Can Russia claim Mars as a sovereign territory? Can Jeff Bezos own the Moon? Can you use a piece of rock to build something on the Moon or Mars? Who is responsible for making good if a SpaceX Starlink satellite crashes into China’s space station?
The answers to those questions vary in their complexity (no; no; yes, but you can’t own it; the United States government), but they do exist, and they flow from the same source: The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, better known as the Outer Space Treaty, signed 55-years-ago in 1967.
A document of the Cold War arms race and the related space race, the Outer Space Treaty is largely an arms control treaty, restricting the use and exploration of outer space to peaceful purposes by all nations party to the treaty. But it’s also much more than that. It discusses, or rather bans, sovereign claims to territory in outer space, assures spacefaring nations their astronauts will be well treated if they return to Earth on another nation’s territory, and makes it clear that international law very much applies to outer space.
“There’s always someone saying, ‘Is outer space a lawless void?’” co-director of the University of Nebraska Space, Cyber and Telecom Law program Jack Beard tells Inverse. “No — no, it’s not.”
Of course, space exploration did not ultimately proceed as extensively as many enthusiasts envisioned in the 1960s. Soviet cosmonauts and American astronauts never walked on the Moon together “as brothers and not as warriors for competing nationalities or ideologies,” as President Lyndon B. Johnson said in his remarks at the signing of the Outer Space Treaty in 1967, and neither did they come into conflict about who would do what with the lunar regolith beneath their Moon bases.
But as both NASA and the Chinese space agency plan to send humans back to the Moon, and as private space actors such as SpaceX fill the orbital lanes with thousands of satellites, the opportunities for disputes and conflicts will increase. The Outer Space Treaty may prove to have been well ahead of its time, but the time to which it looked ahead may be right now.
“We have a lot of areas of potential conflict in our modern times,” Beard says, “and many of them don’t have a rulebook.” But when it comes to outer space, the rule book is written, signed, and awaiting application.
The moment everything changed in outer space
There’s a property law principle dating back to at least the 13th century known as the ad coelum doctrine, or in the full original Latin, Cuius est solum, eius est usque ad coelum et ad inferos — “Whoever’s is the soil, it is theirs all the way to heaven and all the way to hell.”
“The idea was that if you owned land — a country or person — you owned it all the way down to the inferno, and all the way up to the heavens,” Beard says.
That was the idea up until October 4, 1957, at least, when the USSR launched Sputnik into orbit around the Earth.
“That immediately changes everything in terms of law,” Beard says. Did nations own the orbital lanes above their territory? Did any nation have the right to float things around in outer space? Could you plant a flag and claim a piece of territory on the Moon or an asteroid? Would a Space Age become “this new expansion of colonial conquest of space?”
And of course, there was also the strategic military dimension that would drive both the Cold War arms race and space race between the superpowers, with both the USSR and the US seeing in Sputnik the potential of ballistic missiles to carry nuclear warheads to distant targets. Or worse still, the potential placement of nukes in orbit ready to rain down annihilation at a moment’s notice.
“And so they said, ‘we need to non-militarize outer space,’ “Christopher Johnson, space law advisor to the Secure World Foundation, tells Inverse. “The story of the Outer Space Treaty is as a disarmament treaty.”
In many ways, the Outer Space Treaty was the culmination of many other efforts. The US and USSR signed the Partial Test Ban treaty in 1963, which banned testing nuclear weapons anywhere but underground. The same year saw the UN General Assembly unanimously adopt a resolution titled “Governing the Activities of States in the Exploration use of Space.”
“There’s an argument to be made that even before the Outer Space Treaty came into being in 1967, all the basic principles in that declaration had already been accepted,” Beard says
Outer Space Treaty principles
The principles eventually enshrined in the Outer Space Treaty include the peaceful exploration and use of outer space “in the interest of all countries” and that no nuclear weapons or weapons of mass destruction should be placed in space.
The treaty also declares space “the province of all mankind” and that it should be free for use and exploration by all states. Those states own and are responsible for the spacecraft, but cannot own or claim celestial bodies.
The non-appropriation principle, laid out in a single sentence in Article II of the 17 Article treaty, was a great achievement, in Beard’s consideration — a statement that nations large and small agreed on not repeating some of the more sordid episodes of human history out in the heavens.
“Nobody is going to get to own any part of space,” he says. “We weren’t going to have another conquest of the Western hemisphere by the big countries and the little countries being left out.”
But the right to free access to space, Johnson adds, is also essential.
“When people say that outer space belongs to everyone or it belongs to humanity, nope, that’s not the way it works,” he says. “Outer space belongs to no one. But we’re all allowed to go there and do things.”
And of course, there are things no one can do in space, like build a Space Force installation on the far side of the Moon or place nuclear weapons in orbit.
And things they must do, like take responsibility when something they’ve launched into space harms another nation’s assets. While countries and companies cannot claim ownership of celestial objects, they retain ownership and responsibility for anything they launch into space, even if it’s just junk — like defunct satellites from decades ago. Nations are also responsible for registering and monitoring the actions of private space actors, so whatever Jeff Bezos and Elon Musk get up to in space, the United States government is ultimately responsible for any international incidents.
“When China doesn’t like Mr. Musk’s satellites, they’re immediately and rightfully turning to the United States to say, ‘this conduct violates the Outer Space Treaty for the following reasons, and you’re responsible for these space objects,’” Beard says.
The signing of the Outer Space Treaty
Just because the basic principles eventually enshrined in the Outer Space Treaty were already under discussion or included in other treaties did not mean the Outer Space Treaty required no negotiation. Discussions over multiple draft versions of the treaty took place from 1966 into 1967 within the legal subcommittee of the United Nations Committee on Peaceful Uses of Outer Space.
“The Russians were particularly concerned that companies were surrogates or proxies for the United States,” Beard says, and “wanted every single thing up there to be the responsibility of the state,” a view that mostly prevailed. The USSR also pushed for what would become Article V of the treaty, guaranteeing the safe return of astronauts and cosmonauts from another nation’s territory, he adds.
But ultimately, a surprising number of countries found common ground in what Beard calls “an interesting coalescence of state interests.”
The Outer Space treaty included 111 countries as parties and an additional 23 as signatories when it was signed on January 27, 1967. It’s a relatively succinct document of just 17 articles, some as short as a single sentence (Article II reads, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”), but represents a substantial achievement for a world living in the shadow of a thermonuclear great power struggle.
“It represented a lot of fundamentally very challenging cooperation at the time,” Beard says. “It was an attempt to create a legally binding rule-oriented system for space. I think that without it, space would be in a much more difficult place.”
And space is difficult enough. News of the signing of the Outer Space Treaty got bumped from headlines when a fire erupted during an Apollo spacecraft test, killing all three Apollo 1 astronauts, Astronauts Gus Grissom, Edward White, and Roger Chaffee.
Living under the Outer Space Treaty
The impact of the Outer Space Treaty isn’t immediately obvious. It didn’t put an end to some ongoing problem, and so much of its effect was preventative, its impact most apparent in the counterfactual scenarios that could have occurred without it.
“There were calls for the UN to regulate space,” Johnson notes. You could have ended up in a world with access to space granted on a case-by-case basis through the United Nations and “there isn’t a global telecommunications industry, and internet from space and satellite TV, because we have a more onerous and restrictive regime for space,” he says
On the other hand, space could have become the center stage for the Cold War arms race, “a staging area for armies to be aiming weapons at other countries and nothing else happens in space,” Johnson says.
Instead, the superpowers kept nukes out of space, largely cooperated in the peaceful use of space, and allowed a space industry to eventually flourish.
“The global space industry is created with the Outer Space Treaty as the context and background,” Johnson says, a “table for it to be built on.”
Active invocation of the treaty has been rare, in part because little space activity took place in the following decades to require invoking it. No human has been to the Moon since the 1970s, much less claimed it as their fiefdom, and collisions and other interference in space have been thankfully rare historically. Canada, however, did invoke the Outer Space Treaty in 1978 after a Soviet spy satellite crashed and spread radioactive debris across Northern Canada, with the Russians eventually paying Canada compensation.
The Outer Space Treaty today and tomorrow
Space is very different today than in 1978. NASA intends to once more put humans on the moon before the decade is over, while private companies like SpaceX are launching thousands of satellites into low-Earth orbit.
“As space gets more congested, you’re going to have more potential for dispute,” Beard says. “Not necessarily conflict.”
And that means putting the Outer Space Treaty to the test as a rulebook for activities in space and working through some of the ambiguities in the relatively sparse treaty.
“What does the term ‘due regard’ in the Outer Space Treaty mean? What does the word harmful interference in the Outer Space Treaty mean?” Beard says. They’re not defined. They’re going to have to be defined through practice.”
For example, SpaceX and OneWeb are launching mega-constellations of thousands of satellites to provide broadband services around the globe. They are authorized and supervised by their respective nations (the US and UK) and so in compliance with the Outer Space Treaty. But if their constellations grow so large that they effectively prevent, say, India from launching its own mega-constellation in low-Earth orbit, have those companies, and the nationals responsible for them, given “due regard” to India’s space activities?
“Here is where the Outer Space Treaty doesn’t have good guidance,” Johnson says. “We’re going to have to come up with some right of way rules and good stewardship rules.”
Similarly, Johnson notes, there have been discussions at the United Nations about the need for a ban on the testing of anti-satellite missiles of the type Russia’s military used to destroy an old satellite in November, creating a large and hazardous debris cloud.
But additional international agreements or treaties will be just that — additional. Past treaties such as the 1968 Rescue Agreement on recovering astronauts and the 1979 Moon Agreement all build on the agreements made in the Outer Space Treaty. It’s anything but obsolete, and no nation party to it has made any indication they would like to withdraw from it.
“It would be very bad to pull out of the outer space treaty,” Johnson says, “because then we start from fresh. We would have to negotiate everything that’s already in there.”
Look instead for an expansion of space law as a discipline, of a revival and mainstreaming of the Outer Space Treaty as humans take on more activities in space, and look around for a rulebook when inevitable conflicts arise.
“It’s interesting how often a question about space does have an answer that you find in the Outer Space Treaty. It doesn’t answer all the questions, but it is the place to begin,” Beard says. “It should be studied more, and it should be understood better, not relegated to the dustbin, because the basic rules that are set out there have, in some ways, been neglected for the past 55 years.”