Reconsidering the Rules for Space Security

Formative History

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Nancy W. Gallagher and John David Steinbruner
Reconsidering the Rules of Space

The legal provisions and more informal operating principles that currently regulate space activity reflect these features of the environment. Because the rules of sovereign jurisdiction that regulate use of airspace would be impractical to apply at orbital altitudes, that temptation was quickly precluded despite competitive antagonism between the two original space-faring nations, the United States and the Soviet Union. Although each was initially worried that the other might claim national jurisdiction in order to deny the legality of satellite overflight, as they assertively did in the case of airspace, both instead endorsed the principle that sovereign jurisdiction cannot be extended to space. This principle was formalized in the 1967 Outer Space Treaty (OST) along with the positive corollary that space is the province of all humankind and can be freely used for peaceful, mutually beneficial purposes. The two strategic antagonists were primarily interested in the use of space to stabilize deterrence and support arms control, so they conceded that they would have to tolerate similar uses by other countries in order to protect their own activities. The fact that this mutual concession was largely spontaneous, requiring little initial discussion or formal negotiation, indicates the power of physical circumstance. Both countries realized that unconstrained pursuit of competitive advantage would effectively preclude the development of space for any constructive purpose.