The following is a guest post by Sophia Guido, an intern with the Digital Resources Division of the Law Library of Congress. She is a graduate of the Master of Information Program at Rutgers University.
When I first thought about the topic of space law, I remembered a scene from Ridley Scott’s The Martian, in which Mark Watney describes himself as a space pirate. In the scene, Watney explains how he believes laws apply to him on Mars. He states that there is an international law that prohibits the claiming of anything outside of the Earth. He also concludes that maritime law would apply if you are not in any country’s specified territory, characterizing Mars as “international waters.” While the part about maritime law is not necessarily true, it turns out there actually is an international law that discusses territorial claims in outer space.
This international treaty is officially called the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (October 10, 1967, 18 pt. 3 UST 2410), but it is more commonly known as the Outer Space Treaty of 1967. Article 2 of this treaty states that no nation can make a territorial claim to any celestial bodies. This treaty, which forms the foundation for international space law over the course of 17 articles, has impacted current and future space exploration.
The need for outer space law began in the late 1950s with the start of the “space race” between the United States and the Soviet Union during the International Geophysical Year (1957-1958). At that time, many nations were worried about nuclear weapons and the potential for outer space to become exploited for military advantage. In 1958 and 1959, two international committees, The Committee on Space Research (COSPAR) and The United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), were formed to promote international cooperation in scientific research and encourage the peaceful use of outer space. Between 1959 and 1962, proposals by western nations were made to the United Nations (UN) to ban states from orbiting and stationing weapons of mass destruction in outer space.
On September 22, 1960, President Eisenhower proposed that the principles of the Antarctic Treaty of 1959 be applied to outer space and the celestial bodies. As a result, there are many overlaps between the two treaties. When comparing the two environments, there are many similarities, namely each being located in a remote, extreme environment with potentially valuable resources, and each with many countries interested in doing scientific exploration and making territorial claims.
The 1963 Limited Nuclear Test Ban Treaty prohibited all nuclear weapons tests or detonations under water, in the atmosphere, or in outer space. The United States proposed another treaty in 1965 and 1966that eventually became the Outer Space Treaty. The treaty was opened for signature in the United States, the United Kingdom, and the Soviet Union on January 27, 1967, and entered into force on October 10, 1967.
After successfully reaching a consensus on the Antarctic Treaty in 1959, countries were eager to apply these already agreed-upon terms to outer space. The result: many articles in both treaties are very similar to each other. For example, during the Antarctic Treaty discussions, many countries wanted to claim part of the continent as their own based on whose citizens discovered a particular area first, but there were many overlaps of land claimed by multiple nations. So, it was decided that no country could claim sovereignty over any part of Antarctica. By putting this article within the outer space treaty, no country can claim ownership over any celestial body in outer space. As more countries develop the technology to send people or objects into space, this idea is more relevant than ever.One of the main principles of the Outer Space Treaty is that the exploration and use of outer space and the celestial bodies within it should be carried out for the benefit of all countries, regardless of whether it is for scientific or economic purposes, and only for peaceful purposes. Outer space can be freely explored by all states. However, no country can make any territorial claim to any part of outer space or any celestial body, and every country is responsible for any national space activities carried out by their government or non-government entities and will be liable for any damage caused by their citizens. No country is allowed to place any nuclear weapons or any weapons of mass destruction in any part of outer space.
Since the Antarctic Treaty and the Outer Space Treaty were both created during the Cold War and with the emergence of nuclear weapons being a particular concern, both treaties added an article about banning these kinds of weapons in relative areas. Scientific research is also a major part of both treaties, and people are still learning new information about each environment. Conducting research peacefully and sharing information between countries was seen as promoting international cooperation.
In the decades after the Outer Space treaty was signed and came into force, several follow-up treaties were signed that expanded the original one. The Rescue Agreement of 1968 further expanded on article 5 of the Outer Space Treaty laying out how all states have an obligation to rescue or provide assistance to the personnel of a spacecraft if they are in distress or in an emergency situation. The Space Liability Convention of 1972 expands on the liability rules of the Outer Space Treaty. The Registration Convention of 1976 requires states to register the details about each space object that is launched into space with the UN. The Moon Treaty of 1979 emphasized that the moon and other celestial bodies should be governed by international law, stating that the moon and other celestial bodies should be used only for peaceful purposes; however, this treaty was not ratified by any of the major space-traveling countries.
Since the original Outer Space Treaty came into force, there have been many advancements in space exploration. Additional countries now have space programs and are constantly discovering new information. Humankind has sent out satellites, probes, rovers, and other spacecraft into the earth’s orbit, to other planets in our solar system, and beyond.
NASA’s technology has advanced so far from when the original Outer Space Treaty was signed that some space programs are planning manned space travel to Mars. Governments are no longer the only entities capable of going into space, there are also billionaires and private companies who are trying to travel into space. We are still learning so much about space and the Outer Space Treaty provides a foundation for space law that can be built upon. Both the Antarctic Treaty and the Outer Space Treaty are examples of humankind’s ability to work together to increase scientific knowledge that will benefit communities worldwide. These treaties are seen has having set a precedent for future international agreements in terms of promoting scientific knowledge on a peaceful and selfless basis.
Citations of Treaties and Works Consulted:
Australian Antarctic Program. “Antarctic Territorial Claims.” Australian Government – Department of Agriculture, Water and the Environment: Australian Antarctic Division | Australian Antarctic Program, April 14, 2016. https://www.antarctica.gov.au/about-antarctica/law-and-treaty/history/antarctic-territorial-claims/
Lize-Marié van der Watt. (n.d.). National rivalries and claims. Encyclopædia Britannica. Retrieved from https://www.britannica.com/place/Antarctica/National-rivalries-and-claims
National Science Foundation NSF. (n.d.). The Antarctic Treaty. National Science Foundation NSF. Retrieved from https://www.nsf.gov/geo/opp/antarct/anttrty.jsp
United Nations. (n.d.). 2345 (XXII). Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space. United Nations Office for Outer Space Affairs. Retrieved from: https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/rescueagreement.html
United Nations. (n.d.). 34/68. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. United Nations Office for Outer Space Affairs. Retrieved from: https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/moon-agreement.html
United Nations. (n.d.). 2777 (XXVI). Convention on International Liability for Damage Caused by Space Objects. United Nations Office for Outer Space Affairs. Retrieved from: https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/liability-convention.html
United Nations. (n.d.). 3235 (XXIX). Convention on Registration of Objects Launched into Outer Space. United Nations Office for Outer Space Affairs. Retrieved from: https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/registration-convention.html
United Nations. (n.d.). 2222 (XXI). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. United Nations Office for Outer Space Affairs. Retrieved from: https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html
United Nations. (n.d.). World Space Agencies. United Nations Office for outer space affairs. Retrieved from: https://www.unoosa.org/oosa/en/ourwork/space-agencies.html
Race, Margaret S. 2011. “Policies for Scientific Exploration and Environmental Protection: Comparison of the Antarctic and Outer Space Treaties.” in Science Diplomacy: Antarctica, Science, and the Governance of International Spaces, edited by Berkman, Paul Arthur, Lang, Michael A., Walton, David W. H., and Young, Oran R., 143–152. Retrieved from: https://repository.si.edu/bitstream/handle/10088/16170/15.Race.SD.web.FINAL.pdf?sequence=1&isAllowed=y
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