Insight - 2017 and the Fiftieth Anniversary of the Outer Space Treaty

Monday, January 16, 2017

By Christopher D. Johnson, Space Law Advisor

This new year brings the fiftieth anniversary of the Outer Space Treaty, the foundational and still most important international legal instrument governing humankind’s activities in outer space. It is safe to say that every activity conducted in outer space - whether by space agencies and militaries or by private companies and universities - is done in the context of this binding legal instrument. Negotiated during the tense and uncertain Cold War geopolitical environment of the mid-1960s, the Outer Space Treaty continues to serve as an impressive and inspiring case study in resourceful, ambitious, and successful diplomacy.

Unsurprisingly, the major forces in the drafting and negotiation of the Outer Space Treaty were also the major players in space at that time: the United States and the Soviet Union. How could these two ideologically-opposed nuclear superpowers come to an agreement limiting their actions in outer space, a domain threatened by the risk of war? Both states realized the potential consequences of their competition extending into space and therefore sought to limit or exclude provocative or dangerous military activities in space, while also providing a framework for peaceful activities in space.

Borrowing from the purely political commitments in UNGA Resolution 1884 of 1963, Article IV of the Outer Space Treaty requires that states “not place in orbit around the Earth objects carrying nuclear weapons or any other weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.” The article further requires that the “Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes.”

These mutually-exchanged obligations to refrain from action significantly curtail and formally restrict activities that both sides were exploring for military advantage. The restrictions took the most provocative and potentially threatening military activities “off the table,” while still permitting space activities such as remote sensing, communications, and space exploration. The rationale behind this is that limiting one’s potential actions can actually increase one’s security, as it ensures that these activities are formally prohibited by international law and that parties to the treaty have publicly signalled to others that they will refrain from performing them. In this manner, rather than restricting a state’s freedom and liberty, agreeing to refrain from certain actions actually increases liberty and freedom by increasing the reliable and known domains where peace is ensured by law. Over the years, these specific restrictions on military activity have had the effect of increasing the freedom to explore and utilize space for peaceful purposes. This approach underpins the very concept of the rule of law: the idea that we actually benefit from operating with systems of rules that sometimes restrict certain behavior. To date, Earth orbit is free from weapons of mass destruction, and no physical conflict in space has occurred. It is reasonable to believe that the Outer Space Treaty helped this to happen.

Another difficulty faced by the negotiators of the Outer Space Treaty was the treatment and regulation of private (non-state) activities in outer space. The US approach to outer space envisioned the private sector as an integral partner in accessing, exploring, and using outer space. As such, it felt that private commercial activities should be permitted. The Soviets, however, did not want to allow commercial actors unlimited and unregulated freedom in space. The two positions stood in stark opposition. Proposed draft language from the Soviets for an earlier UN resolution on space (from which the treaty borrowed) even read “all activities (...) shall be carried out solely and exclusively by States.” The diplomats negotiating the treaty arrived at a creative and pragmatic compromise, where non-governmental activities in space were allowed, so long as the appropriate state party to the treaty provided “authorization and continuing supervision.” Article VI of the treaty now reads

“States Parties to the Treaty shall bear international responsibility for national activities in outer space…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 supervisions by the appropriate State Party to the Treaty.”

In other words, private enterprise is permitted in outer space, but the appropriate authorizing state party is directly responsible for this commercial activity. The Soviets were able to reaffirm the primacy of the roles of states in outer space, while the Americans were able to support the development of a private sector. Compromises of mutual benefit like this are the hallmark of resourceful and successful diplomacy. Today, anyone who engages in or benefits from space activities should appreciate the dexterity and skill employed in crafting this compromise.

Over the last fifty years, the Outer Space Treaty has gained widespread adoption. It was adopted by the UN General Assembly on Dec. 19, 1966 and opened for signature by states on Jan. 27, 1967. Signing ceremonies were held in Washington, London, and Moscow. Newsreels at the time highlighted the fact that the Outer Space Treaty was focused on international security and was intended to prevent war in space or the use of outer space for war on Earth. The Outer Space Treaty entered into force as an international legal instrument on Oct. 10, 1967. Today, 104 states from around the world are now official States Parties to the Outer Space Treaty. Additionally, many of its provisions are so well-established and observed that is said to reflect “customary” international law and are therefore binding even on those states which have not formally signed the treaty.

Looking to the future, many diverse actors are planning increasingly novel and ambitious activities in outer space. At the same time, reliance on space for national security and military activities, along with persistent geopolitical tensions, has brought back the worrisome spectre of conflict on Earth extending into, from, or through outer space. To realize a stable and secure future in space and on Earth, it is worth reflecting on the strengths of the Outer Space Treaty and the resourceful and ambitious diplomacy which lead to its finalization and subsequent success.

Throughout 2017, the Secure World Foundation and our partners in civil society (including governments, space agencies, academia, professional groups such as the American Society of International Law (ASIL), along with international organizations such as the United Nations Office for Outer Space Affairs (UNOOSA)), will reflect on and celebrate the success of the Outer Space Treaty and the half-century of peaceful, prosperous, educational, and inspiring uses of outer space that it has fostered.