Regulating Actions in Outer Space
Secondary Provisions of the Outer Space Treaty 1967
Although Article IV (2) is the provision most directly relevant when considering the reservation of outer space for exclusively peaceful purposes, the Outer Space Treaty 1967 does contain other relevant provisions.
The Preamble
The Preamble to the 1967 Outer Space Treaty is the only place, aside from Article IV (2) to contain references to both peaceful purposes and weapons and so it has been suggested that the Preamble therefore also acts to reserve outer space for exclusively ‘peaceful purposes’.
Paragraphs three and five of the Preamble record the fact that the contracting States recognise that mankind is interested in the exploration and use of outer space for ‘peaceful purposes’ and also desire that there should be broad international cooperation in such exploration and use. It does not dictate that the said exploration and use must be exclusively peaceful. Further, it is a recognised principle of law that preambles to treaties rarely contain binding provisions and that they are in fact useful only as an aid to the interpretation of the Treaty provisions that follow.
Article I (1)
Like the Preamble, Article I (1) does not in fact contain an express reservation of outer space for peaceful purposes. It provides:
“The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific developments, and shall be the province of all mankind.”
Although keeping space peaceful is more likely to benefit and be in the interests of all countries than allowing military activity in space, given its highly general nature, Article I (1) cannot be seen to oblige the contracting States to use outer space for peaceful purposes.
Article IV (1)
The substance of Article IV (1) can be seen as being directly inspired by the Eisenhower Proposal and provides:
“States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.”
Given that the USSR and the USA had already reached a mutual understanding that they would not use nuclear weapons on space, this article adds relatively little to the restriction on the use of space but does serve to reinforce the fact that the international community wanted to be expressly certain that nuclear weapons and other weapons of mass destruction would not be permitted in space.
Articles IX and XI
Articles IX and XI respectively provide:
“…If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potential harmful interference with activities of other State Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before processing with any such activity or experiment. …”
“In order to promote international cooperation in the peaceful exploration and use of outer space, State Parties to the Treaty conducting activities in outer space, including the moon and other celestial bodies, agree to inform the Secretary-General of the United Nations as well as the public and international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, location and results of such activities. …”
It seems clear that both of these provisions merely promote international cooperation in the peaceful exploration and use of outer space and that, like the Preamble and Article I, they carry no suggestion that outer space can be used exclusively for peaceful purposes.
NASA Astronaut Bruce McCandless II
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