Despite more than 60 years of history of space flight, there is so much we don’t know and have not decided about how to manage it. In order to more effectively regulate the development of orbit and nearby cosmic bodies, there has been a lot of work done on Earth to create and update legislative frameworks. Space law is designed to regulate many elements of how we conduct ourselves and our tools in space, from the moratorium on the deployment of weapons in orbit to control of the level of orbital debris.
In our new series, What is Allowed in Space, we will show how space law was born, and what mechanisms the world’s legislative bodies are trying to put into it. Today we will talk about the creation of the Outer Space Treaty: the first international legal act regulating the behavior of countries in orbit. The treaty was intended to make space forever a weapons-free zone, but the Cold War would test this initiative for peace for the entire second half of the 20th century.
The origins of space law
From the moment of the very first launch into orbit, spacecraft were part of a literal arms race, and in addition to a scientific one. In 1958, the UN General Assembly set up the 16-member Committee on the Peaceful Uses of Outer Space (COPUOS). A year later, the committee was established as a permanent body at the UN, and was expanded to 24 members.
In 1966, the Committee submitted Resolution 2222 (XXI), which sought to create if not a complete moratorium on the development of military space technologies, then at least transparent rules that everyone had to abide by.
January 27, 1967 marked the appearance of the first international regulatory framework for space activities. On this day, the first UN treaty regulating countries’ space activities was signed. The document supplemented the text of resolution No. 2222 and was called the “Treaty on the Principles of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” more commonly referred to as the Outer Space Treaty, or OST.
The declaration was not the first of its kind. Some of its provisions drew from earlier texts like 1963’s Partial Nuclear Test Ban Treaty, Resolution 1884 on general and complete disarmament, as well the first edition of the General Assembly resolution on outer space from 1958. However, it was OST that became the first legally binding document laying the foundations of international space law.
The first three countries to sign the Outer Space Treaty were the United States, Great Britain and the USSR. In 1967, the total number signatories reached 91, among them Ukraine (the Ukrainian SSR at the time). As of March 2023, the treaty has been signed by 113 countries.
The treaty consists of 17 articles regulating signatories’ activities in space. The most significant provisions were as follows:
- Space exploration should contribute to strengthening international cooperation and global peace.
- All countries of the world, regardless of their level of economic development, should have access to outer space and celestial bodies.
- No state may appropriate or occupy any type of celestial body, in particular the Moon, other natural satellites, planets, and asteroids.
- There must be a “principle of reciprocity” by which all signatory countries are guaranteed access, upon request, to any orbital stations, spacecraft and research terminals that were or will be built by other parties to the treaty.
- Deploying weapons of mass destruction in orbit or on celestial bodies is forbidden.
- Signatories bear full financial and legal responsibility for any damage that their space activities cause to the planet. However, it was not made clear how this damage or required compensation should be assessed.
- The activities of private aerospace companies shall be fully controlled by the signatory state in whose territory the organization is registered.
The text of the OST was rather altruistic in nature. It tried to prevent the emergence of inter-state competition in space. This was largely due to the spirit of the time itself: by the end of the 1960s, it seemed to the world that conflicts like World War II would never happen again, which meant that space must not be allowed to cause a possible conflict between countries.
Inspired by the vision of building a united world, OST signatory countries worked to stop any sort of territorial expansion from unfolding in space, and the treaty’s formal establishment of rules greatly contributed to this process.
However, the OST contained a number of obvious gaps and vague language that would later prove problematic. The treaty did not clearly spell out the legal regulations for conducting commercial activities in space, failed to establish a regulatory framework for reconnaissance and communications satellites in orbit, and made only casual mention of states’ responsibility for possible environmental damage that could be caused to the planet as a result of orbit activities.
With 67 years of hindsight since the OST was signed, the shortcomings of the agreement’s original text have become very clear.
If it’s not prohibited, it’s allowed: Vague language as a call to action
It is worth noting that the numerous gaps in the text of the Outer Space Treaty in a certain sense freed the hands of signatory countries in their attempts to solve their own national security issues using orbit.
The world’s space powers understood that they would be able to achieve their objectives in space without resorting to weapons of mass destruction. They may not even need weapons at all. First of all, both the Soviet and American militaries were interested in the possibilities of rapid radio signal transmission. They would use encrypted channels to organize an extensive satellite communication system.
The second, obviously attractive prospect of orbital development was reconnaissance. Satellites equipped with powerful optics could fly over and observe territories of interest without fear of being shot down (the first promising steps in the development of anti-satellite, or ASAT, weapons would begin only in the 1980s). Back in the early 60s, shortly before the signing of the OST, satellite reconnaissance was a tacitly agreed-upon activity to which no space power was willing to publicly object.
After the signing of the OST, the United States would pass a number of amendments to the treaty in their own legislature allowing them to launch reconnaissance satellites over the territory of third-party states without receiving permission from them. Thus, OST allowed satellites to receive intelligence information about the accumulation of weapons, and also did not prohibit the development of satellite early warning systems for missile threats and the preservation of the satellite communications architecture for emergency response. All these actions were seen as contributing to the strengthening of space security.
By the end of the 1960s, all participants in the space race had a firm understanding that space can only be used as a zone of strategic deterrence and preventive control over the expansion of weapons, but not as a means of inflicting damage upon an adversary. In addition, orbit was difficult to control in an analogous manner to terrestrial territories.
However, it was the absence of a specific ban on the deployment of conventional weapons in orbit, or of ballistic missiles with nuclear warheads or anti-satellite weapons (ASAT), that would ultimately lead to the Soviet Union firing weapons in space, and to the United States seriously considering using nuclear missiles to destroy Soviet satellites. However, this idea would be abandoned when scientists realized that the electromagnetic pulse that results from a nuclear detonation would disable their own satellites.
Damage compensation, missile defense, and transparent satellite registration
In 1972, а third international treaty on outer space was adopted, titled the Convention on Outer Space Liability. The second treaty was a “Rescue Agreement” requiring countries conducting space launches to make every effort to help space crews which are in distress).
The Space Liability Convention prescribed clearer rules that dealt with states’ liability for possible damage that their space activities could cause. Now, signatory states had to think twice about the consequences of developing orbital weapons, or even of carrying out tests.
After realized by the early 70s that they lacked the ability to create non-nuclear anti-satellite weapons, the USSR and the US began to discuss the idea of a mutual “detente,” which would result in the signing on May 26, 1972 of the Treaty on the Limitation of Anti-Missile Defense Systems, or ABM Treaty, which was signed in conjunction with the Treaty on the Non-Expansion of Strategic Offensive Arms (known as the first Strategic Arms Limitation Treaty, or SALT I). In 1979, it would be supplemented by the second version of the treaty (SALT II).
The ABM Treaty required both countries to abandon plans to expand strategic missile defense systems that could be deployed on land, at sea, in the air, or in outer space. The logic was simple: a reduction in the production of missile defense systems would keep both USSR and the US in check by virtue of each side’s vulnerability to the other’s nuclear missiles, while a situation in which both sides could develop missile defense would push each country to build up its strategic nuclear arsenal to be able to overwhelm the other side’s defenses. The ABM Treaty did not prohibit the use of anti-satellite missile systems, but rather only sought to limit the development of anti-missile systems to protect against intercontinental ballistic missiles.
In 1976, another initiative came into force from the UN Committee on the Peaceful Uses of Outer Space. The fourth international space treaty was called the Convention on the Registration of Objects Launched into Outer Space. It required countries carrying out space launches to create a national register of all spacecraft launched into space and notify the UN Secretary General of any updates.
This register was supposed to contain all data about a launched spacecraft, in particular its intended trajectory, destination, date and place of the upcoming launch, as well as its registration number. The appearance of the Registration Convention alongside the two US-Soviet nuclear treaties (the ABM Treaty and SALT I) significantly lowered geopolitical tensions between the two superpowers, but the specter of a possible future confrontation between them over the Moon and its resources was already looming on the horizon.
How can a democrat and a communist get along on the moon?
On July 21, 1969, the first human in history, Neil Armstrong, set foot on the surface of the moon. Fifteen minutes afterwards, he was joined by his fellow NASA crewmember, Buzz Aldrin. Even though the Apollo 11 astronauts planted an American flag on the Moon, it did not, of course, become US territory. The nationalization of celestial bodies directly contradicts Article 2 of the Outer Space Treaty, which expressly prohibits the occupation of any space bodies on behalf of a country.
In addition, in the second half of the 20th century, countries simply did not see any reason why they should appropriate the territory of the Moon, as it appeared to be completely lifeless and devoid of minerals. There were also no significant ice deposits found which could be used to supply potential lunar bases with water. After approving a program for the construction of the Horizon military lunar base in the late 1950s, the Americans calculated that just in order to build a lunar base by 1966, they would need to carry out 100 Saturn I rocket launches or 74 Saturn II launches over the next seven years. An additional 50 Saturn I launches would have been needed to supply the lunar base and a garrison of 12 astronauts. At that time, such projects to colonize the Moon simply did not appear viable.
After Apollo 17 astronaut Eugene Cernan made his second moonwalk in December 1972, NASA decided that manned missions to the Moon were too costly and unprofitable. For almost 50 years, no space agency would seriously consider any plans for lunar colonization.
In order to codify universal promises for no country to attempt to appropriate the Moon, the Committee on the Peaceful Uses of Outer Space initiated the signing of the fifth (and currently final) international space treaty, the Agreement on the Activities of States on the Moon and Other Space Bodies,” in 1979. Most provisions of the agreement, known as General Assembly Resolution 34/68, supplemented those of the OST, and extended a number of its main provisions to the Moon.
The Lunar Agreement allowed any nation state to land its spacecraft on the Moon, build automated modules and stations, and carry out any kind of peaceful activity on or below the Moon’s surface, so long as the activity did not prevent other participating countries from conducting their own lunar missions. At the same time, the Agreement still prohibited the appropriation of the contents of the lunar interior, which was designated the common property of all humankind.
However, resolution 34/68 also provided room for future legal maneuver, should the extraction of lunar resources become a truly profitable activity. Article 11 required signatory countries to create an international regulatory body that would control the process of resource extraction.
The main recommendations in the conduct of these resource-extraction activities still remained: the safe development of lunar resources, their rational and regulated extraction, the creation of conditions for expanding opportunities for the use of these resources in place, as well as a fair distribution of the extracted resources between all states that participated in the process.
In the 21st Century, Article 11 of the Lunar Agreement will once again become relevant. In recent years, scientists have confirmed the long-standing hypothesis that the lunar poles were rich in deposits of ice that could be mined and cleaned for further use by humans.
But water is not everything. Some of the more than 100,000 lunar craters may contain deposits of non-ferrous metals (platinum group metals are of particular interest to scientists), left in the lunar soil after millions of years of meteorite bombardment.
A joint international initiative for the exploration and future extraction of these resources could help create a new round of “detente,” but the US Commercial Space Launch Competitiveness Act of 2015 effectively excluded this possibility. The United States gave their private aerospace companies the right to mine, use in place, or transport to Earth resources that they are able to extract in space. This policy has been replicated in a number of countries, including ones which are hardly American partners. some of which are not partners of the United States at all. The Russian Federation, China, Japan and the United Arab Emirates have their own laws on the extraction of resources in space, which brings even more chaos to the issue of regulating activities for the extraction of resources from the cosmos.
According to the editor-in-chief of The Economist, Oliver Morton, we are likely to see in the near future that politics on the Moon will directly or indirectly reflect politics on Earth. The growing level of confrontation between China and the United States could put an end to the peaceful initiative to jointly mine lunar resources for the benefit of all humankind, as prescribed by the text of the 1967 Outer Space Treaty. While it was created to contain the global crisis of the Cold War, the OST today seems to be contributing to the creation of a new crisis.