The Establishment of the Outer Space Treaty

Signing the Outer Space Treaty on January 27, 1967.

With the fiftieth anniversary of the “Outer Space Treaty,” formally the “Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies,” taking place on January 27, 1967, I thought it appropriate to discuss this important legal instrument. Despite assaults on its merits from several quarters, I believe he still offers important governing principles.

While Dwight D. Eisenhower deserves credit for the establishment of “open skies” and overflight as a principle in space, as well as his role in pressing scientific internationalism as the raison d’être of activities in Antarctica, successors of another political party put their own cast on this structure in 1967 with the “Outer Space Treaty.”

Regardless of some relatively modest alterations over time, this rested on a remarkably consistent policy for the United States during the first fifty years of the space age. Six basic principles enunciated in various policy documents, including this treaty, have been deployed by the United States.

First, the United States and the Soviet Union established in the 1950s and has maintained to the present “freedom of space,” ensuring free access to space and the unimpeded passage through space of all satellites and other vehicles regardless of national origin and for whatever purposes intended. Any interference with operational space systems became an infringement on sovereignty and could be construed as an act of war. Second, the parties agreed not to press claims of sovereignty over any part of space or its bodies. Third, the right to defend against attack was preserved and would be considered self-defense just as on the Earth. Fourth, this policy regime explicitly recognized all the various nations’ civil, military, and intelligence programs as legitimate. Fifth, ownership of space assets rested with the original entity placing them in space, and laws of salvage similar to that of the sea were extended to space. Finally, all parties agreed that no weapons of mass destruction were to be placed in space, especially ensconcing this decision in the Outer Space Treaty of 1967.

In truth several international organizations have been involved in the governance of space activities. The United Nations General Assembly established a Committee on the Peaceful Uses of Outer Space in 1959 to discuss scientific, technical, and legal issues related to international space activities; sixty-one states are members of the Committee. This Committee has provided the forum for the development of five treaties and a number of declarations of principles related to space activities. The most important of these is the 1967 Outer Space Treaty, which set forth the general legal principles governing space activities. Other parts of the United Nations system, most notably the International Telecommunications Union (ITU) have also long been engaged in space-related activities, responsible as it is for allocation of radio frequencies and orbital locations for satellite services.

First session of the Legal Committee on Peaceful Uses of Outer Space, May 26, 1959.

While the Outer Space Treaty Regime demands that space be used for “peaceful purposes” it did not preclude “defense and intelligence-related activities in pursuit of national security and other goals.” It emerged from the rivalry between the United States and the Soviet Union in the mid-1960s. Its political genesis may be seen in documents from the Lyndon B. Johnson White House in December 1966 about the proposed space treaty and other initiatives to lessen Cold War rivalries:

• Moving toward a more cooperative relation with the USSR in this field will reinforce our over-all policy toward the Soviets.
• More importantly: It will save money, which can go to (i) foreign aid, (ii) domestic purposes—thus mitigating the political strain of the war in Vietnam.

The analysis went on to say that “While largely atmospheric in their effects, the UN ‘no bombs in orbit’ resolution and the proposed celestial bodies/outer space treaty are pointed in this direction [of creating a legal regime for governing space]. We need to seek our potential problem areas and develop practical ways of resolving them.”

According to congressional hearings before the Committee on Foreign Relations in 1967, the Outer Space Treaty was first pursued as a means of ensuring that outer space be explored and developed exclusively under peaceful conditions and working collaboratively with other countries. Moreover, the centerpiece of the space treaty, negotiated through the United Nations, concerned military expansion and national security, coupled with a desire to ensure the sanctity of “freedom of international space.” Scientific activities in space also served as peacekeeping surrogates and cooperative ventures that ensured internationalization and diffused political tensions—that the political exploitation of scientific goodwill facilitated essentially political objectives. Science legitimized international control by creating mechanisms for management and goals for continued rational use that have continued to this day.

The 17 Articles of the Outer Space Treaty have considerable overlap and similarity with the 14 Articles of the Antarctic Treaty of 1959, which was its intellectual heir. Both stipulate exclusively peaceful uses and strict limitations on military activities and the use of nuclear weapons and materials. Both also prohibit governments from extending national sovereignty or making new resource claims. Both treaties include stipulations allowing use for scientific research, allowing the use of military personnel and/or equipment for scientific research, but contain strict verbiage against military fortifications, maneuvers, and weapons testing. The Outer Space treaty allows for all countries, irrespective of economic means, to take advantage of the scientific development of space, whereas Article III of the Antarctic Treaty encourages Specialized Agencies of the United Nations and other international organizations having a scientific or technical interest in Antarctica.

Notable differences had to do with the nature of space exploration and the rescue of astronauts and cosmonauts, with agreement that all signatories would provide assistance in the event of accidents or emergencies. For example, invoking the Outer Space Treaty as the rationale during the Apollo 13 crisis in 1970 the Soviet Union famously offered assistance to the U.S. to rescue the astronauts either in space or at sea. The U.S. just as famously declined this assistance, believing it motivated just as much by Soviet desire to inspect American technology as to assist in the rescue.

There were numerous differences between the priorities of the U.S. and the USSR when negotiating the Outer Space Treaty. Perhaps the most difficult was the effort of the Soviets to ban all private enterprise in space: “All activities of any kind pertaining to the exploration and use of outer space shall be carried out solely by States.” Unsure of the objective by the Soviets in making this proposal—was it just a negotiating tactic or “an attempt to extend Communist principles to outer space”—the U.S. proposed a compromise that stated: “that States bear international responsibility for national activities in space, whether carried on by government authority or by other entities.” Accordingly, the Outer Space Treaty System may be considered permissive in handling most commercial activities in space, containing principles useful to economic development. In regard to space resource utilization, private appropriation of extracted resources is even permissible under the terms of the Outer Space Treaty.

In such cases as this, the use of vague language ensured that the treaty could be adopted, but also that it would require later refinement. At the U.S. Senate ratification hearings for the treaty Arthur Goldberg, who led the U.S. negotiating team, admitted this. When asked about Article I of the treaty he told the Senators, “the article was a ‘broad general declaration of purposes’ that would have no specific impact until its intent was detailed in subsequent, detailed agreements.” These issues had to be made more specific over time as additional treaties, regulations, and international agreements were struck.

A core question, with the Cold War having been over for more than 25 years, is the 1967 Outer Space Treaty still valid? Your thoughts?