Objective: to provide a historical perspective on the current body of Outer Space Treaties, the cornerstone and foundation of space law and the youngest and perhaps most original branch of international law.

This paper combines glimpses into a not too distant past with a great deal of weighty political and legal considerations - all of which continue to maintain their original validity. This is true despite the relatively short period of time the law on Outer Space was conceived and progressively applied in the international legal and political arena.

The history of space law bears some parallel to the history of air law; the origins of both are closely linked to the spread of new technology. As Professor Diederiks-Verschoor - one of the leading space lawyers of our time - notes in her "Introduction to Space Law," it was the Wright's brothers engine-powered flight in 1903 that eventually led to a series of international conferences and agreements on rules and regulation for air traffic, in particular the famous Paris Convention of 1919.

In similar manner the first efforts to create a law on Outer Space followed the first ever flight of a man-made object into Outer Space in 1957. I refer of course to Sputnik I, although in the second half of the last century the time span between the first technological and the first legal event was cut by half. The reasons why reactions were so much quicker and more comprehensive after 1957 than at the still peaceful beginnings of the 20th century were eminently political. While the development of space law certainly owes something to such events as the International Geophysical Year celebrated at

the time of the Sputnik launch, and while some of its pages may have been taken out of the book of the Antarctica Treaties, global players provided a much stronger motive for development in the late fifties and early sixties of the last century. During this period the Soviet Union was under a new and dynamic leader, Nikita Chruchtchow, and a new round of competition started with arch-rival the United States under the Eisenhower then Kennedy Presidencies. The Soviet Union hoped to show the superiority of its system over the West and the Western alliance.

These years are characterised by a series of dangerous crises and Soviet brinkmanship. They led to such events as the building of the Berlin Wall and the Cuban missile crisis. The launch of Sputnik caught the US off guard at the time and was a signal that a new Pandora's Box of competition had been opened. Bruno Kreisky, later Austria's Chancellor and at the time a brilliant Foreign Minister with close ties to the US, explained the Soviet advance with tongue in cheek by noting that America might have developed Sputniks much earlier than the USSR had there already been a market for such objects in the US. We know today what direction that competition took and who “won.” This is true despite the fact that while the USSR managed to put the first man into space, Yuri Gagarin, it was Neil Armstrong who first landed on the Moon.

It is not easy to speculate, even today, on what made the two major players turn towards more peaceful uses of Outer Space. Firstly, we might assume that next to political considerations there must have also been economic considerations, namely the cost of moving (and maintaining) large military structures in Outer Space. This was most prohibitive in those early days.

As early as 1963, a few years before the conclusion of the Outer Space Treaty, the US and USSR reached a general understanding to ban the deployment of nuclear weapons or other weapons of mass destruction in Outer Space. Originally in the form of a bilateral agreement, it was later endorsed by the General Assembly of the United Nations.

Thus, the path lay open to enter into a wider agreement on the principles that would henceforth govern the activities of states in the exploration and uses of Outer Space. The history of the birth of the Outer Space Treaty, leading to its signing in January 1967 in London, Moscow and Washington, has been told many times and need not be repeated.

To quote one of the foremost authorities on modern air and space law, Bin Cheng, in an essay published on the 30th anniversary of the Outer Space Treaty: “the treaty was drawn up not only in some haste within the space of less than 12 months, but also less than ten years after the launch of the earth's first artificial satellite.” This was incidentally also the case in at least one other treaty, the 1968 Astronauts Agreement, while the period of gestation of the other three treaties were much longer.

Much has been said and written about its legal significance. There is general agreement that the Astronauts Agreement is and remains the cornerstone of an entirely new branch of international public law - the law of Outer Space. This law is original and innovative in many respects. In setting tight limits to the exercise of state sovereignty it creates a new ethic and spirit in relations between states. The traditional pages of international law are marked more strongly by “realpolitik” than to such mutually inclusive ventures as Outer Space co-operation.

Unlike the continents newly “discovered” by Europeans between the 16th and 19th centuries, Outer Space, including the moon and other celestial bodies, is not subject to national appropriation. And unlike the high seas, which since Salamis and Actium have been the theatre of decisive naval engagements, the exploration and use of space is for “peaceful purposes” only. It is innovative also in that, to this day, space law has attempted, albeit not always successfully, to move ahead of technological developments and create a secure legal environment for future scientific or economic activities. This character is perhaps best exemplified by the visionary dispositions of such follow-up treaties as the Magna Carta of Outer Space and the 1979 Moon Treaty.

By designating the Moon itself in Article II, and its natural resources as a “common heritage of mankind” (echoing a similar description for natural resources in the deep sea bed), a step was made towards a future regime for such resources, to be more broadly designed at a later stage. The scope of such a regime would be even wider, just as the provisions of the Moon Treaty are applicable “to other celestial bodies within the solar system, other than the earth.” Not surprisingly, this Treaty, although finally adopted by the General Assembly of the United Nations, has found only a few states willing to ratify and thus endorse its principles.

Initially, the only law making body in the field of Outer Space, the United Nations and its Committee on the Peaceful Use of Outer Space, needed to cope with opposing philosophies which its member states brought to this new subject matter. Thus, the United States and the Soviet Union, who together governed all major space activities for years, were primarily motivated by national security concerns. They aimed to allow some “conventional” military uses of Outer Space, some set in from the very beginning of the “Space Age.” Satellites soon became indispensable for military communications, reconnaissance or military weather forecasting. It is estimated that up to 75% of all satellites launched have some military applications.

Thus even the rules of the Outer Space Treaty are guarded in restraining national military activities. Article IV, the key provision, states that “the moon and other celestial bodies shall be used exclusively for peaceful purposes.” As for Outer Space generally, however, the only provision restricting military activities forbids the placing “in orbit around the earth of any objects carrying nuclear weapons or any other kinds of weapons of mass destruction or stationing such weapons in Outer Space in any other manner.” The “peaceful purposes” rubric applied to the moon and other celestial bodies is never defined in the Treaty, but presumably comprehends more than the simple prohibition of weapons of mass destruction applied to Outer Space in general.

The reason for the different treatment of “celestial bodies” and “Outer Space” in general was to accommodate nuclear ballistic missiles, which were just entering the arsenals of the US and the Soviet Union as the treaty was being negotiated. A major portion of the trajectory of such missiles is in Outer Space, but they do not go into orbit. The language of Article IV was carefully chosen to ensure that the general principle of “peaceful uses” would not interfere with the testing of these weapons.

The treaty also remains silent on the uses of military satellites for reconnaissance, surveillance, early warning and communications. The United States has always taken the position that such "passive" military uses are compatible with a doctrine of peaceful purposes. The Soviets, at first, seemed to take the contrary view. An early Soviet draft of the proposed treaty, drawn up at a time when the United States had a monopoly on observations satellites, contained a provision expressly forbidding these uses. The United States and its allies opposed this provision. They argued that international law did not forbid observation of a state from points outside its national territory, and that there was no sound justification for making an exception in the case of Outer Space. The Soviet Union eventually conceded on this point, but perhaps the change of position had as much to do with acquisition of the relevant technology as with the force of the US legal argument.

In any case, it is clear from this history that reconnaissance and other “passive” military satellites are not prohibited by the Outer Space Treaty. This conclusion has since been confirmed by the provisions of the ABM Treaty and other arms-control agreements in which the United States and the former Soviet Union endorsed the use of “national technical means of verification” to assure compliance, and agreed not to interfere with them.

Although only a few provisions of the Outer Space Treaty deal specifically with military activities - and those that do leave much ground uncovered - the affirmation of the basic principles of peaceful purposes and international co-operation in exploration and use nevertheless remained important for the construction and application of more specific agreements governing Outer Space activities.

On the other hand, the space for military activities left open by the 1967 Treaty created numerous controversies over the years. Efforts were made to complete its provisions to avoid a disturbing new trend, appearing in the hotter years of the Cold War: a growing militarisation of Outer Space.

These efforts were motivated by the early space powers, the US and former USSR, to use space not only for purposes of information and communication but also to develop "conventional" space weapons. The first of those weapons were anti-satellite weapons whose development started in the late 1950’s and brought to some perfection in the 1980’s.

It is not difficult to understand, therefore, that in the work of the UN Outer Space Committee, militarisation of Outer Space was one of the more contentious issues and the only one that threatened to seriously disrupt its work in the mid 80's. This issue also raised questions about the purposes of the Committee and the United Nations.

This was a prime example of the different attitudes of the Third World and the West towards international organisations such as the United Nations. The West treated the United Nations as a mechanism for reaching agreement on issues where agreement was possible and could serve a useful purpose. For developing countries the United Nations were a unique forum in which they could let their views be known to the world and exert the pressure of their numbers, even on questions where it was clear that there would be no practical effect.

Military and security concerns of the two initial space powers had a strong influence on the work of the UN Outer Space Committee, particularly its legal work, and it limited its membership. After the People’s Republic of China had been restored to UN membership in 1971 it refused to occupy its seat in the Committee due to domination of Soviet-American concerns. Albania, a close ally to China during this time, followed suit. It was only some years later that China took its sear, in view of the increasing importance developing countries attached to the Committee.

While the security concerns of the major space powers influenced the formation of space law, the “new majority” of the UN that became dominant in the early 60's brought in a different dimension. Developing nations wanted to use this new technology for their economic and social development. There was a particular fear that space benefits would remain limited to a small number of advanced countries. This view was clearly shared by U Thant who, as Secretary General of the United Nations, submitted a memorandum to the 1968 Vienna Conference on the Exploration and Peaceful Uses of Outer Space. He warned participants that “the space age was increasing the gap between the developed and developing areas at an alarming rate.”

This concern appears consistently in further developments of space law. In negotiations on a set of principles relating to remote sensing of the Earth from space, there was conflict between the principle of freedom of space activities and the general interest in acquiring global environment and resource data on the one hand, and the rights of countries to control access to their natural resources on the other. Consensus was reached on the principles of a general right to collect data and the right of the sensed states to have immediate access to any data collected over their territories.

In cases of both direct broadcasting and remote sensing, conflict intensified during the early stages by fears that the new and somewhat mysterious space technology would revolutionise television broadcasting in the first case, and exploitation of natural resources in the second. As the technologies developed and as the practical limits of operational systems became apparent, it became clear that the potential impact of the technologies had been somewhat exaggerated by agencies that had an interest in promoting them.

A similar conflict that remained unresolved concerned the rights of equatorial countries in relation to the geostationary orbit. A declaration adopted by the Committee in 1996, whose lengthy title refers to the conductor, the exploration, and uses of Outer Space “for the benefit and in the interest of all states, taking into a particular account the needs of developing countries,” reflects a further stage of the North-South debate on space co-operation. Whether, as some authors believe, it even marks the end of a contentious North-South debate remains to be seen.

What it does is combine the freedom of exploration and utilisation of Outer Space with a reminder to space powers to fulfil their obligation to conduct activities for the benefit of all countries. Space powers should foster international co-operation on an equitable and mutually acceptable basis. And indeed, international co-operation on the peaceful uses of Outer Space has helped in some measure to outbalance inadequacies felt in the legal and technical field.

The three Vienna Space Conferences, held in 1968, 1982 and 1999, have provided a certain measure of international co-operation and through it, created an atmosphere conducive to the further development of space law. The last UNISPACE Conference in particular provided much room for discussion of space law. It can be seen as a valuable contribution to space law and encouraging of its further development.

The UN Committee on the Peaceful Uses of Outer Space has created a substantial body of international space law, particularly by its legal experts in its relevant subcommittee. This body of law has underpinned a wide array of space law developed by other UN organisations, not least the ITU. It can also be regarded as the groundwork on which regional and sub-regional organisations have drafted various instruments of space law.

On the other hand, space law development has gone through a series of stages over the past years. As pointed out earlier, geopolitical developments such as the Cold War or the North-South conflict have influenced these stages a great deal.

Another aspect of a changing environment is the advent of new players in the field. For a long time states, mainly through their space agencies, were the primary and predominant actors in Outer Space. This was due to financial reasons first and foremost. In addition, there are a number of intergovernmental organisations involved in satellite operations. As these organisations are run and controlled by their member states they are also bound by international space law.

But other new players have started to emerge. Private industry has started to pick up activities in areas such as space transportation, satellite communications, or remote sensing, which had earlier been under state control. The Sea Launch Consortium may serve as a prime example. Private sector initiatives in the small launchers segment are serious competitors to state financed launchers. This development provokes a number of new questions concerning issues of responsibility and liability for private operators, the security of investments and so on.

The hot topic now among space lawyers is whether a renewed environment will also bring about a renewed blossoming of space law treaties and new efforts to regulate human conquest of Outer Space.

This question has to be seen in light of previous developments in Outer Space law and space treaties. Here one can see a clear difference between the first decades of space law that saw, after the entry into force of the historic Outer Space Treaty, the drafting and adoption of a few more classical legal instruments. Some such instruments were the 1968 Agreement on the Rescue of Astronauts, 1972 Convention on International Liability for Damage Caused by Space Objects, 1976 Convention on Registration of Objects Launcher into Outer Space, and the Moon Treaty, which entered into force in 1984.

After the Moon Treaty space law took the form of “principles,” the first of which was the “Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting,” drafted in December 1982. The most recent principle was the 1996 principles on “Space Benefits,” of which mention was made earlier. Another very important set of principles concerns remote sensing of the earth by satellites, as well as the use of nuclear power sources in Outer Space. While the importance of these principles is undeniable, their appearance certainly constitutes a significant departure from previous lawmaking procedures.

As mere “principles” their legal effect is smaller, at least initially, than that of previous conventions. While they could be important building blocks for the future, more mature space law should reflect a different philosophy by the major players in space politics. The difficulty to formulate legal obligations in regard to space debris is a case in point.

One reason for this development is a general public mood that first surfaced in the developed world and then became more and more global, namely to liberalise and deregulate national markets and consequently international economic relations. Such an atmosphere was certainly not conducive to the acceptance of new regulations in space, which subsequently saw the massive entry of particularly aggressive private sector players motivated by expectation of rapid growth and economic opportunity. These new players resisted the introduction of a legal framework, which they considered was an artificial barrier to their activities.

Next to economic considerations, national interest also played its part. National space agencies, not least those operating in some of the technologically more advanced countries, saw little merit in accepting new legal obligations of an international character. They preferred to cast their international relations in bilateral form. While accepting a responsibility to support the efforts of developing countries, these countries came to prefer the bilateral approach to assistance programmes.

Technological progress as well as new and multiple uses of Outer Space continue, creating new problems and challenges for which legal solutions are just as important as technical ones. While it remains debatable to what extent economic globalisation can safely and successfully continue without some degree of regulation, the global nature of space co-operation certainly requires universally accepted rules to stay on course and avoid lawlessness and conflict in Outer Space.

These developments will renew, at some stage in the future, the traditional role of the United Nations and its Outer Space Committee as indispensable instruments and fora for the further development of space law. Their universal nature is the best guarantee that interests and concerns of all nations can be met and compromise reached even while philosophies, religions, policies and strategies concerning the exploration and uses of Outer Space continue to be opposed.

The history of space law today is not limited to public international law, or even to multilateral treaties, though it is they that contain all the basis rules and principles on which the rest of the law is built. There is now a wide variety of bilateral treaties regulating space co-operation between states and state agencies. The United States alone had concluded, in a count made by distinguished space lawyer Eileen Galloway in 1990, that there are more than 1000 technical and scientific agreements with some 100 countries and international organisations.

Another page in the history of space law is national space legislation in the strict sense of the word. The US again took a leading role with the National Aeronautics and Space Act of 29 July 1958. The political importance of space at that time was underscored by the fact that the first body of the US Senate dealing with space matters, the Senate Special Committee on Space and Aeronautics, was chaired by none other than then-Senator Lyndon B. Johnson.

I do not wish to go into the history of these other branches of space law or discuss their relationship to the Outer Space treaties, but suffice it to quote Frans von der Dunk of Leiden University in the Netherlands: “international space law does provide basis for establishing national space legislation.”

Finally, any presentation of the history of contemporary space law would be incomplete without paying tribute to a first generation of space lawyers whose enthusiasm and resourcefulness contributed much to the quality of the body of space law, around which much revolves even today. Reading what they had to say at the first ever colloquium on the law of Outer Space, held at the Hague in 1958, one is deeply impressed by their foresight and almost unanimous call for the elaboration of principles of a new law of outer space. In the words of the great Arthur G. Haley, they placed “the moon and other natural objects beyond the jurisdictional or sovereignty claims of any nation on earth.”

Among the pioneers of space law whose role is not less important than that of the pioneers of space science and technology, we find such names as the late Steve Gorove, Eileen Galloway or John Cooper of the United States; Eugene Pepin and Jean Rivoire of France; Armando Cocca from Argentina; Irene Diederiks-Verschoer of the Netherlands; and Welf Heinrich Prince of Hanover, who as early as 1953 discussed problems of space and air law in his doctoral thesis.

To this list we can add other names like Manfred Lachs, who later served on the International Court of Justice; Soviet lawyers and diplomats like Prof. Piradov and Judge Verechchetine; Vladimir Kopal and Ljubos Perek of present day Czech Republic; and many others, some of whom are still active today.

A historic perspective of the first space treaties can show us much. Their history shows, in the first place, that space law as public international law is of an eminently political character. It bears the stamp of its time, like few branches of law, and tries to blend opposing tendencies and interests and find that all-important common denominator. Reflecting these factors, actors of power and influence would certainly be wrong to call space law simply, as was sometimes the case, pure “legal science fiction.”

On the other hand, space law is different. Despite its limitations it contains a strong breath of eternity and reflects many of the peculiarities of space that have often mesmerised legislators and writers and lead them to sometimes poetic and stylised descriptions of space.

Finally, space law is a good example of successful international - today we would say global - crisis management that has found solutions for a stable, permanent nature to something which, at the time that it appeared, must have seemed a formidable and dangerous challenge. In that regard, this lesson of history - and not just legal history - is worth remembering and applying to some of the challenges of our present day and age.

This article is the revised text of an address made to the American Astronautical Society International Space Law Workshop in Scottsdale, Arizona (USA) on 3 December 2001.

Dr Peter Jankowitsch, Federal Minister ret., Former Chair (1972 -1991) of the UN Committee on the Peaceful Uses of Outer Space (COPUOS)