Today in 1967: The U.S. signs the Outer Space Treaty

January 27, 2012

Today in Legal HistoryThis Wednesday, Republican presidential hopeful Newt Gingrich declared a pretty ambitious goal.

If he were to be elected president, “By the end of my second term,” Gingrich said, “we will have the first permanent base on the moon and it will be American.”

Perhaps he was simply being fanciful to garner political favor from the crowd – after all, he was speaking to a crowd in Florida’s Space Coast near Kennedy Space Center.

If he was serious, though, that’s a promise he may not be able to keep.

I can’t really speak for any scientific or economic limitations, but I do know of at least one legal obstacle that may prevent Mr. Gingrich’s lofty dream.

That obstacle is the Outer Space Treaty of 1967 (also known by its full name, the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies”).

The United States became a signatory to the treaty on January 27, 1967, forty-five years ago today.

Most people probably associate the treaty with its provisions on nuclear weapons – specifically, that nuclear weapons or other weapons of mass destruction shall not be placed in outer space or on any celestial bodies (including the moon).

That provision is indeed part of the treaty, and it was further one of the primary motivations for the U.S.’s signing and ratifying it (the U.S.S.R.’s space-faring capabilities combined with its nuclear ones during the Cold War made more than a few Americans a bit nervous).

However, that provision is just one article out of a total of seventeen, so there’s actually quite a bit more to the treaty than nuclear prohibitions.

As it relates to Gingrich’s promise, at least two of the treaty’s articles stand out.

The first is Article II, which 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.”

The provision contains many political loaded terms, but it basically means that no country may lay claims of sovereignty to the moon (or any other celestial body) or any portion thereof.

Newt GingrichAlthough this doesn’t destroy Gingrich’s dream outright, it does make it much more difficult for the proposed moon base to be exclusively American.

Still, since Article VIII states that a nation retains control and jurisdiction of the objects that it launches into space, Gingrich’s imagined moon base may be analogous to an RV parked at a campsite:  the U.S would own the base itself, but not the ground it is sitting on.

Thanks to yet another provision though (Article XII), that analogy isn’t quite accurate.

Article XII asserts that “[a]ll stations, installations, equipment and space vehicles on the moon…shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity.”

Thanks to this provision, foreign astronauts could come and go from the moon base as they please.

True, the U.S. could easily deny other countries access, but then it would probably also lose access to space installations and vehicles of other countries (the U.S. currently relies on Russia for transportation to the International Space Station).

But such denial of access may have implications back on Earth – namely, it would foster strong suspicions that the U.S. was hiding something in its moon base that it didn’t want anyone else to see.

Nevertheless, it still may be very possible to establish a base on the moon that is technically U.S.-owned under the treaty.

On the other hand, Gingrich’s comment that the base “will be American” invites imagery of an installation with operations and goals that are primarily national, rather than international, in character.

Under the current international law framework established by the treaty signed forty-five years ago, that dream may never get off the ground.