Abstract
Forty years after its ratification, the Outer Space Treaty remains the central tenet of international space conduct. Our experts discuss how to amend the treaty to play a more substantive role in an era of growing space use and evolving national agendas.
HIGH STAKES
The Outer Space Treaty (OST) was concluded at a time of confrontation between two superpowers to ensure that space be used “for the benefit and in the interests of all countries.” Forty years later, space is an area of strong international cooperation and is vitally important to global development.
The treaty, however, only prohibits weapons of mass destruction and not other types of space weapons. There is a strong need to fill this loophole. It is important to ban the development, testing, and deployment of antisatellite weapons, space-based antiballistic missile defenses, and other weapons designed to strike targets on Earth from orbit. Some of these goals can be achieved by making the language of the treaty more explicit or widening interpretation of its articles.
The stakes are high. States' commitments not to interfere with space-based “national technical means” play a crucial role in strengthening arms control treaties' verification mechanisms. It is expedient to keep this norm as the arms control regime deteriorates. In particular, the lapse of START in December 2009 may lead the United States and Russia to lift their bans on targeting reconnaissance satellites that look at each other's strategic installations. Strengthening the OST will play a role in retaining the principle of non-interference that is vitally important to ensuring transparency.
RULES OF THE ROAD
Opening the Outer Space Treaty (OST) for changes would arouse ambitions for private or national ownership of “real estate” in space and incite arguments about whether spy satellites and GPS-guided missiles constitute “peaceful use” or space-based weapons–issues that could derail negotiations and shatter the treaty. The international community should instead seek a follow-up treaty that will not alter or replace the OST, but will extend and clarify its principles, introducing rules of conduct, rule-making processes, and a new global governing body.
Building on articles 4 and 9 of the OST–which prohibit weapons of mass destruction and encourage international consultations to avoid “harmful interference”–parties to this new treaty will pledge not to station any kinds of weapons in outer space, not to interfere with the activities of other states in outer space, and not to develop, test, or deploy any means to such ends. The weapons ban will apply to physical projectors or carriers of any form of interfering energy or mass to or from the vicinity of any object in Earth orbit (or above). The ban will not apply to information devices used for military surveillance and navigation, to terrestrial camouflage against surveillance, or to using equipment on the ground to jam signals from satellites.
To achieve these goals, the world needs a new international space agency that will develop and review “rules of the road,” delineate criteria for discriminating banned space weapons from allowed systems, regulate dual-use technologies, verify compliance, and investigate suspicious cases. In addition to its vital security role, this agency will be mandated to foster ambitious international space projects, and seek to ensure that the benefits of space become available to all.
SPURRING DEVELOPMENT
To mobilize private capital for space development, a legal framework must be set up to allow for private property claims to be established on other worlds. While the 1967 Outer Space Treaty (OST) is mute on private claims per se, in point of fact no private property title can exist without a governmental authority to validate it. Thus, the treaty's prohibitions on extraterrestrial claims of national sovereignty have proven to be a massive obstacle to space development and need to be removed.
Some space observers claim that the OST's anti-sovereignty provisions are necessary to “avoid the spread of human conflict to the heavens.” However, the provisions were inserted at the behest of Johnson administration Cold Warriors for the express purpose of aborting a space race that was threatening to divert resources from their military adventure in Vietnam. If, as seems to be the case, human nature drives national leaders to compete for territory, it would be much better that they do it off Earth than on it. Certainly the collateral damage would be much less.
Rather than making a blanket prohibition to claims of national sovereignty in outer space, the treaty needs to set an internationally recognized standard wherein claims would be mutually accepted as valid. For example, it could be agreed upon that an extraterrestrial landing entitled a nation to claim all territory within a given radius, say 50 kilometers of its landing site. The nation in question could then use its own legal processes to validate private property claims made by its own citizens or others within its extraterrestrial territory, just as it does on Earth.
CLARIFYING COMMITMENTS
The launch of Sputnik-I in 1957 initiated a Cold War race that led to the first lunar landing and to ever more sophisticated military satellites, missiles, and plans for weapons that would operate into, from, and through space. This trend contradicted widespread expectations that space exploration would open, as the 1967 Outer Space Treaty (OST) postulates, “great prospects … before mankind,” and should be used exclusively for “peaceful purposes.” The treaty's frequent reference to the peaceful use of space–mentioned twice in its preamble and several times in its body–must not be ignored.
The Vienna Convention on the Law of Treaties states, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty.” The ordinary meaning of “peaceful” should be clear enough. Yet the Soviet Union initially insisted that it meant “non-military,” and the United States interpreted the language to mean “non-aggressive” and permitting of “defense” uses.
Clarifying this and other weaknesses of the OST, instituting moratoria on space weapons tests, negotiating a space weapons ban or a treaty on common security in outer space are all well and urgently required, but they will not live up to their promises in the absence of political will. If civil society believes that space endeavors should be carried out in the common interest, then it must not allow any nation to hijack space technology to occupy and dominate the “high ground.”
Supplementary Material
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies