Washington Lawyer - December 2017 - 18
contamination of the cosmos and back-contamination of the Earth become real threats.
The Outer Space Treaty was very
much a product of its time. It was
designed to limit the downside for
the U.S. and the Soviet Union, and
to make sure that no one would
be hurt by coming in second.
K&L Gates LLP
Comprised of 17 short articles, the treaty delineated
the overarching principles to guide the peaceful
development of outer space to the benefit of
everyone. Built into the treaty was the promise
of a future that wasn't yet known, so the text was
purposefully designed to be flexible and open to
Much of that promise has been met, albeit at a
slower pace than some might have expected. For
the most part, space has not become a province for
war, though spy satellites abound, and many governments and corporations have freely invested in
exploring the cosmos, limited only by their imaginations and their pocketbooks.
Space development and travel have long been
the purview of the government, particularly in the
United States where NASA is synonymous with
space. Today the new space economy is driven as
much if not more by the private sector, as corporations look to opportunities in low-Earth orbit, the
surface of the moon, and beyond.
Space opportunities are flourishing, thanks to technological breakthroughs that result in miniaturization and advanced manufacturing, and have made
satellites smaller, launches cheaper, and remote
* DECEMBER 2017
Over the years, the United Nations fleshed out the
contours of the OST, building on it four additional
treaties that outlined the safety and rescue of
spacecraft and astronauts (1968), the liability
for damage caused by space objects (1972), the
notification and registration of space activities and
scientific investigation (1976), and the exploitation
of natural resources in outer space and the settlement of disputes (1984).
"The treaty has stood the test of time," says Pamela
L. Meredith, chair of the space law practice group at
Zuckert, Scoutt & Rasenberger, L.L.P. "It has not been
an impediment to commercial space development.
It has greatly influenced domestic legislation as well
as international and domestic policy on space. If we
look back to 1967, when the treaty was adopted, it
laid down some fundamental principles that have
held up quite well. It was also a springboard for
subsequent space treaties."
Another important tenet of the OST was its declaration on space ownership. The cosmos is open to
everyone, but no nation or private company can
claim ownership of space or celestial bodies. The
OST also was predicated on government space
programs working cooperatively with the civil
space industry over time.
While the broad-brush principles of the treaty
have held up, many space law experts believe the
doctrine is insufficient to regulate a more vigorous,
commercialized, and accessible cosmos. They say
the treaty is a foundation and must be supplemented with new international regimes and
domestic statutes to address the onslaught of
legal and regulatory issues arising daily.
"This is a treaty written 50 years ago," says Eric
Stallmer, president of the Commercial Spaceflight
Federation, an advocacy group for human space
flight." In theory, it's still a very good document. We
should be adhering to it. As the industry is evolving,
we need to evolve the rules of the road. In 1967
there were probably 20 to 25 satellites in space.
Now there are probably 4,800."
A FARSIGHTED ACCORD
Signed in January 1967, and entered into force in
October that year, the OST balanced the power of
the world's nuclear juggernauts: the United States
and the pre-breakup Soviet Union that were in
the midst of a heated space race at the time. Yet, it
also looked to protect the interests of other nations
that hadn't invested widely in space or Cold War
"The Outer Space Treaty was very much a product
of its time," says Paul Stimers, a partner at K&L Gates
LLP. "It was designed to limit the downside for the
U.S. and the Soviet Union, and to make sure that no
one would be hurt by coming in second."
The OST tasked its parties with avoiding the
"harmful contamination" of the Earth and celestial
bodies. Known as planetary protection, this
element of the treaty is a more futuristic concern
even today, and it will be decades before
The United States has long been a leader not only
in space exploration but also in building the legal
and regulatory groundwork for space development.
Using the OST as a base, it has layered on U.S. regulations to respond to advanced technologies and
new opportunities in every decade since the 1967
"As a general rule, we wanted space law to look like
terrestrial law," says Stimers. "We wanted it to be
Western in approach. We've taken a good first step
toward that in the United States."
In the 1970s, telephone and telegraph companies
launched satellites into space for the first time. The
government responded by using an old tool for a
new purpose, with the Federal Communications
Commission (FCC) licensing these early space
ventures under the Commission Act of 1934.
The Reagan administration commercialized
space transportation in the 1980s, contracting
with Lockheed Martin and Boeing for launch
vehicles and the launches themselves. In response,
Congress adopted the Commercial Space Launch
Act in 1984. The act was amended in 1988 to
include liability and risk-allocation provisions
for human space flight.
Remote sensing came of age in the 1990s, and the
United States enacted the Land Remote Sensing
Policy Act of 1992. While there were many restrictions on licensing for companies, there was great
opportunity in taking technology designed for
intelligence reasons and repurposing the data for
By the early 2000s, companies were developing
smaller and economical satellites in constellations that allowed more freedom in terms of
orbit location. The FCC responded with more