The Outer Space Treaty at 50
by Christopher D. Johnson
|Many experts in international law believe that the fundamental provisions of treaty are so well-observed and respected that they exist as an entirely different set of legal rules, outside of the textual treaty, as “customary” international law.
At signing ceremonies in Moscow, London, and Washington, 62 countries participated in the political act of signing the Outer Space Treaty. Its full title bears repeating: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Rather than a treaty solely about space exploration and human spaceflight, the treaty was principally developed with international peace and security in mind. At the Washington signing event, President Lyndon B. Johnson spoke about the security and non-armament aspects of the treaty and how it would help lessen the threat of conflict.1
The Outer Space Treaty entered into force as a binding legal instrument between signatory states on October 10, 1967. Fifty years later, 104 states of the international political order are now parties to the Outer Space Treaty. These include major space powers like the US, Russia, China, Japan, and the European members of the European Space Agency (ESA), as well as emerging space powers like Brazil and India. States that merely use or benefit from space technologies and capabilities have also signed the treaty in order to avail themselves of its rights. Many experts in international law believe that the fundamental provisions of treaty are so well-observed and respected that they exist as an entirely different set of legal rules, outside of the textual treaty, as “customary” international law.2 And, as customary international law, the Outer Space Treaty reflects rules that bind even those states who are not formal parties to the treaty itself.
As a study in successful treaty-making within the UN system, and especially against the backdrop of Cold War geopolitics, the Outer Space Treaty is an excellent example of skilled diplomacy and negotiation for mutual benefit and for a peaceful outcome. And while the treaty was negotiated within the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), its development was largely a conversation between ideologically-opposed geopolitical rivals in Washington and Moscow, each offering and promoting their own draft treaties to the larger committee.3
The diplomatic process that lead to the finalization of the treaty was one where the parties agreed to the governance framework for those activities they could mutually agree on, where they refrained from regulating activities where agreement could not be met, and where they remained silent on activities in space they either did not want to legislate on, or perhaps could not envision or anticipate. As a relatively short treaty of 17 articles, it’s also worth remembering that this is a treaty on “principles” (the word is even in the title), and is therefore clearly intended to be neither exhaustive nor comprehensive. Indeed, the subsequent UN treaties on space developed were envisioned to expand, refine, and clarify provisions of the Outer Space Treaty.
Perhaps more importantly, and worthy of remembering in today’s still-challenging geopolitical environment, this process clearly shows the negotiating states being resourceful, creative, and pragmatic in their development of rules. It also required offering compromises that involved unique solutions to what must have seemed like intractable divides in worldview between the individualist and enterprising West and the collectivist and state-centric East.
Many of the ideas in the Outer Space Treaty were adopted from either earlier treaties on newly accessed environments (e.g., the Antarctic Treaty of 1959) or treaties concerning new technologies (e.g., the 1963 Nuclear Test Ban Treaty). An earlier product of COPUOS, United Nations General Assembly (UNGA) Resolution 1962 “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space” from December 1963, also contains provisions that later became articles of the Outer Space Treaty. Among these are the foundational principles of space law including the freedom of access to space, the non-appropriation of space and celestial bodies, the applicability of international law to space, and the direct international responsibility of states for their national activities. This principle, contained in Article VI of the Treaty, reflects a major compromise between the USSR and the US, and a unique innovation in international law.
|Here, at the dawn of the space era, one side wants to encourage the private sector, while the other wants to prohibit it outright. Could such a divergence in views be solved today?
The American approach to space exploration envisioned that private commercial entities would play a crucial role in partnerships with governmental programs. As such, the American position was to allow for private entities to engage in space activities. However, the Soviet approach to international law stressed that states are the final and ultimate responsible entity, and therefore states should be the only actors in outer space (an international zone outside of state territory.) A Soviet draft even required “All activities of any kind pertaining to the exploration and use of outer space shall be carried out solely and exclusively by States.”
How many other times in the discussion between states would a difference in views as wide and fundamental as this simply result in deadlock? Here, at the dawn of the space era, one side wants to encourage the private sector, while the other wants to prohibit it outright. Could such a divergence in views be solved today? How was this issue solved in the Cold War climate of the 1960s?
The negotiators were able to come to an ingenious compromise. The end result was that private enterprise was permitted in space, but the appropriate authorizing state is directly internationally responsible for this commercial (or otherwise non-governmental) activity. States have the affirmative obligation for “authorization and continuing supervision” of non-governmental entities in space and for ensuring their conformity with international law. 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.
This clever compromise allowed the Soviets to reaffirm the primacy of the role of states in outer space, while simultaneously allowing the Americans to develop a private commercial space sector.
Rather than discussing the other fundamental principles enshrined in the Outer Space Treaty,4 in light of January 27 being the anniversary of the US offering its signature to a legally binding obligation on the international plane, it may be insightful to consider the usefulness of the treaty as a treaty. In other words, to consider the usefulness and advisability of a binding international legal instrument which explicitly creates rights and obligations, and why a sovereign state would intentionally seek to create and enter into agreements of this sort.
|The agreement contained in Article IV of the Outer Space Treaty reflects an agreement between the US and the USSR, as obligations restricting their freedom of action. Why would a state intentionally place a restriction on itself?
As mentioned, many of the provisions of the Outer Space Treaty were borrowed from previous UN General Assembly resolutions. But as resolutions alone, these documents were non-binding and did not require states to alter their behavior. And while UN General Assembly resolutions are not normally law-making exercises, they do record the commonly-held expression of intentions by the states in the General Assembly, and make political recommendations to UNGA Members (or to the UN Security Council).
UNGA Resolutions can also set priorities and mold opinion for inclusion in subsequent treaties. The prohibition on the placement of nuclear weapons and other weapons of mass destruction in outer space or their installation on celestial bodies was taken from UNGA Resolution 1884 of 1963. The resolution:
[s]olemnly calls upon all States… [t]o refrain from placing in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, installing such weapons on celestial bodies, or stationing such weapons in outer space in any other manner.
This prohibition was transferred to the Outer Space Treaty, and thereby remade into international treaty law. As President Johnson pointed out in his recommendation to Congress to ratify the Outer Space Treaty, “the realms of space should forever remain realms of peace.”5 He continued:
We know the gains of cooperation. We know the losses of the failure to cooperate. If we fail now to apply the lessons we have learned, or even if we delay their application, we know that the advances into space may only mean adding a new dimension to warfare. If, however, we proceed along the orderly course of full cooperation we shall, by the very fact of cooperation, make the most substantial contribution toward perfecting peace.6
The agreement contained in Article IV of the Outer Space Treaty reflects an agreement between the US and the USSR, as obligations restricting their freedom of action. Why would a state intentionally place a restriction on itself? Isn’t it better to merely keep outer space as unregulated as possible? Since there were only two states then capable of venturing into outer space, why did either state agree to rules governing its actions? It may seem counterintuitive, but the deeper rationale behind security arrangements like this is that the parties actually benefit in the long-term from placing mutual restrictions on their behavior.
Agreeing to restrict your freedom of action has deep links to the usefulness or utility of law itself. Consider driving a car: in order to get a license, you agree to observe certain rules, and the license signals your obligation to obey these rules. However, sometimes adhering to those rules is not only inconvenient (such as stopping at stop signs when there’s nobody else at the intersection), it is also against your short term-interests (you have an appointment or will otherwise suffer from observing the rules.)
|Today, the current absence of nuclear weapons or other weapons of mass destruction in outer space attests to the bargain struck in the Outer Space Treaty being a successful one, where security (and the liberty and freedom possible with security) were furthered by the mutual exchange of restrictions that states placed upon themselves.
However, agreeing to operate within a system where your freedoms are sometimes restricted can have the effect of actually increasing your freedom over the long term. Wouldn’t you rather live in a state where traffic laws exist, and other drivers agree to observe them? Isn’t that system preferable to living in a state without traffic rules? Indeed, a system with traffic rules increases not just freedom in general, but overall safety and orderliness.
Consequently, because the system with rules is preferable to the system without rules, your willingness to use the roads allows you to travel with greater security and ease. You are better assured of the likelihood that you will get to your intended destination without some other driver crashing into you. Knowing that safe travel is likely, you are more willing to take trips more often, and to farther destinations.
Your freedom is actually increased over the long term because you are willing to suffer temporary, short-term restrictions such as inconvenient red lights. Long-term rationality warrants adherence to efficient systems of law. Correctly-balanced rules help increase long-term benefits (like safety and security) that would otherwise be unattainable without a system of rules.
It is this rationale that also underpins international treaty-making. Today, the current absence of nuclear weapons or other weapons of mass destruction in outer space attests to the bargain struck in the Outer Space Treaty being a successful one, where security (and the liberty and freedom possible with security) were furthered by the mutual exchange of restrictions that states placed upon themselves. The more than 50 years of peaceful uses of outer space, including cooperation between states who remain rivals elsewhere, are the rich long-term gains resulting from the Outer Space Treaty.
The occasion of Outer Space Treaty’s 50th anniversary across 2017 will likely be noted at various events around the world, including this summer at the UN Committee on the Peaceful Uses of Outer Space (COPUOS) in Vienna, Austria.
In recognition of the signing ceremony held in Washington, the American Society of International Law (ASIL)’s Space Law Interest Group will be hosting an event on Friday, January 27—50 years to the date of the signing ceremonies in Washington, London, and Moscow—at Georgetown University Law Center. Speakers and attendees will use the occasion to tell the US story at COPUOS, consider technical details such as treaty signature, ratification, and acceptance, how to understand and interpret the treaty, and will consider broader security-related issues related to outer space and international governance.