A Note on the Outer Space Treaty

Friday August 18, 2017

The Outer Space Treaty was adopted in 1967 to establish a baseline of rules governing the acts and behavior of those in operating beyond Earth’s atmosphere. In general, the Treaty applies when acting in space, on the Moon, or “other celestial bodies,” which presumably means asteroids and other planets. The language of the treaty seems likely designed to have effect anywhere outside Earth’s atmosphere, generally promoting the peaceful use of space resources. The Outer Space Treaty provides many rules, but several stand out as relevant to providing independent governing structure in space.

One of the most important is that nongovernmental actors are subject to the supervision of their own governments in space. Businesses, nonprofits, and individuals are not prohibited from participating in space activities; however, when they do, they do so under the supervision of their respective governments, implying they are subject to their national law while doing so. Accordingly, when a private space mission launches from the United States, the launcher must receive permission from the Federal Aviation Administration. Under this standard, a privately-launched space colony must operate under the laws of its home nation, effectively enshrining a long-arm approach to governing in space.

More commonly known is the prohibition on the placement of nuclear weapons in space. The Outer Space Treaty expressly prohibits the use of space for nuclear weapons or any other type of “weapons of mass destruction”. Of course, this prohibition does not prohibit other military uses of space, as demonstrated by the Global Positioning System. Further, it does not prohibit the use of governments generally. The intent of this prohibition is to ensure the peaceful use of space and discourage the development of space-based combat systems, which would have a detrimental effect on all potential users.

From a standpoint of space governance, especially for a colony in space, the prohibition on sovereign claims in the Outer Space Treaty causes some difficulty. The Treaty specifies that nations may neither claim nor occupy outer space or a celestial body. The goal here is to prevent a nation from claiming a monopoly or ownership of some body. As the Treaty was adopted two years before the first Moon landing, this prevented the United States from claiming the Moon as its territory. While it would be difficult to enforce a claim without some sort of garrison, since 1972, the United States has not returned and no other nation has succeeded to establish a home there, even for a few hours.

In both a general sense, and as explicitly stated in the Outer Space Treaty, the intent of the treaty was to establish that state actors participating in exploring space would treat each other equitably and with free access. This essentially extends the norms of international law, a loosely defined set of relationships set by custom and treaty, to outer space. However, there are some key differences with the law of the sea. For instance, the Law of the Sea Treaty, allows nations to claim some territorial waters. The Outer Space Treaty contains nothing similar and leaves open the question of space governance.