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The Outer Space Treaty may have but the brakes on more ambitious human exploration and development of space. (credit: NASA)

Still crazy after four decades: The case for withdrawing from the 1967 Outer Space Treaty

This year is the 40th anniversary of the Treaty on Principles Governing the Activities of States in the Exploration of Outer Space Including the Moon and Other Celestial Bodies, more commonly known as the 1967 Outer Space Treaty. Born out of anxiety about the Cold War and excitement about the Space Age, the agreement is a tribute to the ability of diplomats to draft international law that is simultaneously effective but bad. Successful in preventing states from claiming sovereign territory in outer space the treaty also hobbled space exploration and development. Today, human activity in outer space is confined to low Earth orbit and unmanned space exploration of the solar system proceeds at a leisurely pace. The Space Age has sputtered to a crawl and the 1967 Outer Space Treaty deserves a large measure of the blame.

Anti-commons and arrogance

Fear gave birth to the international legal regime for outer space: the ever-present fear of a nuclear war between the United States and Soviet Union, the fear that either superpower would achieve a decisive military technological advantage over the other in outer space, the fear that competition for the best “real estate” on celestial bodies might itself result in war between the superpowers, and the fear that the superpowers might cooperate in a duopoly over all of outer space. That space exploration and development had much to offer humanity was largely a rhetorical rather than a practical imperative in drafting the agreement establishing the international legal regime. Instead the practical imperative was to prevent by denial.

The Space Age has sputtered to a crawl and the 1967 Outer Space Treaty deserves a large measure of the blame.

The core legal principle of the 1967 Outer Space Treaty declared that everywhere beyond the atmosphere to be res communis, an international commons rather akin to the “international waters” of the open oceans on Earth, rather than terra nullius, the sort of territory that is unclaimed yet claimable by states as sovereign territory. In what was then stirring, and today preposterous, language of the agreement, all of outer space was declared the “Common Home of Mankind” to be explored and exploited by all countries and for the benefit of all humanity.

There are two patently obvious flaws in the 1967 Outer Space Treaty, one tragic and the other silly. The tragic flaw is that it created an “anti-commons.” The general problem is that establishing a commons runs the risk of creating perverse incentives. Where the commons is easy to exploit the likely result is the degradation of its renewable resources. That much has been understood by public policymakers at least since publication of Garret Hardin‘s influential essay “The Tragedy of the Commons.” Less appreciated is that establishing a commons can also establish an “anti-commons.” Eliminating the possibility of reaping rewards from a desired activity discourages that desired activity. When the 1967 Outer Space Treaty eliminated the possibility that states could claim territory on the final frontier it also extinguished an important motivation for states and private firms to engage in exploration and development. Had the policy purpose of the treaty been wilderness preservation in outer space then today it would be declared a smashing success. Beyond low Earth orbit, outer space remains a wilderness that benefits no one except astronomers and stargazing lovers. Yet the ostensible policy purpose of the agreement was to encourage space exploration and development in a manner that benefits humanity as a whole. As such, the 1967 Outer Space Treaty was an abysmal failure. While there are other reasons for the effective closing of the space frontier beyond low Earth orbit with the last Apollo Missions to the Moon—the relaxation of Cold War tensions in the 1970s gave the superpowers less reason to compete and their other budget priorities competed with space programs—the diplomats and politicians who foisted the treaty onto an unwitting humanity in 1967 deserve much of the credit. Their negotiations resulted in a near-quarantine of humans on Earth and low Earth orbit and only anemic efforts to explore our solar system via unmanned space programs.

Depriving states of the right to claim sovereign national territory on solid celestial bodies has discouraged more energetic space exploration and development in the same manner that depriving property developers of the right to purchase real property would discourage their investment. One need to not applaud each and every property development project to recognize the economic value of property development to society, and the same may be said of the efforts of states in claiming and governing new territories. That idea that states are no longer interested in claiming new territory is belied by the Russian Federation’s recent claim under the Convention on the Laws of the Sea to the 1.2 million square kilometers of the Lomonosov Ridge in the Arctic.

The second flaw in the treaty is that its assertion of subject matter authority is absurdly, mind bogglingly large. Although only a small minority of the states that signed the treaty back in 1967 can even today launch satellites into orbit or send robotic probes to any celestial body, and although only three of the states that signed the treaty can today launch humans into orbit, their diplomatic representatives nonetheless felt competent in collectively asserting legal authority and ownership over everything in the universe beyond the Earth. Given the primitive nature of space technology available to humanity then and now, an agreement covering only what was within the solar system would have been sufficient. Comparison of the relative astronomical distances drives home this point. The radial distance from the “edge” of our solar system, from the outer boundary of the Kuiper Belt through the Sun to the opposite outer boundary of the Kuiper Belt, is a distance of 100 AU (Astronomical Units), or 100 times the distance from the Sun to the Earth. Although this 15 billion kilometer distance seems enormous, it is miniscule in cosmic terms. That 100 AU is a mere .0016 of a light-year. The most recent estimate of the radial distance from one edge of the universe to the other is 180 billion light-years.

Had the policy purpose of the treaty been wilderness preservation in outer space then today it would be declared a smashing success. Beyond low Earth orbit, outer space remains a wilderness that benefits no one except astronomers and stargazing lovers.

Astronomers in 1967 would have estimated the size of the universe to be slightly smaller than that most recent estimate, but what could a few tens of billions of light-years, more or less, mean to political decision-makers intent on solving their parochial planetary squabble? Identifying a comparably sweeping assertion of legal authority over the unknown and unreachable in history is history. The May 4, 1493 Papal Bull from Pope Alexander VI granting all of the territory in the Americas to Spain and the rest of the territory of the “southern regions of the Ocean Sea” to Portugal, including all the peoples in those regions who were still unaware of the existence of Spain and Portugal, appears rather modest by comparison. Hopefully, representatives of any extraterrestrial civilization humanity might encounter in the future will find our species’ mid-20th century arrogation of legal authority over the entirety of the universe to be an expression of cultural immaturity rather than of our inherent aggression and stupidity.

The 1967 Outer Space Treaty may expire as controlling international law well before humanity ever encounters any extraterrestrials, indulgent or otherwise. Any resumption of human exploration on celestial objects is liable to expose both territorial ambition and the flaws of the treaty. The recent emergence of competition between the United States and China to return to the Moon and establish permanent bases will compel both interest in establishing national control over our satellite’s better territories and their resources. Although NASA has encouraged participation by the other major national space programs in its projected Moon base, participation by the Chinese is clearly unwelcome. Planting rival Moon bases might be sufficient to cause one of the other of the powers to renounce (denounce) the agreement and prompt resurgence of energetic human space exploration and perhaps development. Fortunately, the 1967 Outer Space Treaty has an easy to operate escape hatch: signatory states are free to withdraw from the agreement within one year of giving notice. American, Russian, or Chinese withdrawal would reduce the treaty to irrelevance.

Arguments against withdrawal answered

Several arguments are advanced against withdrawal from the treaty, seven of which are neatly summarized by Wayne White in an essay in the 2000 book Space: The Free-Market Frontier. The first argument is that the treaty has become customary international law, in effect that other states have come to rely on the terms of the treaty to such an extent that it is now established law among states regardless of the wishes of individual states that might wish to withdraw. The rejoinder to this argument is that while forty years may have passed since the treaty entered into effect, states have come to rely on it in any the most abstract sense. No state has undertaken activities even remotely capable of asserting a claim to national sovereignty over any celestial body since the end of the Apollo Program and there are only five spacefaring powers currently capable of unmanned missions to other celestial bodies: the United States, Russia, the European Space Agency, China, and Japan.

The second argument is that competition for territory in space could cause military conflict as it did competition between the powers on Earth in previous centuries. The argument misunderstands history and thus makes a poor analogy. In fact, the gunpowder empires found more reasons and locations to wage war close to home much more often than in distant colonial possessions. Imperial competition for vast amounts of the Earth’s surface was often resolved peacefully. In the late 18th century and continuing into the 19th century Britain, the Netherlands, France, Germany, and the United States divided Australasia and the central island Pacific without war. Britain, the United States, and Imperial Russia successfully negotiated a resolution of their claims to northwestern North America in the mid 19th century without war. During the “Scramble for Africa” Britain, France, Belgium, Germany, Portugal, and Italy divided sub-Saharan Africa without fighting one another, the results of which were recognized at the Congress of Berlin. To be sure, wars were fought in these new colonial territories but they were wars between colonizers and the colonized. Thus, any future competition for sovereign territory on celestial bodies is highly unlikely to lead to war because spacefaring states are capable of negotiating their different claims and because there are no extraterrestrial natives anywhere else in the Solar System who might object to national appropriation. Our solar system would be a more interesting place if Martians did exist but they are conspicuous by their absence.

The third argument is that it would be difficult or impossible to draw territorial boundaries in outer space. The problem with this argument is that it makes no distinction between solid celestial objects like the planets, moons, or asteroids and the hard vacuum of space. Rather than treat all of outer space as res communis, solid celestial objects could be treated as terra nullius and the hard vacuum as res communis. Solid celestial objects could claimed as sovereign territory without claiming all of outer space just as islands or parts of islands have been claimed on Earth without claiming all of the oceans in which they rest.

Any future competition for sovereign territory on celestial bodies is highly unlikely to lead to war because spacefaring states are capable of negotiating their different claims and because there are no extraterrestrial natives anywhere else in the Solar System who might object to national appropriation. Our solar system would be a more interesting place if Martians did exist but they are conspicuous by their absence.

The fourth argument is that prohibiting states from establishing territorial sovereignty over celestial bodies will make “the transition to self-government” easier once space settlers become self-sufficient. The first problem with the argument is that the assumption that self-government requires self-sufficiency or must wait for self-sufficiency is incorrect. There are no contemporary examples of autarky, of “self-sufficient” national economies able to produce all of the goods and services its citizens consume. Economic interdependency or dependency does not prevent citizens from participating in their own self-government. The second problem is that the argument is illogical in committing the familiar fallacy of the excluded middle. Between national appropriation of a celestial body by a spacefaring power on Earth as its sovereign territory and declarations of independence as a sovereign state by settlers on a celestial body are a range of possible legal-political institutional relationships between a space-faring power and its settlers. A cursory survey of a contemporary world political map reveals numerous islands and island groups distant but locally self-governing sovereign territories of metropolitan states: Bermuda, Gibraltar, Hawaii, Martinique, New Caledonia, Reunion, Saint Pierre and Miquelon are examples. Other insular nations such as Aruba, Greenland, Faeroe Islands, Netherlands Antilles, Niue and the Northern Mariana Islands enjoy even greater autonomy. The Federated States of Micronesia is sovereign and yet closely linked to the United States through a Compact of Free Association. The third problem with the argument is that the difficulty of colonies achieving independence as a sovereign state is exaggerated. For example, notwithstanding the sort of epic anti-colonial wars that gave the United States and Vietnam independence, dozens of former British and French colonies achieved independence through negotiation rather than by violence. Notwithstanding science fiction portrayals of politically alienated, economically exploited space settlers like those in Robert A. Heinlein’s libertarian novel The Moon is a Harsh Mistress, actual space settlers will have to be highly-trained professionals whose exit options make political tyranny and economic exploitation effectively impossible. Although it may lack sufficient romantic drama for libertarians, the passage of the British North America Act that gave Canada its independence is probably a better historical reference point for some future independent state on a celestial body than is the American Declaration of Independence.

The fifth argument is that competition between national legal codes used to govern individual space settlements or facilities in close proximity would lead to the development of better law through competition. What is assumed here is that a government agency responsible for establishing a space settlement or facility will elect to apply the legal code of the sponsoring spacefaring state while private firms establishing a space settlement or facility might elect to apply the national legal code they deem most conducive. Although the resulting legal uncertainty and unnecessary legal disputes produced by patchwork fragmentation of the applicable legal system across a celestial body bring joy to the hearts of lawyers (Wayne White is by conscience an attorney) it would be loathed by investors.

The sixth argument is that the treaty does not provide for “expensive governing bodies,” that it is good because it lacks formal institutions to adjudicate and enforce disputes between state parties. The obvious problem with this argument is that this “blessing” would not be lost through unilateral withdrawal of states. Should disputes over territorial claims on celestial bodies arise, they could be resolved the old fashioned way: negotiation between sovereign states.

White’s seventh argument is that there is little about the 1967 Outer Space Treaty that is “really objectionable.” This is more conclusion than argument and, as shown by the previous discussion of the anti-commons, is also plainly false. By discouraging space exploration and development it is in fact highly objectionable.

Conclusion

One of the many explanations for the absence of contact with extraterrestrial civilizations and a theme in science fiction is the proposition that humanity has been “quarantined” because of its immaturity and/or dangerous nature. We have been denied contact, in effect, until we change our ways and perhaps our nature. As with many of the other explanations for our isolation in the universe the idea cannot be tested, as yet at least. Any hidden extraterrestrial civilization observing our species need hardly have bothered. Humanity has done a fine job of confining itself to Earth and low Earth orbit and of undertaking only sporadic and anemic space exploration of other celestial bodies with unmanned vehicles.

The 1967 Outer Space Treaty deserves much of the credit for reducing space exploration and development from a toddle to a crawl after the Apollo program. Drafted with the best intentions by fearful diplomats, it keeps humanity in its cradle, from which it can only gaze about its nursery room frustrated at the inability to touch the toys it sees. We know how to free ourselves from this situation: unilateral withdrawal from the treaty by one of the major spacefaring powers.


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