THE OUTER SPACE TREATY: AN OVERVIEW

AUTHORS:

Samkit Jain, NLU Jodhpur

Manav Bhagat, Nirma University

Subhadra, SOA National Institue of Law, Bhubaneswar

EDITOR: Varshita Girish, CAIL, Bengaluru




Introduction

International law has been considered as evolutionary, dynamic and keeps growing with the time. Even though it has been considered as soft law, but it has helped to govern the relations between the nations, also on different and common subject matters between the nation members. One such subject is being the usage of space and outer space. No legislation existed at the international or domestic arena to govern the usage of the space.

We can ponder upon whether sending a satellite on the moon is a valid activity or not. The legal subcommittee of the United Nations in the year 1966 decided to bring legislation for all the nations namely outer space treaty which would govern the usage of the space, activities of the nations all over the world in the terms of exploration and usage of Outer space, including the moon and celestial bodies. The treaty was established to ensure the peaceful usage of the outer space and to provide a framework for the development of the law of outer space.

The treaty was first opened to signature for the three countries which were United Kingdom, USA, and USSR. The treaty was opened for signature in January 1967 and it came into effect from October 1967. As of June 2020, 110 countries have signed and ratified the treaties into their domestic laws while 23 other countries have signed but not ratified the same. India signed and ratified this treaty in the year 1967.

The treaty has formulated certain principles and provides a legal framework regarding the usage of the space and activities in the space. The treaty states that space exploration and activities carried out should be for the benefit of all the nations and space is the province of mankind. Space is not owned by anyone, it is free for exploration and activities can be carried out by all the nations. No nation can make or assert its sovereignty through any occupation or any other means in the space or the outer space. Further, the treaty states that outer space, moon and other celestial bodies will only be used for peaceful purposes by the national members. No state can place any nuclear or other weapons which can cause mass destruction in the orbit or the other celestial bodies or the outer space in any manner.[1]

According to the treaty, the astronauts being sent in the space will be considered as the envoys of mankind. Every national or the state government will be held responsible for the activities carried out by the government or the non-governmental entities in the outer space or the celestial bodies. The state government will be held responsible for all the damage caused in the space by their space objects which could be anything from satellites etc. Moreover, the states are directed to avoid causing any sort of contamination in the outer space and celestial bodies. [2]


Brief History

The Outer Space Treaty was formally known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies and is considered to be the foundation of International Space Law. The USA by making the provisions of the treaty as the ‘law of the land’ by ratifying the treaty showed its commitment towards the protection of celestial bodies from contamination.

Scientists had begun to realise the importance of preservation of Space from contamination during its exploration. This contamination can be of two types – forward contamination, wherein the target celestial body is contaminated with bio-organisms from the source celestial body and backward contamination, wherein the source celestial body is contaminated with any variant of species that was brought back on the satellite from the target celestial body.

As awareness about the importance and necessity of planetary protection was spreading across the globe during the 50s, scientists from all over the world but the Soviet Union were endorsing the same. The only selfish reason behind this was that the Soviet Union had run several tests on its first Intercontinental Ballistic Missile at that time and was deep into the process of launching what would later be the first satellite that was ever launched by any country.

The United States and some of it allying nations had begun to submit draft proposals in the United Nations with guidelines to protect and preserve Space and its celestial bodies from contamination as early as in 1957. The first time when certain provisions were codified was the UN resolution of 1962 (XVIII). This made Space accessible free to use and explore to all the countries. Another UN resolution passed in 1884 prevented countries from locating any weapon which could be categorized as that of mass destruction at outer space. This two resolution later became the foundation on which the Outer Space Treaty was laid down.

The then Soviet Union and the USA submitted a draft treaty on safe usage of space, which does not contaminate any celestial body and not just the Earth in 1966 to the United Nations. This treaty was finally put into effect on October 1967 after being ratified by 3 countries vis-à-vis USA, UK, The Soviet Union, i.e. after 10 months after it was opened for signature in Washington, London and Moscow, earlier in the same year through resolution 2222(XXI).


Analysis of outer space treaty

The early lunar exploration has skilled several rough patches, which led to many international regulations regarding space exploration and the moon research especially. One of this regulation resulted in the formation of the outer space treaty, a world document, according to which the moon, as the only natural satellite of the earth, may be used for peaceful and educational purposes only. According to the outer space treaty, which played a vital role in the cold war, the moon is under the same jurisdiction as international waters. The treaty says that the moon can be used for peaceful purposes by all nations and it also prohibits weapons or military bases of any kind on the moon. The treaty was also important during the cold war when the U.S seriously considered dropping an atomic bomb on the moon to show its superiority.

The treaty aims to reaffirm that space exploration must benefit every state and all the states should be free to explore as they wish.

Despite the treaty covering nuclear weapons, one criticism of the treaty is that non-nuclear weapons are not mentioned. Which means that the countries are free to station non-nuclear weapons in space. As of now, it hasn't happened but it should be explicitly added into the treaty. Outer space treaty clearly states that the territory is not subject to national appropriation, this means that the private companies can make claims to celestial territory. Despite these loopholes and challenges, the treaty has formed the basis for an international law related to outer space.

Like other treaties, the outer space treaty also allows for amendments and withdrawal of members. It permits countries to purpose amendments. An amendment can only come into force if it's accepted by the majority of parties and only be binding to those countries who approve the amendment.


How India supports the outer space treaty?

India signed the outer space treaty in 1967. The country has always maintained that space must be used only for peaceful purposes. India ensures that Outer space is the heritage of humankind and it is the responsibility of all the nations to preserve and promote the benefits from advances made in space technology. The government has also mentioned that India is against the weaponization of space and support international efforts to strengthen the safety and security of space-based assets.


Conclusion

Even though the laws regarding this are considered to be soft law, the importance of planetary protection has dawned upon the world in recent times and more than 100 countries have signed the treaty. Barring a few considerations such as the inclusion of non-nuclear weapons in the prohibited list of weapons that are stationed in outer space, the treaty covers almost all the aspects of preservation of space and allows it usage for exploration in a peaceful manner and educational purposes. India has always understood the sanctity of outer space and has promoted and stood by the provisions that have been laid down to ensure planetary protection.

[1] https://www.unoosa.org/pdf/publications/STSPACE11E.pdf (last visited Jul 16, 2020). [2] https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html (last visited on 16/07/2020).

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