The Outer Space Treaty (OST), frequently described as the ‘constitution’ or cornerstone of space law, was opened for signature fifty years ago today on 27 January 1967. The OST has now been ratified by 104 States and signed by a further 25. It is the most widely accepted of the five major space treaties (although the Rescue Agreement and Liability Convention don’t fall far short.) The full text of the treaty can be accessed on the UN website here.
Arguably the most important aspects of the treaty are found in the first two articles which establish freedom of access and use of space, and prohibit national appropriation of outer space, the moon and other celestial bodies. These establish space as a global commons, analogous (although not exactly) to the oceans and Antarctica. Space is res communis not res nullius.
The Outer Space Treaty was meant to be a ‘framework agreement’ that would be fleshed out by subsequent treaties, like the Rescue Agreement and Liability Convention mentioned above. Furthermore, then President Johnson viewed the Outer Space Treaty primarily as an arms control treaty and considered it the most important development since the Limited Test Ban Treaty of 1963. It was Johnson’s hope that the Outer Space Treaty would help defuse the space race. This Cold War context is important for understanding the background of the treaty.
Today the treaty provides the bedrock upon which the space governance regime sits. The treaty continues to work well, and is widely accepted, with many of its provisions (most notably Articles I and II) generally regarded as having attained the status of customary international law (broadly meaning that all states, even those not party to the treaty are subject to those provisions.) However, it has never been majorly tested and does in places show its age and its origins as a product the Cold War.
Probably the greatest anachronism of the Outer Space Treaty is its lack of provision for commercial actors. This was understandable at a time when there were only six countries with satellites in orbit (USSR, USA, UK, Canada, Italy and France) and all but Telstar were government projects (and Telstar was quite the private-public partnership) and only three with independent launch capabilities (USSR, USA and France.) However, today it seems really out of place. That said, Article VI of the Outer Space Treaty does make states responsible for “national activities in outer space…” and requires “authorization and continuing supervision” of activities of non-governmental organizations in space. In the UK this requirement is met but by the Outer Space Act which requires that operators of British nationality or those operating from the UK obtain a licence from the UK government.
The lack of direct provision has not prevented the development of a vibrant and flourishing commercial space sector, that most of us rely on a regular basis (if only in the form of GPS navigation.) Indeed, the lack of direct provision in the treaty may have allowed this development. Reportedly, the US Ambassador was instructed to avoid raising issues such as property rights in order to avoid conflict with the Soviets and considering that it was this issue that scuppered the Moon Agreement a little over a decade later, this was probably wise. Plus, premature regulatory regimes are a good way of killing an industry before it develops.
Whether or not, fifty years in, we need a new space treaty is somewhat irrelevant. Treaties have largely fallen out of fashion and even before the political earthquakes of 2016 the prospects for a new treaty were slim, to say the least. That said it is important for there to be coordination on the international stage.
There are certainly issue that are in need of attention (and, to be fair, they are, by and large, getting it.) The commercial or ‘New Space’ revolution is dramatically increasing the number of space objects in orbit, which in addition to exacerbating the space debris threat causes other problems for space traffic management (which has been somewhat neglected until recently, if for no other reason than lack of need.) Furthermore, these proposed mega constellations by the likes of Facebook and SpaceX cause headaches for insurance and liability regimes (in the UK for example you’re required to an have up to €30 million insurance policy per satellite, which if you’re launching 1000+ satellites is going to be unaffordable even for the likes of Facebook and Google.) Additionally, the embryonic yet growing space mining industry is sowing the seeds for potential conflict particularly if the easily accessible asteroids turn out to be less of a bonanza than some are predicting. A lack of coordination between national regulatory regimes could exacerbate this problem.
Most of these issues can be addressed without recourse to a new space treaty. Discussion, cooperation and coordination between the various actors in space, be they state or otherwise, is the best way forward. Various incarnations of so-called soft law can work wonders, and as has been argued by Setsuko Aoki, professor of international law at Keio University in Japan, given the multinational, collaborative and increasingly commercial nature of space activities, soft law approaches are actually, probably, the best approach to take to dealing with the gaps in the existing body of space law.
The first fifty years of the Outer Space Treaty have largely been a success; the drafters can be proud of their work. While we may not have colonies on Mars or Hiltons on the Moon, we have a vibrant and successful space sector that most could not have imagined in 1967. The next fifty years in space look bright and I, for one, look forward to celebrating the centenary of the Outer Space Treaty (I’ll be 75) as well as getting on with the work still ahead of us!
Thank you for reading and I’d like to recommend that you also read Chris Johnson’s excellent article on the Outer Space Treaty at Fifty.
Robert Dallek, ‘Johnson, Project Apollo and the Politics of Space Program Planning’ 68-91 in Roger D. Launius and Howard E. McCurdy eds., Spaceflight and the Myth of Presidential Leadership (University of Illinois Press, 1997), 81
Outer Space Act 1986 c.38, http://www.legislation.gov.uk/ukpga/1986/38/contents
Walter A. McDougall, The Heavens and the Earth: A Political History of the Space Age (Johns Hopkins University Press, 1997), 416
Setsuko Aoki, ‘The Function of ‘Soft Law’ in the Development of International Space Law’, (57-85), in Irmgard Marboe (eds), Soft Law in Outer Space: The Function of Non-binding Norms in International Space Law (Boehlau Verlag, 2012), 59-61