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Time to Revisit the Outer Space Treaty?

By William Vogeler, Esq. | Last updated on

At the height of the Space Race and in the chill of the Cold War, the world's most powerful nations reached an agreement that has remained largely intact for 50 years: The Outer Space Treaty.

It was 1967 -- only five years after the United States and the Soviet Union squared off in the Cuban missile crisis -- when the countries put down their weapons and agreed that space would not be militarized. Somehow, ironically after millions have died in conflicts around the globe since then, we have made it so.

However, legal minds ask, will the treaty survive a new space race?

Provocation and Response

Several years ago, hackers got into U.S. weather satellites and temporarily shutdown the network. In 2007, the Chinese government shot down its own aging weather satellite. Although it was short of a space attack, it left a trail of parts and accounts for more than 40 percent of space junk circling the planet.

Many say these were provocative acts and require appropriate response. U.S. Rep. Jim Bridenstine, for one, is calling for comprehensive space law reform.

"Fifty years ago there were two nations in space ... and our main concern was nuclear proliferation," he said. "Now, almost every nation on Earth has some sort of presence in space, and we have to be concerned with threats like jamming, dazzling, spoofing and hacking satellite constellations."

While the Outer Space Treaty bans nuclear weapons in space, it does not address threats such as hacking because the technology did not exist at the time. Bridenstine says American assets in space need to be updated and protected.

"Our current space systems are stovepiped, vulnerable, and expensive," he told the U.S. House Appropriations Committee. "Our next-generation space systems must be integrated, resilient, and affordable."

Holes in Space Law

The Outer Space Treaty is a seminal piece of space law, but it left many areas open for future consideration. One problem area is the treaty's provision for "direct attribution," which makes nations directly responsible for its citizens -- even if they are acting privately.

With more private companies launching rockets, orbiting satellites and exploring space tourism, direct attribution makes governments responsible. Rocket failures, falling debris and other accidents may land them in trouble.

Joanne Gabrynowicz, professor emerita at the University of Mississippi School of Law and editor-in-chief emerita of the Journal of Space Law, said there is no agency with jurisdiction over orbiting, commercial activity. That leaves "a big gap" in the law, she said.

"Space law is at the jagged edge between legislative and executive power," she told the ABA Journal. "Before the commercialization of space can truly take off, Congress must define the legal framework they will be operating under."

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