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22  On Cosmic Law: 'An Earthly Start'
    The Washington Post, Saturday, December 17, 1966

     Cosmic Law got its earthly start last week with a draft treaty
to regulate the exploration of space.  As a manifesto of humanity's
aspirations to walk beyond the bars of our earthly prison, it is a
grave disappointment, full of compromise, obscurity and diplomatic
maneuver.  However, the health of our planet is so precarious that
any agreement whatsoever is a constructive symptom, and perhaps we
should not risk too vehement complaint.

     The treaty is vague enough that it may lead to serious confusion,
and might later be used as a propaganda club against us.  It would be
futile to suggest reopening negotiations on the text.  However, the
U.N. Assembly and Senate ratification hearings are still places for
clarifying interpretations by space scientists and jurists, as well
as national authorities.

     Of the 17 articles of the treaty, the most gratifying are the
first three, which forbid any "national appropriation by claim of
sovereignty," and dedicate "outer space, including the moon and
other celestial bodies" to "free exploration and use by all states...
in accordance with international law".  But what is that law for
outer space? The law of the high seas and the Antarctic treaty?

     The second major principle of the treaty is that astronauts
are regarded as"envoys of mankind" and deserve every facility for
safe return if stranded anywhere.  Does the phrase imply any
supra-national obligation of the astronaut?  What if he is involved
in surveillance or the development of intelligence techniques?
Is this consistent with his being an envoy of mankind entitled to a
safe return?  We already have a substantial investment in military
astronautics (the manned orbital laboratory).  The only perceptible
payoff from this is for surveillance, and we should clarify how this
commitment is to be reconciled with the treaty.

     The treaty binds earthly parties to strictly peaceful uses of the
moon and planets.  Military bases, weapons-testing, and maneuvers
are forbidden, but not very well defined.  Would a military
communications relay station on the moon be legitimate?  What is a
weapon?  The treaty specifically authorizes any facility necessary
for peaceful exploration: does this exception override the other
bans?  Is surveillance of the earth's surface a peaceful purpose?
Historically, the U.S. and the U.S.S.R., Cuba and China have been
perceived very differently by us and by our targets.

     The parties "undertake not to place in orbit around the earth
any objects carrying nuclear weapons?.  The military utility of
the orbital bomb has never been very clear, since a direct
suborbital launch delivers a payload without the extra costs of
orbital acceleration and re-entry.  When we move from the single
bomb to a large-scale system -- say tens of thousands of weapons
accumulated in orbit -- new patterns of annihilation may emerge:
the saturation of an antimissile defense, or an inexorable Doomsday
Machine to make the whole earth uninhabitable if a major power is
mortally attacked.

     Unlike the planetary bases, spacecraft are not designated for
any inspection, and what a tricky question this is.  Would we enjoy
any deviation of a COMSAT television relay station while the
satellite was being inspected?  What are the tolerable limits of
interference?  In fact, the treaty rigidifies national property rights
in spacecraft so as to make this a more delicate question than ever.

     The U.S. has hitherto been deeply concerned about inspection as
a feature of arms-control agreements.  It is rather astonishing
therefore to see an agreement where this has been totally sidestepped.
Having no inside information, I could only infer that our military
advisers saw no utility whatsoever in the orbital bomb, or else
knew other sources of the necessary intelligence.  Nevertheless,
why forego such a good chance to invigorate self-inspection: the rule
of law in each country that treaty violations are to be reported
to the U.N.  We can still legitimize such a policy, which is
consistent with the theoretical constitutional supremacy of treaties
in the organic law of the nation.  We need merely to publish the
procedures whereby U.S. nationals will be protected in their 
obligation (over-riding security classification?) to report evidence
of violation, openly offer asylum to nationals of other countries
who do likewise, and ask other nations to make similar unilateral
commitments.  Our nations now rarely encourage their citizens to
think, above all, of their obligations as human beings.

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