Still Relevant (and Important) After All These Years: The case for supporting the Outer Space Treaty

October 22, 2007 at 1:29 pm | Posted in Space Law | 2 Comments

by Joanne Irene Gabrynowicz with the blog faculty
Criticism, to be effective must be authoritative. To be authoritative, it must be based on fact. Opinion, to be persuasive, must be well-informed. A recent article, “Still Crazy after Four Decades: The Case for withdrawing from the 1967 Outer Space Treaty” that appeared in the Space Review was neither authoritative nor well-informed. In it, the Outer Space Treaty was criticized because it has allegedly “hobbled space exploration and development” and therefore, it advocated that “one of the major space powers” should “unilateral[ly] withdraw…from the treaty.”

First, as to fact: the article states that “fear gave birth to the international legal regime.” This is partly true. The article states further “[t]hat space exploration and development had much to offer humanity was largely a rhetorical rather than practical imperative.” This is not true.

Eilene Galloway, the Founding Mother of space law, specifically documents that the “hope for peace” was the other force very much at play in the formation of the space legal regime. She was there when scientists educated the policymakers and enabled them to understand that space was, in her words, also available for ”purposes other than war: communications, weather, medicine.” Mrs. Galloway played an integral role in the extremely practical imperative of drafting the national and international legal agreements that promote and implement peaceful purposes. The result of her work and that of Paul Dembling and others is a body of national and international law that requires space be used for peaceful purposes; as well as the establishment of a then entirely new entity, the UN Committee on the Peaceful Uses of Outer Space.

Drafting and passing the National Aeronautics and Space Act; drafting five treaties that have entered into force; and, establishing a new institution is as far from rhetoric as can be possible. One may not like parts of the legal regime that is criticized, but to dismiss it as rhetoric is to reveal a lack of knowledge about the events that actually led to the creation of space law.

Second, the article’s opinion that the unilateral withdrawal by a major space power is called for can also be dismissed as uninformed. It argues that the fault with the Outer Space Treaty is its “core legal principle” that space is the “Common Home of Mankind.” Nowhere in the entire corpus of U.S. national space law or international space law does the phrase “Common Home of Mankind” exist. The Outer Space Treaty contains the “province of mankind” provision. The Moon Treaty contains the “common heritage of mankind” provision. Yes, res communis is the legal principle underlying both. However, they are not the same and cannot be used interchangeably. The “province of mankind provision” means that all nations have the nonexclusive right to use and explore space. The “common heritage of mankind” provision has yet to be defined as a matter of law and continues to be debated. The first term is why the Outer Space Treaty has been a success. The second is what has given rise to the difficulties associated with the Moon Treaty. The use of a nonexistent legal term that shares language similar to two actual terms of law, and with which the legal and political community are still grappling, demonstrates a failure to understand the challenge of formulating legal principles that are acceptable and of service.

Finally, the motive for the article’s position purports to be to allow States the right to appropriate territory to enable “property development.” If, as is advocated, a major space faring nation withdraws from the treaty the most likely result is that the others will promptly follow. The consequence will be an environment that lacks any legal certainty—the worst possible environment for development. As has been written elsewhere, even the now legally accepted principle that private entities are legitimate space actors would be undone. The source of the article’s complaint is not the law but the lack of political will to further define the law. There is some respected legal opinion that sovereignty is unnecessary to use space territory. Further, terrestrial law has scores of mechanisms that allow development without fee simple ownership of land: ports of authority; condominiums; cooperatives; separating land rights from resource rights. These are all available models that could succeed with the political will to do so.

The article articulates a sophisticated knowledge about the formation of political and governmental structures. With all due respect to this expertise, the legal analysis presented must be regarded as only one layperson’s opinion uninformed by legal expertise. Before advocating the destruction of a legal regime that has provided, among other things, a stable environment for existing commercial and scientific activities, effective criticism would contain more understanding about that which it seeks to have destroyed.