Professor Koplow on Art. 4

Amanda Berman Author

03/08/2019 Added

35 Plays

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Professor Koplow discusses Art. 4 of the OST.

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[00:00:01.110]Hello, I'm Amanda Berman
[00:00:02.660]from the University of Nebraska College of Law
[00:00:04.700]with our Space, Cyber and Telecommunications Program.
[00:00:07.250]Recently, the College of Law earned a grant
[00:00:10.350]from NASA Nebraska to create a space law network.
[00:00:14.300]To that end, we're creating these videos
[00:00:16.260]about general space law with some of the industry's experts.
[00:00:20.980]Today with me, is Professor Koplow of Georgetown University
[00:00:25.350]to discuss Article IV of the Outer Space Treaty.
[00:00:28.340]Professor.
[00:00:30.080]Thank you, and it's a great pleasure to be with you
[00:00:32.320]and to talk about one aspect of this very important treaty.
[00:00:35.780]I'm gonna zoom in on Article IV
[00:00:38.500]and try to dissect what it does and what it doesn't do.
[00:00:42.120]But let me give you just a bit of broader background.
[00:00:45.440]This treaty was negotiated
[00:00:47.750]shortly after the opening of the Space Age.
[00:00:50.370]In fact, one of the remarkable things about this instrument
[00:00:53.310]was the way it demonstrates
[00:00:54.940]that, sometimes, the international community
[00:00:59.010]can respond with remarkable speed and finesse
[00:01:04.650]in crafting new norms of international law quickly.
[00:01:08.820]Ordinarily, the process of negotiating in a treaty
[00:01:11.560]or creating norms of customary international law
[00:01:13.650]can take years or decades.
[00:01:16.490]And here, within 10 years, the world had come together
[00:01:20.310]on the fundamentals of the Outer Space Treaty
[00:01:22.323]that is still the most important norm in the areas,
[00:01:26.580]still the constitution for the exploration of outer space.
[00:01:32.220]But, as a result of that, the treaty is brief.
[00:01:35.430]It does not have the elaborate, dissected aspects
[00:01:40.720]that many more recent
[00:01:42.860]international arms control agreements have.
[00:01:44.570]It does not have the creation
[00:01:46.310]of an international organization.
[00:01:47.720]It does not have detailed specifications for verification
[00:01:52.420]of other countries' compliance with their norms.
[00:01:54.390]Instead, what we've got, is a pretty terse statement
[00:01:59.140]of a few proscriptions,
[00:02:00.920]and Article IV is a good example of that.
[00:02:02.860]And so, we can dive right into what it says.
[00:02:06.080]Article IV is often overstated.
[00:02:11.130]People often say that Article IV
[00:02:14.050]is a general prohibition on nuclear weapons
[00:02:17.760]or other activities of that sort in outer space.
[00:02:21.870]It's not quite that broad.
[00:02:24.040]So let's take a look at what Article IV says.
[00:02:27.000]Article IV requires that parties to the treaty undertake,
[00:02:30.160]and then there are three specific verbs,
[00:02:33.260]three specific actions, that countries cannot take
[00:02:35.910]with respect to nuclear weapons
[00:02:38.100]or other weapons of mass destruction.
[00:02:40.110]They undertake not to place those devices
[00:02:42.680]in orbit around the Earth.
[00:02:44.840]They undertake not to install such weapons
[00:02:47.310]on celestial bodies.
[00:02:49.610]And not to station such weapons
[00:02:51.160]in outer space in any other manner.
[00:02:53.540]And that covers a lot.
[00:02:54.610]In fact, that's why they were able to agree on that,
[00:02:57.190]was that it was the basic prohibition
[00:02:59.930]on what was seen at the time as the most threatening,
[00:03:03.620]the most dangerous aspects of activities
[00:03:06.020]that might stir a nuclear arms race in outer space.
[00:03:10.700]But, just as important,
[00:03:12.010]is what the treaty does not prohibit.
[00:03:14.640]First of all, this part of the Outer Space Treaty
[00:03:17.750]is confined only to nuclear weapons
[00:03:20.120]and other weapons of mass destruction.
[00:03:22.470]That means this part has nothing do to with other weapons,
[00:03:27.090]conventional weapons, laser beams.
[00:03:29.830]Other kinds of weapons
[00:03:30.910]that would not be weapons of mass destruction,
[00:03:33.820]not covered by this prohibition at all.
[00:03:36.550]Secondly, this provision does not cover other verbs
[00:03:40.910]that might be of interest, such as using a nuclear weapon
[00:03:44.980]in a transit of outer space, going from a launch on Earth,
[00:03:50.670]up into outer space and back to a target on Earth.
[00:03:54.520]There's a nuclear weapon going into outer space,
[00:03:57.240]but it is not in orbit around the Earth.
[00:04:00.250]It is not installed on a celestial body.
[00:04:03.130]It is not stationed in outer space.
[00:04:04.810]It transits outer space.
[00:04:07.240]And that's, I think, a good example
[00:04:09.870]of a general practice in arms control.
[00:04:13.430]It might not be too cynical to say,
[00:04:16.580]that what the negotiators undertook
[00:04:18.660]was to prohibit the specific activities
[00:04:23.560]that none of them was interested in doing anyway,
[00:04:26.090]or that none of them had the capability of doing
[00:04:28.770]and preserving the legal right to do the things
[00:04:31.580]they did want to do.
[00:04:33.210]In 1967, the countries thought
[00:04:35.350]they might want to have
[00:04:36.780]a continued legal process for using nuclear weapons
[00:04:41.530]on intercontinental ballistic missiles, ICBMs,
[00:04:45.140]or submarine-launched ballistic missiles.
[00:04:47.290]And therefore they did not prohibit that.
[00:04:48.930]It prohibited putting nuclear weapons in orbit,
[00:04:52.440]installing them on celestial bodies
[00:04:54.129](loud humming) (mumbles) in space.
[00:04:55.950]And that's a valuable contribution,
[00:04:57.580]but it's by no means everything.
[00:05:00.130]Second aspect of Article IV
[00:05:01.610]that we'll talk about more briefly is the second paragraph.
[00:05:04.520]That says the moon and other celestial bodies
[00:05:06.420]shall be used exclusively for peaceful purposes.
[00:05:10.380]There, it's noteworthy that peaceful purposes
[00:05:13.150]is a phrase that has its own ambiguity.
[00:05:17.670]Some people wanted to say that the contrast,
[00:05:22.130]the opposite of peaceful purposes is military purposes,
[00:05:26.800]and that the moon and other celestial bodies
[00:05:28.857]should be preserved for non-military applications only.
[00:05:33.140]The United States and, I think the dominant interpretation
[00:05:36.090]around the world, is different.
[00:05:38.430]The dominant interpretation is that the opposite of peaceful
[00:05:41.590]is aggressive, and therefore military activities
[00:05:46.060]on the moon and other celestial bodies are allowed
[00:05:48.100]as long as they are not aggressive.
[00:05:51.060]And the rest of that paragraph in Article IV
[00:05:53.780]says that you can't establish military bases,
[00:05:56.670]installations and fortifications,
[00:05:58.610]you can't test weapons of any type,
[00:06:01.270]you can't conduct military maneuvers on celestial bodies.
[00:06:04.480]But you can use military personnel for scientific research
[00:06:07.640]or other peaceful purposes,
[00:06:09.420]and the use of military equipment and facilities,
[00:06:13.210]in support of those peaceful purposes, is not prohibited.
[00:06:16.310]So that in a nutshell is what Article IV is all about.
[00:06:19.250]Tremendously important, a monumental accomplishment
[00:06:22.780]in the evolution of international law
[00:06:25.680]for peaceful applications in outer space,
[00:06:28.720]but at the same time quite a limited set of proscriptions.
[00:06:31.720]It's easy to overstate what Article IV
[00:06:34.260]of the Outer Space Treaty actually accomplishes.
[00:06:37.110]And, Professor, how do you see Article IV,
[00:06:39.980]do you see it changing or adapting
[00:06:42.110]with the rise of private sector space capabilities?
[00:06:46.260]So Article IV is not much concerned
[00:06:48.020]with private activities in outer space.
[00:06:50.260]The growth in the private sector activities in outer space
[00:06:53.580]probably not have much to do with Article IV,
[00:06:56.180]but there are other efforts
[00:06:57.830]to expand the coverage of Article IV,
[00:07:01.260]to elaborate additional tools
[00:07:03.360]of arms control in outer space.
[00:07:06.720]The sad story is that, so far, none of those proposals
[00:07:10.820]has gotten very far, and the immediate prospects
[00:07:16.370]for arms control in outer space
[00:07:17.960]that would elaborate the control regime
[00:07:20.330]beyond what's currently in Article IV
[00:07:23.509]is not a hopeful outlook.
[00:07:27.260]Well, thank you for your time, and for you diligence
[00:07:30.860]and your expertise on this matter.
[00:07:33.470]We really appreciate having you with us for this.
[00:07:35.857]Thank.

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Professor Koplow on Art. 4

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