by Bill Sulzman

Current discussions about the application of International law to the issue of space usually focus on two treaties, the Outer Space Treaty (1967) and the ABM Treaty (1972). I will try to explain how both treaties affect our work for safe and peaceful uses of outer space with special emphasis on the Outer Space Treaty.

It is important to understand that the two core concepts of the Outer Space Treaty, PEACEFUL PURPOSES and COMMON HERITAGE (see end note) are really 'transnational' as opposed to international notions. They presume that the peoples(nations) of the world are pledging to operate differently in the space environment than they have been accustomed to acting in the earth's environment. In that sense the treaty is very idealistic and practical at the same time. Nationalism even in its international form is hand in glove with militarism. It is this bond which transnationalism hopes to break.

It is fair to point out that in the treaty itself the notion of transnationalism is not followed as the drafters (principally the USSR and the US) make specific applications of the idealistic goals of the document. Thus we have the classic difference between Article 1 and Article 3. Article one says space is to be reserved for peaceful purposes. Article three, as interpreted by the super powers, says everything is peaceful except weapons of mass destruction that are placed in earth orbit. Both countries were assuming that it was lawful under the treaty to send ICBMs through the space medium on their way to their earthbound targets. Under that loose definition everything the U.S. and other space capable nations have done in space is peaceful and thus lawful. On the other hand, if article one is the norm all the same activities are unlawful. Another point to keep in mind when discussing this matter with a US policy maker is that our government maintains that all US military activities are defensive and therefore peaceful under terms of this treaty and the UN charter.

Another basic understanding is that this treaty and almost all others are considered to be between nations and that nations, not individuals, have standing to call for their enforcement (there is another view of this which we will go into later). To further complicate the enforcement question, the International Court of Justice can only litigate a dispute if both parties agree beforehand to be bound by the court's decision. Without the good faith of its signors a treaty becomes a hollow shell. Case in point, the Outer Space Treaty.

The concept of common heritage is also problematic, because it is both transnational and anticapitalist. Multinational corporation see a great potential for exploitation of space resources. This had become a pivotal problem by the time of the drafting of the Moon Treaty(1980). It has never been ratified by the US and other key space capable nations.

There is another view of the binding nature of all treaties governing the conduct of war and related activities such as war planning and weapons production. One of the chief US advocates of this theory is Francis Boyle, professor of international law at the University of Illinois. I will greatly simplify his position for the sake of this argument. It goes something like this: Treaties under our constitution are considered to be "the supreme law of the land" (Article VI of the US Constitution). The United Nations Charter which outlaws war is such a treaty. The Charter for the conduct of the Tokyo and Nuremburg war crimes trials is such a treaty. A citizen of the US is bound to obey the UN Charter and the terms of any treaty governing the conduct of war.. This individual(citizen) responsibility is in line with the "transnational" concept we discussed earlier. Regardless of our national identity we have an obligation to honor international law. The clearest case for this regards weapons of mass destruction such as nuclear bombs. As we know space based resources are key to target selection and delivery systems of all ICBMs. Such systems are unlawful under the Outer Space Treaty. Many have used the arguments of Professor Boyle, found in his book "Defending Civil Resistance under International Law". We have asserted, sometimes successfully, that we have an obligation, in conscience, to uphold international law when our own government is breaking the law.

The ABM treaty is part of the SALT I agreement between the Soviet Union(now Russia) and the United States. It prohibits any space deployment of a system designed to shoot down an enemy's missiles. Even though it is only a bilateral treaty, it has been observed by other countries in the interest of avoiding an arms race in space. If the US with or without Russian cooperation acts to undermine the treaty it will open the door to such an arms race in space.

It should be noted that neither the ABM treaty nor the Outer Space Treaty in its weak interpretation bans anti-satellite(ASAT) weapons.

In conclusion I would make 2 final points. We need to demand that current laws regarding military activities in space be observed by all nations regardless of their relative size or political power. And we need an updated version of the Outer Space Treaty to deal with today's realities. If we do not do these things our species is doomed to extinction.

Bill Sulzman
Citizens for Peace in Space
Colorado Springs, Colorado

End Note:
The following legal correction has been submitted and is added here with the consent of the author of the main article (who is not a lawyer):

The Outer Space Treaty does not contain the Common Heritage principle--only the Moon Treaty does. The principle contained in the Outer Space Treaty is the "province of all mankind." (Article 1, paragraph 1) Nowhere in the Outer Space Treaty is the common heritage principle mentioned. The province of all mankind and common heritage principles are two very different principles with two very different meanings.

The "province of all mankind" principle specifically means that all nations have the nonexclusive right to use space. It does not refer to, nor does it imply any legal status regarding assests and/or property rights. The "common heritage" principle contained in the Moon Treaty comes from the negotiations in the Law of the Sea Convention and it refers to the legal status of property rights. The US, the former Soviet Union and the developing nations disagreed to the kind of property rights and that is why the Moon Treaty was not ratified by the US. The US did ratify the Outer Space Treaty and it does recognize the "province of all mankind" principle that all nations have the nonexclusive right to use space.

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