Updating Cold War-era Outer Space Treaty long overdue. But big hurdles loom.

There is widespread agreement the Outer Space Treaty needs updating, but it won’t be easy given the current state of international political division. Ely Sandler has an idea.

The international accord, which governs activities in space, was first established under the auspices of the U.N. in January 1967. Back then, few nations had ventured into space. “Star Trek” had just debuted on TV, and the Apollo 13 moon landing was still two years away.

Since then, military and exploratory activity by the U.S., China, the European Union, Russia, India, and Japan has surged. Private U.S. firms, like SpaceX and Blue Origin of the U.S. and China’s Orienspace, have launched rockets and satellites. Technologies have evolved, but the treaty has not kept up.

Sandler, a Belfer Center research fellow at Harvard Kennedy School, recently published an analysis of the dilemma. In this edited conversation, he details his proposal to advance discussions on space by adopting an approach being used to work on contentious climate change issues.

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How is space governed currently?

At the international level, space is essentially not governed. There’s one treaty that covers all of outer space — that’s the Outer Space Treaty. It was signed in 1967, at the height of the Cold War, and came out of arms control to try to stop the buildup of nuclear weapons in space.

It has a few general principles about how you should behave in space. For example, you’re supposed to give something called “due regard” to other spacecraft; you’re supposed to rescue other astronauts if they’re in distress. But those terms were never defined.

At the moment, almost all space law is domestic. If you want to launch a satellite from the U.S., you comply with domestic U.S. legislation. Same goes for Russia; same goes for China; same goes for the European Union.

Theoretically, the Outer Space Treaty has protocols for liability. If your object hits someone else’s object, it has a very theoretical standard for how you could resolve that dispute. But this treaty was never built upon. We didn’t have secondary legislation; we didn’t have common law; we didn’t have regulations. There are no standards for what you are and are not supposed to do.

So, in essence, there is no protocol for adjudicating disputes in space.

What are the most urgent issues?

Very short-term, I think the most pressing issue, together with space debris and space traffic management, is space situational awareness. We need to make sure that we put stuff in space that 1) doesn’t hit anything else, and 2) it comes down and doesn’t stay in space and create more debris. That is the issue we want to solve just based on the fact that we’re putting more satellites in space.

Looking out into the future, we’re going to have to figure out how to circumnavigate the lunar surface.

Within the next five years, you’re going to have at the very least Russia, China, the U.S., and India all back on the moon with semi-permanent presences. That’s going to start to be crunch time for figuring out how we interact with each other.

When you land on the moon, it spews up loads and loads of lunar regolith, the dust, rock, and other loose material on the surface. And so, you need rules of the road. This is also going to apply to Mars and further celestial exploration.

Where is the Outer Space Treaty, and the smaller accords that followed, falling short?

I think there’s two main problems. One is that they were not designed for the current era of space-faring which is driven by commercial companies. They were not designed to be regulating private companies. Technically speaking, what they say is that private organizations, if they were to launch satellites or spacecraft, would be governed by the launching state. But that was thought to be an impossibility — private space flight.

That meant also, because space was so much less used, they didn’t anticipate things like orbital debris. There is no international protocol for space situational awareness — making sure you know where your items are in space.

The other main one is space debris — making sure that we don’t accidentally have collisions that then create more collisions and eventually, there’s so much debris in space that we can’t, for example, use low Earth orbit.

Right now, there are about 14,000, maybe 15,000 satellites in orbit, but there are about 1.4 million objects larger than an inch that are floating around the Earth. The debris is little pieces of former satellites, stuff that’s come from spacecraft, that’s going many, many, many times faster than a bullet. And so, if it hits a space station or if it hits a person, it’s deadly.

There are many, many more things happening in space that we need to think about: The Outer Space Treaty doesn’t ensure safe circumnavigation of the moon, which is now a big deal. It’s unclear on whether or not you can use the resources you find in space.

But maybe the bigger problem is, even those issues which it set out to solve, there are so many undefined terms that it renders them essentially legally meaningless. It’s not just that it was not written for the current context, it’s that we never added meat to the bones of the treaty, and so it’s rendered it, in practice, empty of any binding constraints.

You say drafting a new treaty to address these things would be impossible and instead, propose establishing a Conference of the Parties, or COP, to create a set of definitions and protocols that guide everyone. How might that work and what are the benefits?

The irony is while there are some really contentious issues in space, there are a lot of things we all agree on. We all agree that once you put your satellites in space, you should deorbit them. We all agree that if you have a robust liability regime, it’s going to disincentivize collisions, which is good. We all agree that we should have protocols to communicate between satellites so they don’t crash.

The issue is we don’t really have a mechanism for that to become binding international law that we can then all use, and that’s because the era of treaty-making is definitely over.

What COPs allow you to do, and what they’ve done in other international areas including the environment, is make incremental progress by “thickening” the existing obligations of the treaties. The negotiators all get together and discuss the treaty itself and how it’s going and then, essentially, the minutes of those meetings almost become guidance to the original treaty.

The special thing about COPs is it becomes international law.

For example, there’s a U.N. subcommittee called the U.N. Committee on the Peaceful Use of Outer Space, where we have agreed on loads of things. But the U.N. subcommittee, by definition, is nonbinding. With a COP, those things become the definition under the treaty.

The other thing is if you have the same negotiators every year returning to the COP, talking about the same issues, it also maybe creates a forum where the U.S. and China can talk about space issues. At the moment, we don’t talk about it at all.

You can criticize the climate COP and say they’ve not been effective, but almost every year, almost every world leader comes together and talks about climate. That is an incredible venue for creating momentum, and that’s exactly what we need in space.

What would need to happen for a COP to move forward?

In writing the paper, I spoke with almost every space-faring nation. People really want regulation of space because everyone recognizes the benefits are high, and unlike climate, where decarbonization has an incredibly high cost, the costs here are really low, so it is to everyone’s benefit to do this.

The question is: Does skepticism between Russia and China, between China and the U.S., prevent everyone from acting in their own self-interest and coming together, combined with the current U.S. administration’s broader skepticism of international agreements and the U.N.? This is a political question.

And so, what we’re hoping to do in the next year is to do more work, talking to all of the different space-faring countries, in particular the British or the Indians, who are less politically sensitive to the U.S.-China divide, and try to see if this, or something like this, could begin to be proposed.

What is the likelihood that will happen?

The chances that in the next year we actually have a space COP are vanishingly slim. What we’re trying to do is say that there is more that can be done than signing a new international treaty that hands over custodianship of the moon to a sub–U.N. body and giving up entirely on international organizations. There are many, many ways in which nations can come together and solve very, very complex problems with solutions they all agree to.