50 years of Space Law: The 1967 Outer Space Treaty
The Outer Space Treaty, as it is most commonly known, celebrates this year five decades in existence and offers a reason to reflect on the development of international space law in the past half-century.
It would be unfair to let 2017 slip away without making a mention of the 50th anniversary of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space. The Outer Space Treaty, as it is most commonly known, celebrates this year five decades in existence and offers a reason to reflect on the development of international space law in the past half-century.The adoption of the Outer Space Treaty marked two significant points in international legal history, namely the establishment of the field of space law, and the first text that openly proclaimed peace and the benefit of mankind among its cardinal provisions. The significance of the Treaty is proven by its contemporary character, even five decades after its entry into force, thanks to its general set of principles, constituting an example of international cooperation in the field of international law.
In 1967, amidst the peak of the Cold War, a small miracle took place in the international community; the adoption of a text that proclaimed peace and accounted for the interest of all countries. The Outer Space Treaty was concluded one decade after the launch of the first artificial satellite into orbit around the Earth and shortly before the giant leap for mankind on the surface of the Moon. Both events were results of the so-called space race, an extension of the Cold War competition between the two major powers at the time, the USA and the USSR. The American attempt to land a man on the Moon was seen as a response to the Soviet launch of the first man into orbit, Yuri Gagarin, whereas both were proof of the spread of the hostile environment on the Earth into outer space. At the same time, the benefits of space technology had begun to be noticed, especially in terms of surveillance and prospects of placing weapons into orbit.
Recognising the risk of extending the Cold War threat into outer space, States gathered to negotiate on principles that would rule their activities in the final frontier. In this spirit, the Outer Space Treaty is characterised by two main elements, its pacifist approach to the use of outer space and the inclusive nature of its provisions. Both factors are reflected in the text of the Treaty that incorporated provisions that had not appeared before in an international document. In particular, the Treaty states that outer space should be used exclusively for peaceful purposes, while nuclear weapons and weapons of mass destruction are banned from being placed into orbit, and that the exploration and use of outer space should be free and carried out for the benefit and in the interest of all countries regardless of their degree of advancement. The Treaty also includes, among others, provisions on environmental protection, authorisation and supervision of space activities, responsibility and liability of States, the registration of space objects and visit of space facilities.
Despite the fact that the said provisions seem idealistic and generic in context, their purpose was to set out main guidelines that would be open to specification, when and if that need would arise. This was done later with the adoption of the other four space treaties, the Liability Convention, the Registration Convention, the Rescue and Return Agreement and the Moon Agreement. Besides, the development of the space sector at that time was still at a preliminary stage, hence the potential of space activities was neither envisioned nor accounted for. At the same time, the common goal of maintaining space for exclusively peaceful purposes did not allow extensive debate about including additional or more elaborate provisions than the current ones. Therefore, the outcome of the negotiations was a set of general principles that stand to date as the cardinal source of international space law.
Nevertheless, the evolution of space technology in the past fifty years since the Outer Space Treaty entered into force has consequently raised challenges with regard to the contemporary character of its context. It has been questioned whether a text adopted in a period when technological advancement was not considered is able to address the legal issues related to the modern state of development. Among the most prominent examples of such doubts is the discussion surrounding the non-appropriation principle enshrined in Article II of the Treaty, which appears to be in conflict with the unveiling plans for space mining and space resource utilisation. However, it is exactly the generic character of the Treaty’s provisions that affords adjustments and interpretation to match any contemporary challenges. Despite the initial negative reaction to the prospect of space mining missions on the grounds of violating the non-appropriation principle, the discussion has recently shifted to the ways in which such activities can be carried out in conformity with this principle, as well as with the entire text of the Outer Space Treaty. The Hague Space Resources Governance Working Group, hosted at the International Institute of Air and Space Law of Leiden University, aims to identify and formulate guidelines for the governance of space resource activities and has come up with the Draft Building Blocks for the Development of an International Framework on Space Resources, which proclaims that such a framework on space resource utilisation should not contravene the non-appropriation principle. This is one of the most characteristic instances, where the significance of the Outer Space Treaty prevails over doubts or disbelief concerning its content.
From its adoption to its fiftieth anniversary, the Outer Space Treaty constitutes a paradox. It was adopted under hostile circumstances and despite the general character of its provisions, it has managed to maintain its position as the cornerstone of international space law. Moreover, its articles - promoting cooperation, sharing, and peace - rank it as a unique example of an international treaty. Reflecting on the past fifty years of space law, particularly through the scope of the Outer Space Treaty two main conclusions can be derived. First, a commonly recognised goal, namely the peaceful uses of outer space, is a force powerful enough to drive States into concluding an agreement on principles that do not necessarily reflect the political circumstances at the time. Second, for these principles to become well-established and maintain their force through time, a certain degree of general approach in their drafting is essential. Finally, it is inspiring to observe that, in times of global instability and unrest around the world, a principle of peace, albeit not addressing activities on our planet, remains in high regard. The Outer Space Treaty has succeeded in its first half-century, and the ground-breaking technological advancement achieved in the space sector in the past decades. It remains to be seen whether in the next fifty years space activities will also endure the test of the Treaty.