New Space Race

August 4, 2017 – Volume 27, Issue 28
Is the U.S. falling behind Russia and China? By Patrick Marshall

Current Situation

Regulatory Debate

The United States is the only country where private aerospace companies play a significant role in space, and that role is expanding rapidly. Perhaps not surprisingly, a vigorous debate is unfolding about how much the government should regulate these companies’ activities in space.

Article 6 of the 1967 Outer Space Treaty requires that participating countries provide “continuing supervision” of private space-related activities.94 Some experts say the U.S. government regulates those activities so weakly that it may be violating the treaty.

“The United States has clear rules controlling the export of sensitive space technologies on Earth, but lacks clear rules for private-sector operations in space,” wrote Pace, of the Space Policy Institute. “This has caused some countries, such as Russia, to question whether private U.S. space companies are being supervised properly as required by international law. The United States can and should create a supportive regulatory regime for commercial space activities, but at present there is no clear, central authority for doing so.”95

Matthew P. Schaefer, co-director of the Space, Cyber and Telecommunications Law Program at the University of Nebraska, warned a Senate subcommittee in May that unless the United States takes “minimal steps” to comply with Article 6, U.S. aerospace companies “may face foreign retaliation in the form of denying access to customers or partners, and investors from abroad may shy away as well.”96

A resupply ship operated by Orbital ATK (NASA/Mark Garcia)  
A resupply ship operated by Orbital ATK, an aerospace firm in Virginia, prepares to dock with the International Space Station on April 22. Some analysts and industry leaders say the nation's growing number of private-sector companies — rather than NASA — should handle deep-space exploration. (NASA/Mark Garcia)

In addition, he said, the United States could not then insist that foreign governments “not harmfully interfere with U.S. commercial activities” in space.97

Other experts, however, say the treaty leaves it up to each country to define “continuing supervision.”

“How a country chooses to assure that its citizens do not violate these provisions is completely up to that country,” James E. Dunstan, a senior adjunct fellow at TechFreedom, a technology policy think tank in Washington, and Berin Szoka, TechFreedom's president, told the same Senate panel where Schaefer testified.98

While the Outer Space Treaty does not specify the type or degree of oversight countries should exercise over private-sector activities, industry leaders say uncertainty about the regulatory environment is bad for business. “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,” Michael Gold, vice president of Space Systems Loral, a Palo Alto, Calif., company that designs and builds satellite and spacecraft systems, said at the hearing.99

U.S. regulatory responsibilities are clearly defined. The Federal Aviation Administration oversees launches and re-entries of spacecraft, the Commerce Department licenses commercial satellites, and the Commerce, State and Defense departments oversee export controls and licensing of strategic technologies.100

Some industry advocates call that arrangement complex and unpredictable. “The problem … is not a ‘regulatory gap’ for current space activities, but rather a patchwork regulatory system that is complex, nontransparent and extremely expensive to navigate,” Dunstan and Szoka told Congress. “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.”101

Several free-market advocates want “permissionless approval” for commercial space activities.

“I urge the Congress to consider blanket authorization for all nongovernmental operations in space that do not cause tangible harm to other parties, whether foreign or domestic, in their peaceful exploration and use of outer space,” Eli Dourado, director of the Technology Policy Program at George Mason University, said at a House committee hearing in March. “Such an approach would meet our treaty obligations while maximizing the scope for innovation and experimentation in space.”102

But aerospace firms are not equipped to know whether their space activities might cause harm, other experts say.

“Few if any individual operators have the ability to either assess the risk their activities may pose to other space flight missions, especially U.S. or other government missions, nor the resources or ability to ameliorate the damages their actions might have on those missions,” Douglas L. Loverro, former deputy assistant secretary of Defense for space policy, said at the House hearing. “And to ask them to try to develop those capabilities would be a greater constraint to their entrepreneurial activities than some well-designed government-sponsored measures.”103

Some policymakers have called for amending the Outer Space Treaty to clarify regulatory responsibilities in space and better support the activities of private companies. Sen. Ted Cruz, R-Texas, said in April that 1967 was “a different time and era” and called on Congress to evaluate how a treaty enacted 50 years ago “will impact new and innovative activity within space.”104

Most experts, however, see little chance the treaty will be modified or replaced. Even if U.S. policymakers agreed to amend the treaty, other space powers would be suspicious of their motives, said CSIS’ Lewis. “People always think that it is the United States in some way trying to create opportunity for itself,” he says.

Muncy of PoliSpace says the pact does not need to be changed. Instead, he says, the State Department needs to ensure the treaty's provisions are implemented in ways that benefit the United States.

National Space Council

The Trump administration's announcement in June that it will resurrect the National Space Council — with Vice President Mike Pence in charge — to oversee all U.S. activities and policies in space has also stirred controversy. The original council, established in 1958, was disbanded in 1973, revived in 1989 and disbanded again in 1993.105

Muncy of PoliSpace says the new council will give President Trump the information he needs to tell individual agencies overseeing space-related activities “whether or not they are actually holding up their end of the bargain to serve the national interest beyond their institutional interest.”

When the idea of reviving the council was floated in December, Apollo 11 astronaut Edwin E. “Buzz” Aldrin Jr. told a reporter it would be “absolutely critical in ensuring that the president's space priorities are clearly articulated and effectively executed.”106

James Reuter, deputy associate administrator at NASA's Space Technology Mission Directorate, said in May that a new National Space Council might improve communication between the White House and Congress. “There's a lot of congressional guidance on the programs [that members of Congress] fund, and they don't always align with the administration's viewpoints,” he said. “Perhaps a space council could help us.”107

Air and Space Museum historian Logsdon said earlier versions of the council failed to prove “its superiority as an organizational approach to developing a space strategy or coordinating the space activities of executive agencies.” After it was revived in 1989, he wrote, the council “managed to alienate most executive agencies.”108

Aaron Oesterle, project manager at the Space Frontier Foundation, which supports rapid action to colonize other planets, also is skeptical. “Taking all of the various space stuff and putting it under a single regulatory authority is not viable in the long term, and in the short term it is so disruptive,” he says.

Go to top
Go to Outlook

[94] “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” op. cit.

[95] Scott Pace, “Regulating Outer Space: Making Space Commerce a Priority,” Foreign Affairs, May 12, 2016,

[96] Testimony of Matthew P. Schaefer before the Senate Commerce, Science, and Transportation Subcommittee on Space, Science, and Competitiveness, May 23, 2017,

[97] Ibid.

[98] Testimony of James E. Dunstan and Berin Szoka before the Senate Commerce, Science, and Transportation Subcommittee on Space, Science, and Competitiveness, May 23, 2017,

[99] Testimony of Michael Gold before the Senate Commerce, Science and Transportation Subcommittee on Space, Science and Competitiveness, May 23, 2017,

[100] Canis, op. cit., p. 14.

[101] Testimony of James E. Dunstan and Berin Szoka, op. cit.

[102] Testimony of Eli Dourado before the House Science, Space, and Technology Subcommittee on Space, “Creating an Environment of Permissionless Innovation in Outer Space,” March 8, 2017,

[103] Testimony of Douglas L. Loverro before the House Science, Space, and Technology Subcommittee on Space, March 8, 2017,

[104] Jeff Foust, “Cruz interested in updating Outer Space Treaty to support commercial space activities,” Space News, April 26, 2017,

[105] Sarah Schlieder, “Trump Is Bringing Back The National Space Council … What's That?”, June 7, 2017,; “NASA Statement on National Space Council,” news release, NASA, June 30, 2017,

[106] Leonard David, “Playing the Space Trump Card: Relaunching a National Space Council,”, Dec. 29, 2016,

[107] Jeff Foust, “Executive order creating National Space Council expected soon,” Space News, May 2, 2017,

[108] John Logsdon, “Is creating a National Space Council the best choice?” The Space Review, Jan. 3, 2017,

Document APA Citation
Marshall, P. (2017, August 4). New space race. CQ researcher, 27, 653-676. Retrieved from
Document ID: cqresrre2017080405
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May 23, 2003  NASA's Future
Jul. 23, 1999  New Challenges in Space
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Dec. 24, 1993  Space Program's Future
Mar. 29, 1991  Uncertain Future for Man in Space
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Nov. 13, 1968  Goals in Space
Jun. 29, 1966  Future of Space Exploration
May 08, 1963  Moon Race Controversy
Jun. 27, 1962  Peaceful Use of Outer Space
Nov. 01, 1961  Space Exploration
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