“Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”

Frederico Carvalho

The issue of the peaceful utilization of outer space, as a general principle, and in particular, that of a possible colonization of the Earth's natural satellite with the exploitation of its mineral and energy resources by private interests, is presently on the table and deserve particular attention. Besides, the use of outer space for military aggressive purposes has been, for almost half a century, a subject of concern of international bodies that have a say on the future of human communities, the co-operation between states and the defense of peace. A key role was played by the United Nations, through its “Committee on the Peaceful Uses of Outer Space” (COPUOS) established in 1959 (shortly after the launch of Sputnik) whose work led to the resolution adopted by the General Assembly, in the plenary session of December 19, 1966. The Resolution recommends the formalization of a treaty on “Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies” the text of which is annexed to the Resolution [1]  .

The Treaty was negotiated by the United States of America and the Union of Soviet Socialist Republics. Negotiations took place during the so-called "cold war" a period of recent History when East-West relations were severely constrained. In those years the parties involved in the negotiation recognized that the respective states had, in essence, a monopoly of nuclear weaponry of equivalent offensive power and equivalent technical capabilities in what concerned outer space activities. An agreement was thus reached, particularly on the impediment of in-orbit deployment of nuclear weapons that the Treaty establishes.

The Treaty entered into force on October 10, 1967. Today, 104 States are parties to the Treaty, that is, states that declare themselves obliged to abide by the rules set in the Treaty. Another 24 states are signatories of the Treaty but have not completed ratification. Among the latter, only one has acknowledged technical capabilities in space [2]  .

The Treaty, referred to in abbreviated form as "Outer Space Treaty", constitutes the fundamental pillar of international law governing the conduct of States in space.

The terms of the Treaty clearly indicate the purpose of ensuring the use of outer space for peaceful purposes, in a framework of international cooperation.

Article I of the Treaty explicitly states that "the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind " The Article further establishes that "there shall be freedom of scientific investigation in outer space, including the Moon", as well as freedom of access "to all areas of celestial bodies”, and that all States shall facilitate and encourage international cooperation in the development of this research.

Article II states that outer space, the Moon and other celestial bodies, cannot be “subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.

The Treaty provides in its Article IV, probably the most important, the prohibition of placing in orbit around the Earth any devices carrying nuclear weapons or any other weapons of mass destruction, and, also, the ban on placing such weapons on celestial bodies, or otherwise positioning them in outer space. It states, furthermore, that "the Moon and other celestial bodies cannot be used for purposes other than exclusively peaceful"."(...) Establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden".

As a relevant note about these matters, it should be noted that an internationally accepted definition of the limits of "outer space" apparently does not exist.

Even more strangely, is the fact that there is no international agreement on the vertical extent of "airspace", a three-dimensional portion of the atmosphere, a space that contrary to what happens with "outer space", is subject to national jurisdiction. The International Aeronautical Federation established the so-called "Karman Line" at an altitude of 100 km, as the boundary between Earth's atmosphere and the "outer space."

The Outer Space Treaty skips the thorny issue of ownership and exploitation of mineral or other resources to which states with activities in space may have access. Neither does it consider the question of property rights, including intellectual property rights arising from the exploration of the Moon or of other celestial bodies. In December 1996, the General Assembly approved a "Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries"[3]  . This "Declaration" that does not naturally have the force of a treaty, contains a reference to the contractual terms of cooperative ventures and also intellectual property rights. It is, however, a vague not limiting reference.

Meanwhile it had been adopted by the United Nations General Assembly, the so-called "Moon Treaty". The Moon Treaty was signed in 1979 and entered into force in 1984, once the required number of ratifications, of only five, was reached. At present 16 States are party to the Treaty; 4 others have signed the Treaty but did not complete the ratification process. The Moon Treaty is an international treaty, not a recommendation. Certain provisions of the Treaty are not favored by the main States capable of pursuing significant ventures in outer space which is the reason why neither the United States nor the USSR (subsequently, the Russian Federation) nor China have signed and are therefore not bound by the Treaty.

The key issue is the fact that the Treaty provides that jurisdiction over all celestial bodies (including the orbits around these celestial bodies) is a matter for the international community and that, consequently, all activities in outer space are obliged to respect international law, including the UN Charter. States active in outer space reject the provision that mined or in other fashion acquired resources as well as the technological processes used for that purpose shall be shared with other nations.

Such a requirement and regime are similar to that adopted in the "United Nations Convention on the Law of the Sea" applicable to the extraction and use of resources of the ocean floor outside the "exclusive economic zones" (EEZ) including in particular the wealth of polymetallic nodules rich in iron and manganese. The United States have not ratified to date the Convention of the Sea, by opposing the provision contained therein on the mineral resource regime in the ocean floor, outside those areas. Under the Convention, an International Authority was established for the Oceanic Funds, the "International Seabed Authority" (ISA), which is responsible for organizing and controlling all activities concerning the mineral resources of the seabed and related activities (exploration, transportation) in international zones of the seabed outside national jurisdictional limits (SEZs) whose total area by far exceeds that of the waters under national jurisdiction. The competence of the Convention thus covers the deep funds, establishing that seabed exploration and mining require the authorization of the International Seabed Authority which is also in charge of the collection and distribution of the seabed mining royalty. Ocean and seabed resources lying outside national jurisdiction zones are declared "common heritage of mankind”[4]  .

Outer space should as well be considered common heritage of humanity.

It is reasonable to assume that the reasons behind the non-adherence to the Moon Treaty are of the same nature of those behind non-adherence to the Convention of the Sea.

We face today the threat of the militarization of space. This threat arises from the possibility of use for aggressive purposes of elaborated technological devices, including in-orbit deployment of electromagnetic weapons, nuclear weapons or other weaponised contrivances. On the other hand, the continuation at an increasing pace of outer space pollution caused by a variety of solid objects, debris or wreckage of varied sources and nature ("space junk"), raises legitimate concerns about the safety of satellites in Earth orbit and spacecraft, both at launch and during the re-entry path towards the Earth. These are questions that clearly require co-ordination and convergence of efforts by all intervening States to successfully progress towards a reduction of latent threats in the context of a peaceful relationship between nations. The necessary equilibrium can only be ensured by an international organization, namely the United Nations, either directly or through specialized Agencies of the UN System.

The World Federation of Scientific Workers correctly understood the importance of drawing attention to the implementation of the Outer Space Treaty but also to its limitations. Accordingly, the President of the World Federation of Scientific Workers, Jean-Paul Lainé, on behalf of the Federation’s International Secretariat has addressed to UN Secretary-General Ban Ki-Moon a letter emphasizing the need for the effective respect of international treaties and agreements relating to outer space and in particular of what they stipulate concerning the exploration and utilization of resources that can be found in the Earth's natural satellite or in other celestial bodies.

Scientific workers can and should be willing to take advantage of their knowledge and of all means within their reach to alert their fellow citizens to the importance of ensuring that "outer space" is not used for aggressive purposes and is legally and effectively considered as a common heritage of humanity. There are in this context important issues that even the best informed often ignore, such as the important research activity and ongoing technological developments in the field of the generation of highly energetic electromagnetic pulses, by nuclear or conventional means. Such pulses can be used in outer space to disable communication satellites and can under certain conditions inhibit the operation of information and control systems associated with power grids, transportation networks of people and goods, and social media infrastructures, among others.

As a final comment, it is reasonable to consider that beyond the effective compliance with the provisions of the Outer Space Treaty by the signatory states, the signature of the Moon Treaty by the major technological powers would be a significant positive step in the path towards a stable and peaceful relationship between nations.

February 12, 2016

Frederico Carvalho is chair of the Board of Directors of OTC, the Portuguese Organization of Scientific Workers, and Vice-President of the Executive Council of the World Federation of Scientific Workers

[2]  The Democratic People's Republic of Korea, generally referred to as North Korea, signed the Treaty in 2009. The Islamic Republic of Iran has not signed the Treaty until the present.