Testimony of Jim Dunstan Before the Senate Subcommittee on Space, Science and Competitiveness

Chairman Cruz, Ranking Member Markey, 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 all our vegetables, we, too, could go into space. Obviously, that hasn’t happened. I was in law school when the Space Shuttle began flying. We were promised flights at least every other week, and that we’d be able to fly experiments for $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 Shuttle died with Challenger.

But space commerce took off anyway — on private vehicles. The industry now nears $350 billion a year, mostly in commercial satellite services. And we’re seeing the dawn of a radical new generation of launch vehicles, with reusable first stages, and fly-back second stages just over the horizon. Launch costs could fall by an order of magnitude. Startups have raised real financing to do everything from on-orbit satellite servicing to asteroid mining.

For these companies, once-esoteric provisions of the Treaty could create real business risks. It’s time Congress finally addresses the relationship between government and private actors under Article VI of the Outer Space Treaty — something I assumed we were going to address imminently when I graduated law school almost 35 years ago.

Article VI makes each country responsible and liable for the activities of all its citizens — and companies — in space. The Treaty also leaves it up to each country to decide how to “authorize” and “supervise” private activity. In other words, Article VI is not “self-executing” in governing private citizens. Just consider the Supreme Court’s decision in Medellin v. Texas, which Chairman Cruz argued successfully as Solicitor General for Texas. Quoting Federalist №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’ with ‘a mere treaty, dependent on the good faith of the parties.’” Article VI falls into the latter category. Thus, even failing to adopt any regulations at all would not violate the Treaty, because there is the “back-stop” of national liability for private citizen activities.

Federal law already authorizes Americans to operate in outer space. Americans have “unalienable Rights … to … Life, Liberty and the pursuit of Happiness,” as the Declaration of Independence put it. The Tenth Amendment made this principle binding constitutional law: “[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 already authorized to pursue those activities. In other words, that which is not forbidden, is permitted.

And 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 FAA/AST, FCC, NOAA, NASA, and the DOD. Entities conducting launches have to answer to both state and local authorities; everything from assessing environmental impact to obtaining permits to transport their vehicles across state and county roads.

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 U.S. Constitution promises me that I can go into space, and precisely because Article VI isn’t self-executing, Congress is in a unique position internationally to show the world that we recognize our liability under Article VI, and our obligations to ensure that our private citizens abide by the self-executing 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. 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 nothing to be gained by re-opening the current treaty regime today. Once the United States demonstrates that the “lightest touch” regime consistent with Treaty requirements can work, then reopening the Treaty might make sense. But doing that 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 Szoka, President of TechFreedom, explores the United States’ responsibilities under Article VI. Thank you again for the opportunity to testify here today, and I look forward to answering any questions you have.