Senate Hearing on Reopening the American Frontier

On Tuesday this week, May 23, the Senate Subcommittee on Space, Science, and Competitiveness held a hearing titled Reopening the American Frontier: Exploring How the Outer Space Treaty will Impact American Commerce and Settlement in Space. There were two panels, and I was on the first panel with my friends and colleagues Jim Dunstan of Mobius Legal Group and Matt Schaeffer, professor of law and co-director of the space, cyber and telecommunications program at the University of Nebraska’s law school. We were asked to address possible impacts of the Outer Space Treaty on the expansion of our nation’s commerce and settlement in outer space. My testimony is available here, and Professor Schaeffer’s is available here.

Mine is substantially similar to what I provided the House space subcommittee in March, but this time I emphasized more the importance of recognizing that the “harmful contamination” provisions of Article IX do not apply to private actors, and that human beings should not be treated as contaminants no matter how germy we are.

I found Jim Dunstan’s testimony particularly helpful and edifying, and strongly urge everyone to read the whole thing, but I want to highlight certain of his points. He makes some of the same points I have stressed in the past with regard to the import of Article VI’s call for authorization and supervision not being self-executing, but he has his own take on why the United States need not regulate more than it already does. The following outtakes highlight Jim’s perspectives:

  • 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) provides 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;

With respect to Article VI and the previous administration’s report calling for the regulation of all U.S. missions in space he says:

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

Interestingly, Jim ties treaty compliance to the fact that Article VI explicitly lays out the consequences for any lack of authorization and supervision:

 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.

This might mean, as well, I’m figuring, that even a country that puts round the clock surveillance on its private actors and asks for the whole gamut of risk assessments, hazard analyses, mitigation plans, FMECAs, and FMAs before granting an authorization, may still be internationally responsible for any damage that private actor might cause. One response to this liability exposure that we’ve seen in the United States is to require launch and reentry licensees to obtain third party liability insurance under 51 U.S.C. ch. 509.

As for authorization, Jim looks to the Tenth Amendment of the Constitution:

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.

The above provides real food for thought, and I applaud Jim’s insights and am very glad he shared them with the subcommittee.

I don’t agree that Article IX ‘s harmful contamination provisions are self-executing or even applicable to private actors, applying as they do to “States Parties,” but I addressed that in my own testimony, as linked above.


Senate Space Subcommittee Hearing

On Tuesday, May 23, 2017, the Senate Committee on Commerce, Science, and Transportation will hold a hearing in the Subcommittee on Space, Science, and Competitiveness entitled, “Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space.” The hearing will be held at 2:30 p.m. in room 253 of the Russell Senate Office Building and will be live streamed.  I am honored to be included on the witness list and look forward to testifying.


The “Non-Interference” Provision of Article IX of the Outer Space Treaty and Property Rights

Sometimes when you start a new project or line of inquiry it’s helpful to knock out the deadwood first. Then you can work on the bits that will get you somewhere. I want to understand private property rights in outer space, and lots of people say the Outer Space Treaty forbids a private person’s rights in “real property,” namely, land. Article II of the Outer Space Treaty isn’t deadwood. It forbids national appropriation in outer space. Article IX, however, might be. I want to address it first because I have heard theories floated about how it may protect some property interests.

In law school we learned that property rights were a collection of rights, which one could separate and parcel out. My property professor called them a bundle of sticks. You could have a lifetime interest in a bit of land but no ability to sell it. That’s not the whole bundle, but it’s not nothing. You could lease someone’s land for a year, but then have to leave it. (That’s more of a twig.) Both the lease and the lifetime interest constitute limited property rights. My question then is: does Article IX afford some form of property right, not all of them, necessarily, but some?

It’s always nice, when practicing law, to read what the words say, since they are the best expression of what someone meant. When you’re writing a law or regulation, you’re supposed to say what you mean and mean what you say, so we’ll figure that applies to treaties, too. Given the Supreme Court’s propensity for treating treaties like contracts, this is likely a sound approach. So, what does Article IX say? Continue reading


Testimony to House Space Subcommittee

What follows is my written testimony to the House Space Subcommittee on the role the Outer Space Treaty plays in the regulatory responsibilities of the United States.  It’s long, and much of it will be familiar to regular Ground Based readers, but there are some new thoughts regarding paths forward, and it puts together what I have covered here over the past months.

Testimony of Laura Montgomery

Before the Committee on Science, Space, and Technology

Subcommittee on Space

Regulating Space: Innovation, Liberty, and International Obligations

March 8, 2017, Rayburn Building


Chairman Babin, Ranking Member Bera, and Members of the Subcommittee, thank you for inviting me to participate in this important discussion and to address the role Article VI of the Outer Space Treaty plays in the regulatory responsibilities of the United States. 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 claim Article VI of the 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,” to interpret this as forbidding unauthorized, private space activity is wrong 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. And, finally, Article VI is not, under U.S. law, self-executing, which means that it does not create an obligation on the private sector unless Congress says it does.

In order to put to bed the regulatory uncertainty arising out of these 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 Article VI. Continue reading


Planetary Protection and Its Applicability to the Private Sector

I was going to title this “Does Planetary Protection Apply to the Private Sector?” However, various corners of the internet mock the use of questions in headlines, so I was too chicken. But, at the end of the day—or perhaps of the century—that is the question; and in the United States the answer must come from Congress.

Background Article IX of the Outer Space Treaty provides that States Parties must pursue their studies and explorations so as to avoid “harmful contamination” of the moon and other celestial bodies and “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.” As a science agency that is part of the U.S. Government, NASA has interpreted this to mean that its missions must not only avoid what the ordinary person might consider harmful contamination, but microbial contamination as well, limiting the presence of bacterial spores on any surface to no more than 300,000. Accordingly, NASA requires the sterilization of its spacecraft to avoid bringing microorganisms to Mars. ESA, the European Space Agency, follows similar measures.

These measures are expensive. ESA describes the creation of clean rooms. NASA bakes its spacecraft. The space agencies spend money on preparing protocols, training technicians, sampling, testing, and devising new and more stringent requirements. Although it is difficult to find information about the costs of planetary protection, one expedition cost somewhere between $80 to $100 million in 2003 dollars.

People are full of microorganisms. I’m no biologist, but I think there are far more than 300,000 bacterial spores on the surface of the human body, never mind what’s inside us. Are we planning to prohibit people on Mars? Probably not. I hope not.

The question does, however, highlight the existence of competing interests. Science agencies want to do science. They have interpreted the directive against “harmful contamination” to mean no harmful contamination to science. The space agencies have now had decades to perform their scientific studies and exploration, and others, including commercial actors, are interested in going to Mars as well. This means that other human interests aside from science will take the stage. Those interests may range from space settlement, with its attendant needs for air, agriculture (albeit in high-tech greenhouses), and manufacturing, to tourism, leisure, art, and mining.

The Issue

These interests are not obviously less important than the question of whether there is life on Mars. That’s an important issue, even if the life found is less complex than Edgar Rice Burroughs’ Tars Tarkas. The question is, who decides?

Congress decides. Continue reading