler, The Kessler Syndrome (Mar. 8, 2009), http://webpages 

.charter.net/dkessler/files/KesSym.html. See also Donald J. Kessler & Burton G. Cour-Palais, 

Collisional Frequency of Artificial Satellites: The Creation of a Debris Belt, Paper 8A0210, 83(A6) 

J. GEOPHYSICAL RES., 2637 (June 1, 1978); Donald J. Kessler, Collisional Cascading: The 

limits of population growth in low earth orbit, 11(12) ADVANCES IN SCIENCE RES., 63–66 (1991). 

See also James Rendleman, Space Traffic Management—Private Regulation, in PROC. OF THE

AIAA SPACE 2012 CONF. & EXPO., n. 6, AIAA 2012–5124 (Sept. 2012), http://arc.aiaa.org/doi/ 

abs/10.2514/6.2012–5124. For a fascinating PBS interview with Donald Kessler about orbital 

debris and the ‘‘Kessler Syndrome,’’ see https://www.youtube.com/watch?v=LaKz8VDkDkI (last 

visited June 15, 2017). 20http://www.iadc-online.org/. 21 Compare, 14 C.F.R. § 417.129 (FAA/AST orbital debris mitigation standards for launch/reentry); 47 C.F.R. § 25.114(d)(14) (FCC regulations or orbital debris mitigation for satellites); 15 

C.F.R. Part 960, Appendix 1: C (NOAA remote sensing orbital debris requirements; NASA–STD– 

8719.14A (74 pages), which puts into effect NASA Procedural Requirement 8715.6, and includes 

reference to NASA-Handbook (NASA–HDBK) 8719.14 (NASA orbital debris mitigation guidelines); DoD Directive 3100.10 (Space Policy), 2012; DoD Instruction 3100.12 (Space Support), 

2000 (DoD guidelines on orbital debris mitigation). 22See Iridium Constellation LLC, DA 14–1118, released July 31, 2014. 23For example, in 2002, ESA launched Envisat, an 8,000 kilogram Earth observation satellite 

into the highly crowded 790 km polar orbit. At 26 meters x 10 meters, by 5 meters, it is one 


523TECH6.eps
95 

of the largest satellites orbiting Earth. It had an expected operational life of five years, but ESA 

continued to operate it for an additional five years. In April of 2012, ground controllers lost contact with the satellite. Although being operated well beyond its expected operational life, no efforts were made to deorbit the satellite, move it to a safer orbit, or safe the fuels and batteries 

onboard. It is estimated that the satellite will remain in orbit, and a danger to space navigation, 

for between 100 and 150 years. ESA’s response to why nothing was done to prepare Envisat 

for its inevitable end of life? According to one report, ‘‘ESA officials insist that the international 

guidelines on disposal of debris were not in force when Envisat was designed.’’ See Peter B. de 

Selding, ‘‘Envisat to Pose Big Orbital Debris Threat for 150 Years, Experts Say,’’ SPACE NEWS 

(July 26, 2010), at 1, http://www.spacenews.com/article/envisat-pose-big-orbital-debris-threat150-years-experts-say. 24For a fuller discussion of the application of the laws of salvage and finds to outer space, see J. Dunstan, ‘‘Space Trash:’’ Lessons Learned (and Ignored) from Space Law and Government, 

39 J. Space Law 23 (2013). 25For one approach to a ‘‘bounty system’’ for orbital debris, see J. Dunstan and B. Werb, Legal 

and Economic Implications of Orbital Debris Removal: A Free March Approach, presented at the 

International Conference on Orbital Debris Removal hosted by DARPA, December 8–10, 2009, 

available at: https://spacefrontier.org/wp-content/uploads/2009/12/Legal-and-Economic-Implications-of-Orbital-Debris-Removal-A-Free-Market-Approach.pdf (last visited June 16, 2017). 26See Assessment and Collection of Regulatory Fees for Fiscal 2017, Notice of Proposed Rulemaking, FCC 17–62, p.22 (released May 23, 2017). This annual regulatory fee is in addition to 

substantial application fees operators have to pay the FCC to receive licenses. 27See J. Dunstan, Earth To Space—I Can’t Hear You: Selling Off Our Future To The Highest 

Bidder, Proceedings of the Thirteenth Space Studies Institute/Princeton Conference on Space 

Manufacturing, 1997. 28 Coordination between space telecommunications uses and radio astronomy provides a good 

example of how the needs of science can be accommodated at the same time private enterprise 

is allowed to operate in space. See WorldVu Draft Order, supra n. 8, ¶ 10 (reminding OneWeb 

of its obligations to coordinate with the radio astronomy community). 

RESPONSE TO WRITTEN QUESTION SUBMITTED BY HON. BILL NELSON TO

LAURA MONTGOMERY

Question. What are some of the norms and standards that we should be establishing domestically in order to promote the types of international norms and standards that would be conducive to commercial activity in space? 

Answer. The norms that the United States should establish domestically to promote commercial activity should recognize private property rights and protect the 

activities of commercial operators from interference by others. 

Property rights: Article II of the Outer Space Treaty does not prohibit commercial 

or private ownership of land or extracted resources. Instead, it is silent regarding 

commercial interests, and directs its prohibition on appropriation at ‘‘States Parties.’’ Property rights serve as an incentive to investment. Without property rights 

and recognized title, a person cannot offer land as collateral on a loan or to obtain 

financing. Investors are more leery when there is no means of securitizing an investors’ interests, and the operator itself is hampered in its ability to plan if it does 

not know that the property it is using and, hopefully, going to be spending decades 

on, will remain under its control. Accordingly, the United States should figure out 

a way to recognize property rights extraterrestrially. 

Interference and safety: Although commercial progress on reaching celestial bodies is still not very far along, orbital activities show how the U.S. is already a leader 

in seeking to avoid interference between spacecraft. U.S. Government practice and 

regulatory codes direct spacecraft to avoid collisions with other spacecraft and to 

prevent the generation of orbital debris. It is probably premature to worry about interference between commercial operators yet on celestial bodies. 

RESPONSE TO WRITTEN QUESTION SUBMITTED BY HON. BILL NELSON TO

MATTHEW P. SCHAEFER

Question. What are some of the norms and standards that we should be establishing domestically in order to promote the types of international norms and standards that would be conducive to commercial activity in space? 

Answer. Domestically, the U.S. space industry and U.S. Government should begin 

discussing standards to meet some key Outer Space Treaty (OST) obligation terms, 

such as harmful contamination in OST Art. IX. The U.S. State Department took the 

position in the recent Moon Express payload review that COSPARS standards do 

not create a floor for what will be compliant with OST Art. IX. In other words, 

COSPARS standards created in a scientific era are not the standards that need be 

complied with in a new commercial era. There is significant flexibility in how to define harmful contamination. Commercially-friendly standards, even ones create by 

96 

industry groups, can be deferred to, as long as those standards do not stray from 

the treaty terms properly interpreted under the well-established rules of treaty interpretation codified in the Vienna Convention on the Law of Treaties, Art. 31 & 

Art. 32. Those interpretation rules place primary emphasis on the ordinary meaning 

of the terms of the treaty, and in this case lend themselves to significant flexibility 

in interpreting the term harmful contamination. If the United States industry comes 

to agreement on a standard, and that standard does not conflict with international 

obligations, then the U.S. Government, together with industry, can seek to promote 

those standards internationally. Congress can require deference to industry standards by the Executive Branch when delegating on-orbit authorization authority to 

the Executive Branch. Congress can also encourage exportation by the Executive 

Branch of those standards internationally. 

The U.S. industry and government may also wish to discuss standards on what 

constitutes harmful interference, but may wish to wait on developing too rigid of 

standards in this area until experience under actual cases is gained. The United 

States successfully internationalized (exported) its debris mitigation principles that 

now find reflection in the IADC and UNCOPUOS principles. Such exportation of 

standards and guidelines is eased when the United States shows good-faith respect 

for international obligations. Congress’ codification of the United States’ long-standing OST interpretation allowing for property rights in extracted resources in 2015 

(Public Law 114–90) in a manner that acknowledged and respected U.S. international obligations is an example of establishing interpretations and principles in 

a manner that increases and maximizes the chances of bringing other countries onboard with commercially-friendly interpretations and principles to the benefit of 

U.S. space companies. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. BILL NELSON TO

PETER MARQUEZ

Question 1. What are some of the norms and standards that we should be establishing domestically in order to promote the types of international norms and standards that would be conducive to commercial activity in space? 

Answer. Background. 

The norms and standards set by the United States will have a profound impact 

on how the rest of the world reacts to commercial space activities. As history has 

indicated, the United States Government’s approach to implementing its obligations 

under Article VI of the Outer Space Treaty in relation to highly innovative private 

space activities will influence the approach of the 100+ other Parties to the Treaty. 

The Treaty lays out some basic rules of the road for all actors in space, public 

or private. National implementing legislation is the necessary connection between 

international law and private space operators. To maintain this continuity across all 

space activities, and to preserve the global competiveness of the commercial space 

sector, it is imperative that the United States Government impose no more than is 

legally necessary to ensure conformity with the provisions of the Outer Space Treaty. 

Recommendations 

First, I urge Congress to distinguish between measures that are legally required 

to implement the United States’ obligations under the Outer Space Treaty, and 

those that are intended to further public policy interests. 

Policy-driven measures that would constrain private space activity must be carefully weighed against cross-cutting public policy interests in opening up entirely new 

space-based economies, with its tremendous potential for job creation and improvements to quality of life. 

As a former national security professional, I am well aware that the United 

States’ national security interests may, in some cases, counsel for specific conditions 

on private space activities. It is imperative that any such conditions, and the process 

for evaluating commercial space activities in light of U.S. national security interests, 

be narrowly tailored—limited to major, specific national security threats, with procedural safeguards built in that prevent an endless and opaque review process that 

kills innovation, destroys investment, and cedes commercial innovation and technological development to non-U.S. actors. In this connection, we see elements of the 

recently introduced American Space Commerce Free Enterprise Act, H.R. 2809, as 

a step in the right direction. 

Measures to implement the United States Treaty obligations must be narrowly 

tailored to require no more than legally necessary for Treaty compliance. In this regard, we are encouraged by features of H.R. 2809, building in definite time tables, 

97 

a presumption of approval, and authorizing only such conditions as legally necessary 

to ensure conformity with the Outer Space Treaty. 

Second, it is imperative that regulators not get too far ahead of the technologies 

and capabilities of the coming generation of commercial space activities, attempting 

to regulate based on their best guess of how technologies and activities will unfold. 

The government is not well placed to make informed guesses, and in many cases 

the commercial space sector will find the optimal technical solutions through a process of experimentation. This is an essential piece of our industry’s innovation engine, and there is an ever-present risk of regulators inadvertently forcing suboptimal technical choices. 

Third, the United States should promote the foundational elements of the Outer 

Space Treaty as the key norms and standards for all international actors to follow 

and domestically enact, especially in accordance with Article VI. Key among them 

are the protections from harmful interference. We believe that it is in the best interest of all Nations to preserve the right of all actors to operate in space free from 

harmful interference from other activities. 

Regulatory Approach. Col. Melroy’s testimony describes a regulatory approach 

where a few very high-level, performance-oriented requirements are complemented 

by industry standards that contain the details. 

Question 2. Could each of you please comment on whether such an approach 

would make sense for providing U.S. Government oversight and regulatory certainty 

for emerging commercial space activities that are not covered under existing regulations? And what should the role of government agencies be in, if any, in developing 

industry standards for commercial space activities? 

Answer. Recommendations. 

As the Outer Space Treaty lays down general principles, rather than specific requirements, there are many paths to conformity with each provision. Which path 

is commercially feasible (or optimal) will only become clear as capabilities near or 

mature. 

In many instances, private operators are much better placed to know the optimal 

means of complying with these broad principles. 

Therefore, industry should be proposing means of meeting OST principles, and 

Government confirming conformity with the treaty, rather than a top down approach. 

The Government has a role in publicly supporting these industry standards, with 

particular emphasis placed on supporting these standards in international discussions-bilaterally or multilaterally. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. BILL NELSON TO

MIKE GOLD

Question 1. What are some of the norms and standards that we should be establishing domestically in order to promote the types of international norms and standards that would be conducive to commercial activity in space? 

Answer. The U.S. should support an efficient and effective regulatory approach 

that meets Article VI obligations while ensuring that American commercial space 

activities avoid causing harmful interference with domestic or foreign operations. A 

process should be established that encourages innovation and investment while still 

protecting the safety of the environment in orbit and beyond. Moreover, the U.S. 

should set an example by continuing to involve the private sector in standard setting activities via Federal Advisory Committees and initiatives such as the DARPA 

Consortium for Execution of Rendezvous and Servicing Operations (‘‘CONFERS’’) 

program. 

Regulatory Approach. Col. Melroy’s testimony describes a regulatory approach 

where a few very high-level, performance-oriented requirements are complemented 

by industry standards that contain the details. 

Question 2. Mr. Gold and Col. Melroy, what improvements are needed in space 

traffic management to enable expanded commercial activity in space? 

Answer. The U.S. Air Force has done a superb job of supporting the private sector 

with collision avoidance data. However, the Air Force and Department of Defense 

(‘‘DoD’’) are justifiably concerned with the amount of time and resources that have 

gone into such activities. The DoD should be allowed to remain focused on core national security responsibilities and has expressed the need for a civil agency, focused 

on safety, to step in and provide the private sector with potential conjunction warnings and related information. 

A pilot program for FY 2018 is being established for the DoD to work with the 

FAA Office of Commercial Space Transportation (‘‘FAA AST’’) to play this role. Via 

98 

a partnership with the DoD, the FAA AST will begin the process of developing and 

demonstrating a system for sharing data with commercial entities while still providing robust protection for classified information. Moreover, the FAA AST will leverage innovative capabilities being developed by industry and academia to further 

enhance the existing U.S. Space Catalogue. The FAA AST hopes to combine all of 

this with a customer service-oriented approach emphasizing transparency, accuracy, 

and efficiency. 

If this demonstration is successful, the FAA AST can ensure that the private sector receives space traffic management information in a timely and easily accessible 

manner. This will allow commercial space activities to survive and thrive, while 

freeing the DoD to focus on its core national security mission. 

Regulatory Approach. Col. Melroy’s testimony describes a regulatory approach 

where a few very high-level, performance-oriented requirements are complemented 

by industry standards that contain the details. 

Question 3. Could each of you please comment on whether such an approach 

would make sense for providing U.S. Government oversight and regulatory certainty 

for emerging commercial space activities that are not covered under existing regulations? And what should the role of government agencies be in, if any, in developing 

industry standards for commercial space activities? 

Answer. I believe the approach described by Col. Melroy is sound. Unlike mature 

industries, such as aviation, many emerging commercial space activities are so new 

that only the companies themselves have a comprehensive understanding of their 

systems. Moreover, emerging commercial space activities vary widely in nature and 

scope. Therefore, while it’s possible and proper for the U.S. Government to establish 

high-level requirements, industry should develop the relevant details. This process 

has already been initiated via efforts supported by the Commercial Space Transportation Advisory Committee (‘‘COMSTAC’’) and the Commercial Spaceflight Federation. 

Beyond providing high-level, performance-oriented requirements, the U.S. Government has an important role to play in supporting and facilitating standards development. Many emerging space companies are run on a relatively tight budget and 

their personnel have limited time that can be dedicated to regulatory efforts and 

discussions. Consequently, the U.S. Government should provide funding and support 

personnel for standards development to ease the burden on private sector companies. For example, via the COMSTAC, the U.S. Government helps to provide a 

framework and some personnel support for standards development and regulatory 

discussions. 

Another example of a constructive role that the U.S. Government can play is the 

previously referenced DARPA CONFERS program. Under CONFERS, DARPA is 

sponsoring the creation of a ‘‘secretariat’’ that will support standards development 

involving both domestic and foreign entities. DARPA will provide funding to this 

secretariat, which will be operated by a nongovernmental organization. As the secretariat and field of satellite servicing evolves the government funding and support 

will be phased out. CONFERS presents an attractive model for the role of the U.S. 

Government in standards development that, if successful, could be replicated to address additional issues and activities. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. BILL NELSON TO

PAMELA A. MELROY

Question 1. What are some of the norms and standards that we should be establishing domestically in order to promote the types of international norms and standards that would be conducive to commercial activity in space? 

Answer. There is an urgent need for norms and standards around certain activities in space operations—specifically, those that involve risk. A great example of 

how this can be successful can be seen in the NASA orbital debris mitigation standards, which began organically at NASA and then were adopted by the U.S. Government; all or most of those standards have been adopted internationally. They were 

successful for several reasons. First, they addressed a universal safety issue. Second, they were reasonable and had a path to be achieved without serious financial 

burden. Third, they were technically based. These are all important criteria to be 

considered for the future. 

FAA AST has already published some guidelines relative to commercial human 

spaceflight that will be very helpful going forward, and their advisory group 

COMSTAC is working on others related to launch safety. Other safety-based standards and norms could include rendezvous and proximity operations (such as the 

CONFERS effort being funded by DARPA and NASA), docking and refueling, and 

99 

even standard liability clauses for spacecraft servicing contracts. Examples of standards include the use of passively safe orbits (meaning that if there is a communications failure, the spacecraft will pass by each other and not collide) until as late as 

practical in the docking timeline; the use of grounding features during spacecraft 

refueling to avoid the buildup of electrical current and attendant hazards; and notification of intent for cooperative rendezvous to a space traffic management organization. In some cases hardware standards can be very helpful—for example, in the 

shipping industry certain standards at ports make it possible for all ships to dock 

and be serviced. 

Question 2. Mr. Gold and Col. Melroy, what improvements are needed in space 

traffic management to enable expanded commercial activity in space? 

Answer. Today, we do not truly have space traffic management—we have Space 

Situational Awareness (SSA) with monitoring and notification of potential conjunctions. First, an organization must be identified which has both the technical capability and the resources to provide the full range of services—surveillance, monitoring, notification, and regulatory authority to punish bad actors. 

We must also increase the tempo of information to improve accuracy; today a 

dozen exquisite certified sensors are used by the Air Force to track objects in space, 

but repeat observations can be days apart, which greatly decreases the accuracy of 

the orbital track. Recently there have been major strides made by commercial entities such as COMSPOC in gathering less exquisite data from many sensors around 

the world—commercial, academic, and government—and blending them together for 

more rapid and accurate observations. At this time, the Air Force’s JSpOC and National Space Defense Center (formerly JICSpOC) are currently exploring opportunities to use this commercial Space Situational Awareness (SSA). The civil government entity responsible for space traffic management should be closely coordinating 

with the Air Force to encourage this new space industry and take advantage of the 

lower cost, higher tempo data that commercial SSA provides. Government organizations should also coordinate how they purchase and use this data to help industry 

optimize the business model. 

Next, we must use advanced technology to reduce the cost of these activities 

which are labor-intensive and largely manual today. More (and better) SSA data— 

even if it is less expensive—means that much greater levels of automation will be 

needed, and special tools for big data analysis. These automated features can simplify conjunction notifications as well. 

Finally, as the commercial launch (and recovery) services industry continues towards higher ops tempo, we will begin to find our air traffic system increasingly 

stressed in order to clear wide swaths of airspace for launch and landing activities. 

Integration of air and space traffic management will be essential to allow spacecraft 

to safely launch through busy air routes on schedules that are commercially viable. 

Spectrum may play a connected role in this integration as the use of transponder 

frequencies allotted to aircraft users may be needed for spacecraft that are launching. 

Question 3. Col. Melroy, what are the benefits of the existing Outer Space Treaty 

regime for our commercial, civil, and national security space interests? 

Answer. The major benefit of the existing Outer Space Treaty is that it is better 

than nothing. Based on recent agreement attempts such as the Code of Conduct, I 

am concerned that if we attempted to re-negotiate the treaty, it would likely fail 

or at least take many years. When we open up re-negotiation, we weaken the overall 

commitment to this one agreement with the force of international law. The current 

treaty does not prohibit anything we want to do which makes it a good starting 

point. 

The other benefit is that the Treaty is based on principles rather than being proscriptive. This provides flexibility. While it was not written with today’s changes in 

national security or the expanding commercial environment in mind, we can tailor 

the principles individually through standards and other agreements for specific sets 

of activities. In fact, it’s urgent that we do so, and the State Department should be 

forwarding this goal at UN COPUOS with the support of Congress and departments 

and agencies. 

Æ