New Space Industries Prompt Talk of Revisiting Outer Space Treaty

The U.S. has "an authorization gap" for new outer space activities like in-orbit satellite servicing and asteroid mining, which creates uncertainty for industry, Matthew Schaefer, University of Nebraska College of Law co-director-Space, Cyber and Telecommunications Law Program, told the Senate Space, Science and Competitiveness Subcommittee Tuesday. Testimony involved the possible regulatory regimes of such new activities, and the possible need to revisit the 1967 Outer Space Treaty. OST Article VI, which makes nations responsible for oversight of space activities that originate from individual countries, "has been an issue," said Sen. Ed Markey, D-Mass. Numerous questions involved U.S. obligations under Article VI. Satellite lawyer Jim Dunstan of Mobius Legal Group said nothing is to be gained by reopening the treaty regime, which would let unfriendly nations layer on regulatory burdens. Schaefer said fear of the difficulties of OST compliance is unwarranted, since the treaty's obligations are minimally burdensome, but the U.S. not respecting its OST obligations leads to such potential consequences as foreign governments taking away markets and customers from U.S. space businesses. Space lawyer Laura Montgomery of Ground Based Space Matters said the U.S. isn't obligated to regulate all new outer space activities, and it's a misconception Article VI "makes the United States regulate either any particular activity or all activities of U.S. citizens in outer space." She said Congress should prohibit any regulatory agency from denying a U.S. entity from operating based on Article VI considerations. Schaefer said if the U.S. starts legislating in the area of Article VI, some countries will impose the U.S. interpretation for matters of their own national interest, and it would lead to more nations inspired to adopt commercially friendly interpretations. He recommended Congress act to limit the national security barrier to new space activities as much as possible. Many said the U.S. has an effective existing regulatory framework to deal with space debris from such new space industries, but a consolidation and harmonization of the debris mitigation rules required by different agencies would be useful. Since property rights are a good incentive to investment, the U.S.needs to figure out a way to recognize property rights extraterrestrially, and Article II allows that, Montgomery said. Dunstan disagreed, saying OST doesn't allow the U.S. to recognize private property rights. Schaefer said it might be better to proceed on a case-by-case basis for property right disagreements, leaving the discretion in the executive branch rather than doing a rewrite of Article II.