The Cold War, the Space Race, and the Law of Outer Space: Space for Peace [1 ed.] 0367753847, 9780367753849

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The Cold War, the Space Race, and the Law of Outer Space

The Cold War, the Space Race, and the Law of Outer Space: Space for Peace tells the story of one of the United Nations’ most enduring and least known achievements: the adoption of five multilateral treaties that compose the international law of outer space. The story begins in 1957 during the International Geophysical Year, the largest ever cooperative scientific endeavor that resulted in the launch of Sputnik. Although satellites were first launched under the auspices of peaceful scientific cooperation, the potentially world-ending implications of satellites and the rockets that carried them were obvious to all. By the 1960s, the world faced the prospect of nuclear testing in outer space, the placement of weapons of mass destruction in orbit, and the militarization of the moon. This book tells the story of how the United Nations tried to seize the promise of peace through scientific cooperation and to ward off the potential for war in the Space Age through the adoption of the Outer Space Treaty, the Rescue and Return Agreement, the Liability Convention, the Registration Convention, and the Moon Agreement. Interdisciplinary in approach, the book will be of interest to scholars in law, history, and other fields who are interested in the Cold War, the Space Race, and outer space law. Albert K. Lai is a member of the International Institute of Space Law, a global association that promotes the expansion of law in outer space.

Routledge Studies in Modern History

Engaging with Historical Traumas Experiential Learning and Pedagogies of Resilience Edited by Nena Močnik, Ger Duijzings, Hanna Meretoja, and Bonface Njeresa Beti Sun Yatsen, Robert Wilcox and Their Failed Revolutions, Honolulu and Canton 1895 Dynamite on the Tropic of Cancer Patrick Anderson Histories of Surveillance from Antiquity to the Digital Era The Eyes and Ears of Power Edited by Andreas Marklund and Laura Skouvig Children Born of War Past, Present and Future Edited by Barbara Stelzl-Marx, Sabine Lee and Heide Glaesmer The Cold War, the Space Race, and the Law of Outer Space Space for Peace Albert K. Lai Experiences of War in Europe and the Americas, 1792–1815 Soldiers, Slaves, and Civilians Mark Lawrence The Greek Revolution in the Age of Revolutions (1776–1848) Reappraisals and Comparisons Edited by Paschalis M. Kitromilides For more information about this series, please visit: www.routledge.com/history/ series/MODHIST

The Cold War, the Space Race, and the Law of Outer Space Space for Peace Albert K. Lai

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Albert K. Lai The right of Albert K. Lai to be identified as author of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-0-367-75384-9 (hbk) ISBN: 978-0-367-75385-6 (pbk) ISBN: 978-1-003-16230-8 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC

Contents

Acknowledgementsvi

Prologue: the international geophysical year

1

1 Right of overpass

11

2 Making space for peace

27

3 Making space for disarmament

48

4 Noninterference and nuclear weapons

63

5 The declaration of basic principles

86

6 The outer space treaty

105

7 Transition into détente

137

8 The peaceful uses of outer space

149

9 The commercial uses of outer space

175



194

Epilogue: a handshake in heaven

Bibliography196 Index 213

Acknowledgements

To everyone who sparked my lifelong interests in history, space, and law – my brother, Professor Paul B. Larsen, the organizers and competitors of the Manfred Lachs Space Moot Court Competition, my group of space law friends (you know who you are), and everyone else who indulged my musings on these subjects. And to those who served as sounding boards for drafts and pitches, especially Adam Bain. This book would not be possible without all of you. Special thanks to Christina Maria Calce. Friend. Officiant. Mentor. Big Sister. And the best space law moot court coach anyone could get.

Prologue The international geophysical year

The decision to go to outer space originated in a boxy, redbrick home located on Meurilee Lane in Silver Spring, Maryland, on April 5, 1950. The home in question was that of Dr. James Van Allen, the man later credited with the discovery of the Van Allen radiation belts. During a dinner party that evening, Van Allen and his wife hosted several distinguished scientists. These included Sydney Chapman, Lloyd Berkner, Harry Vestine, Wallace Joyce, and Fred Singer. The men were all scientists of a relatively new breed, geophysics.1 Geophysics is the study of the earth’s physics as a whole. Geophysicists seek to understand matters such as the movement of the earth’s crust, the temperature of the earth’s interior, the movement of the oceans, the variations in the magnetic field, the nature of the upper atmosphere, and the weather. Unlike most other scientific fields, geophysical research cannot be done by a single laboratory or a few laboratories repeating experiments. By its nature, geophysical research requires tremendous amounts of data from all corners of the globe. Only by gathering data from around the world over a long period of time can precise changes of the earth be discovered and theories about the earth’s nature confirmed or rejected. The study of geophysics as an independent scientific discipline began to emerge in the early nineteenth century. Geophysical research initially focused on the study of three particular phenomena: weather, magnetism, and auroras. Weather in different parts of the world is interrelated. That much seemed obvious from the inception of meteorology. It followed then that understanding the world’s weather required information about weather conditions from all regions. In the 1840s, the U.S. Naval Observatory began the effort to centralize the collection of this information. The Observatory gathered ships’ logs on weather from vessels plying the high seas. In 1853, a treaty internationalized this data collection effort. Ten nations – Belgium, Denmark, France, the Netherlands, Norway, Portugal, Russia, Sweden, the United Kingdom, and the United States – tasked their warships with the responsibility to systematically record weather conditions. The ships’ logs were pooled to develop the first glimpses of global weather patterns. The study of geomagnetism similarly required an international data collection effort. Since the seventeenth century, mariners had been aware that a compass does not point perfectly north. A compass needle’s orientation varies slightly from place to place, and the needle tip tends to dip down when traveling north. These

2  Prologue variations, though slight, were important for long-distance navigation, which was gaining in importance with the rise of colonial possessions and global empires. A naval expedition in 1825 identified the earth’s magnetic equator – the point at which the compass needle no longer dips. The expedition found that the magnetic equator differs from the earth’s geographic equator. Another expedition in 1833 found the northern magnetic pole – the point where the compass needle dips the most – in Hudson Bay, Canada. To better understand the earth’s magnetic field, the British and Russian Empires established a worldwide magnetic observation system. The empires tasked stations with recording variations in the orientation of a compass needle at regular intervals. Observations taken from this system over time revealed fluctuations in the earth’s magnetic field, now known as magnetic storms. Research into the aurora borealis required another international effort. Little was known about auroras in the nineteenth century. Scientists sought to understand what caused them and at what altitude they occurred. Early theories suggested that auroras were related to geomagnetism and that auroras appear near the south pole when observed in the north. To test these theories, geophysicists needed more comprehensive data on magnetism to find a correlation between auroras and magnetic storms. Simultaneous observations were also needed near the Arctic and Antarctica to verify whether auroras always appear at both poles simultaneously. Finally, with the advent of photography, scientists wanted to take photographs of the same auroral events from different points at the same time to triangulate the altitude of auroras. By the late nineteenth century, the scientific community began to understand the importance of international coordination and systematic data collection efforts. Scientific discovery in the nineteenth century tended to focus on individual expeditions. These expeditions were forays into the wild unknown, like the Lewis and Clark journey across the United States, Henry Morton Stanley’s voyage into the Congo, and the numerous ships sent into the frigid waters of the Arctic to find a Northwest or Northeast Passage. In 1875, an Austro-Hungarian naval officer named Carl Weyprecht tried to change that. Weyprecht had just completed his own shipboard expedition in the Arctic from 1872 to 1874. The expedition had come at enormous cost, and his ship was lost in the process. Although the expedition had discovered the previously unknown archipelago of Zemlya Frantsa Iosifa, Weyprecht felt that a true understanding of the polar region had not been advanced. Expeditions were exciting adventures that promised to reward explorers with glory. But scientific advancement needed dry, systematic, and synchronous observations that generated standardized data. Geophysical research called upon the skills of the meticulous scribe who diligently records data at regular intervals, not the bold exploits of an Indiana Jones-type adventurer. As a result of Weyprecht’s efforts, the first attempt at international scientific investigation occurred during the International Polar Year of 1882–83. Eleven nations pooled their efforts to synchronize their observations on the climate, weather, magnetism, and other subjects in different parts of the world. The nations participating were Austria–Hungary, Canada, Denmark, France, Germany, the

Prologue  3 Netherlands, Norway, Russia, Sweden, the United Kingdom, and the United States. By synchronizing data collection in different parts of the world for one year, scientists hoped to find patterns in the data that transcended local phenomena. As suggested by the name of the program, the data collection effort focused on the poles, and specifically the north pole. It was thought that studies of the poles would reveal the most information about weather and magnetism, and the poles were the only place to study the appearance of auroras. The International Polar Year of 1882–83 was a limited success. A significant problem was that, due to the logistical limits of the era, each expedition had been organized individually by nation with varying success. Once the expeditions were in the field, language barriers and lack of long-range communication technology prevented the teams from cooperating. When the expeditions returned home, the data that had been collected were of limited use. To achieve synergy, the data from all expeditions had to be centralized and collated into a standardized and usable format. That was not really done. In the end, the International Polar Year was more like a series of internationally coordinated expeditions that happened to occur at the same time rather than a cooperative effort. Fifty years passed before geophysical research made another attempt at widespread international cooperation. During that time, developments in the sciences addressed many of the problems exposed by the International Polar Year. Strides had been made in the standardization of data collection. In 1891, a group of European states created the International Meteorological Organization, a precursor to today’s World Meteorological Organization. This organization emphasized the need for uniform and systematic data collection over a large area. By the early twentieth century, over 450 land-based weather observation stations had been established, each supported by telegraphic cables and spaced apart so that two stations existed for each 10° latitude/longitude quadrangle on a global grid. Data from all observation stations were sent to the London Meteorological Office, which compiled monthly reports. Advances had also been made in communication. The invention of the radio meant that scientific observations over long distances could now be synchronized more easily. Finally, international scientific research had become organized. Scientists were establishing more international associations, and a new umbrella organization was formed to coordinate those associations. After some disruption caused by the First World War, the umbrella organization became known as the International Council of Scientific Unions in 1931. The Council acted as an international forum for various scientific disciplines, including astronomy, biology, chemistry, math, and physics. In the 1920s, the scientific community decided that the time was ripe for another cooperative effort and prepared for the Second International Polar Year of 1932–33. This time, 45 nations joined to launch 50 scientific expeditions. The Second International Polar Year offered the opportunity to repeat experiments and observations taken 50 years earlier from the same locations to identify any changes. The Second International Polar Year would also be far broader in scope than the first. More expeditions would be sent to the south pole and observations at the equator and in the southern hemisphere were to be increased generally. The

4  Prologue most significant expansion in international cooperation was in the observation of the sky. Two developments since the first International Polar Year made research of the atmosphere both possible and critical. The first was the invention of the radio. In 1902, Guglielmo Marconi proved that the upper atmosphere was ionized by sending a radio signal from Poldhu, England, to Newfoundland. Because radio signals travel in a straight line, the curvature of the earth should have prevented the radio signal from being received. Marconi’s signal across the Atlantic was evidence of an electrified layer in the atmosphere that allowed the radio signal to bounce back and forth between the atmosphere and the ocean until it reached Newfoundland. More research was needed to understand why the atmosphere was electrified and how long-range communication might be improved by using the ionized atmosphere. The second development was the invention of flight. The rise of civil aviation meant that pilots needed a better understanding of the atmosphere. There were also hopes that airships could provide access to previously unreachable areas and create new trade routes through the polar regions. Unfortunately, the Second International Polar Year of 1932–33 was also only a limited success. This time, the problem was not lack of capabilities but circumstances. The Great Depression struck on October 29, 1929, when the effort was still being organized. Global economic collapse led to a scarcity of funding for scientific research. Indeed, the entire program might have been canceled but for a substantial grant by the Rockefeller Foundation. Many of the originally planned expeditions and observation efforts had to be canceled. After the Second International Polar Year ended, the outbreak of the Second World War in Europe in 1939 hampered the compilation and use of the data that had been gathered. Some data was even permanently lost as a result of the war.2 When the small group of geophysicists met at James Van Allen’s home on April 5, 1950, their goal was to address the paucity of data for geophysical research. The Second International Polar Year had occurred recently enough that both Dr. Van Allen and Professor Chapman had participated in that effort as younger scientists. By now, however, the usefulness of the data collected during the Second International Polar Year was fading, and the lack of new data was beginning to stunt studies in geophysics. Geophysicists needed new data on ocean levels, temperature, the magnetic field, weather, the upper atmosphere, and cosmic rays, just to name a few subjects. The data had to be collected consistently, systematically, and from numerous points on the earth. Finally, to identify changes in the earth over time, the data collection effort had to be maintained over a long period, perhaps years. By the end of the dinner party at Van Allen’s home, the geophysicists agreed to attempt to organize a third International Polar Year.3 As with the Second International Polar Year, the International Council of Scientific Unions became the focal point for coordinating the international effort. Because the subjects for scientific investigation quickly expanded beyond the poles, the Council decided to name the endeavor the International Geophysical Year rather than the Third International Polar Year. The Council created the Special Committee of the International Geophysical Year, often known by its French

Prologue 5 acronym CSAGI, to organize the effort. The committee decided that the International Geophysical Year should extend from July 1, 1957, until December 31, 1958. The hope was that this 18-month period of continual data collection would be enough for geophysicists and scientists in other fields to identify long-term global patterns.4 At an early stage, the organizers of the International Geophysical Year made sure that they learned from the mistakes of the international polar years. One factor that had limited the success of the international polar years was the failure, or inability, to compile the data after the international program ended. To address this problem, the committee established three World Data Centers. The committee located the first data center in the United States, the second in the Soviet Union, and the third in a combination of Australia, Europe, and Japan. Scientists sent information gathered during the International Geophysical Year to one of these data centers, and each data center sent a copy of any information it received to the other two data centers. This procedure ensured widespread dissemination and availability of the data as well as preservation of the information in the event of a disaster at one data center. These World Data Centers remain in operation today.5 During the initial planning stages of the International Geophysical Year, scientists from two nations were conspicuously absent: The Soviet Union and the People’s Republic of China. Although the International Council of Scientific Unions was apolitical, neither communist nation had scientists that participated in the organization. The Council nevertheless extended invitations to the Soviet Academy of Sciences and the Academia Sinica in Beijing. Only in 1954, four years into planning did scientists from the Soviet Union indicate an interest in joining the effort.6 The participation of Soviet scientists at first threatened to introduce Cold War disputes into the International Geophysical Year. The representative from the Soviet Academy of Sciences, Vladimir Belousov, asked for an expansion of the Special Committee organizing the International Geophysical Year. He argued that the committee should include scientists from the Soviet Union, the People’s Republic of China, and other large countries like India. At the time of the request, Western scientists dominated the Special Committee. The committee included British geophysicist Sydney Chapman as president, American geophysicist Lloyd Berkner as Vice President, and Belgian physicist Marcel Nicolet as secretary-general. The Soviet Union’s quest for representation on the Special Committee was part of a broader effort by the Soviet Union during the 1950s to seek equal representation with the West at the United Nations and other international associations. The problem with the Soviet request was that the International Council of Scientific Unions is a nongovernmental organization. The scientists serving on the Special Committee are not representatives of their nation in the way that a delegate represents a country at the United Nations. Rather, the scientists merely happen to be from particular countries. This distinction was not always appreciated in practice. The organizers of the International Geophysical Year eventually found what was essentially a political compromise. They added two Soviet scientists and a French scientist to the Special Committee. As a result, the Special Committee

6  Prologue included at least one scientist from France, the Soviet Union, the United Kingdom, and the United States – all nations that were permanent members of the U.N. Security Council except China.7 The question of Chinese participation in the International Geophysical Year dragged the Special Committee into another political dispute. The problem – still extant today – was that two governments claimed to represent the whole of China: The communist People’s Republic of China in Beijing and the nationalist Republic of China on the island of Taiwan. The Special Committee had invited the scientific academies in both territories to participate in the International Geophysical Year, but neither replied. After Soviet scientists joined the program, Chinese scientists from Beijing sought to participate. Fearing that the participation of scientists from communist China would jeopardize its claim to represent all of China, the nationalist government prodded scientists at the Academia Sinica in Taiwan to protest that it had not been invited. The demand for participation by scientists from Taiwan then prompted the scientists from communist China to announce that they would withdraw from the International Geophysical Year if the Special Committee allowed Chinese scientists from Taiwan to participate as a separate group. Communist China feared that this was tantamount to a recognition of two Chinas. The Special Committee attempted to remain apolitical in accordance with the constitutional principles of the International Council of Scientific Unions. The Special Committee decided that scientific cooperation should not be restricted. The Special Committee allowed scientists from both territories to participate. This was unacceptable to the communist Chinese government. The Academia Sinica in Beijing withdrew just before the start of the International Geophysical Year, although the Special Committee implored them to stay. The loss of mainland China, the third largest nation in the world by landmass, was a blow to the International Geophysical Year, but it was not a total loss. The scientists in mainland China had already prepared to take scientific observations. Despite withdrawing from the International Geophysical Year, the scientists collected the data and passed their information on to the Soviet Union under bilateral cooperation. The Soviet Union, host to one of the three World Data Centers established by the International Geophysical Year, then passed the data to the other World Data Centers for use by scientists everywhere.8 The International Geophysical Year was ultimately an immense effort in scale. The program was far broader than either of its international polar year predecessors. Scientists from 66 nations and colonial territories participated. This level of participation amounted to two-thirds of all nations at the time. Estimates place the cost of the International Geophysical Year at anywhere between $500 million and $2 billion in 1950s dollars. Approximately 100,000 scientists and support personnel participated. Nearly 2,500 land-based observatories had been established, and numerous vessels and aircraft were deployed around the world.9 A principal area of scientific investigation during the International Geophysical Year was Antarctica. Antarctica was truly the last frontier on the earth. The first International Polar Year had launched only limited expeditions to the southern hemisphere. Financial constraints during the Second International Polar Year

Prologue 7 forced the cancellation of systematic expeditions to Antarctica. There was still no understanding in the 1950s as to whether Antarctica was a continent or a series of islands covered in ice. A dozen nations coordinated their efforts to establish research stations at optimal distances across Antarctica to gather as much information as possible and avoid duplicative efforts. The United States took on the responsibility of establishing a station at the geographic south pole. The Soviet Union accepted the even more dangerous task of reaching the Pole of Inaccessibility, the point geometrically furthest from any shoreline. In other words, the most remote location in Antarctica. In one of the most amazing stories of human endurance and perseverance, the Soviet expedition slowly crept toward and finally achieved its goal of establishing a camp at the Pole of Inaccessibility.10 Another principal focus of the International Geophysical Year was scientific investigation of the upper atmosphere. The Special Committee had specifically timed the International Geophysical Year between July 1957 and December 1958 to coincide with a period of peak solar sunspot activity. The elevated sunspot activity increased the opportunities for scientists to gather data on the effects of solar radiation on the earth’s upper atmosphere. The data could then be used to better understand the nature of the earth’s magnetism, the ionization of atmospheric layers, and provide proof of the suspected correlation between sunspot activity and the appearance of auroras. Rockets developed during and after the Second World War were key to facilitating the investigation of the upper atmosphere. The use of sounding rockets to gather data on the atmosphere was not new. Before the Great Depression forced the Second International Polar Year to be scaled back, plans had been made to launch sounding rockets up to an altitude of 50 miles. After the Second World War, the United States was capable of launching scientific instruments up to an altitude of approximately 130 miles using captured German V-2 rockets. With some improvements, the United States was able to reach an altitude of 244 miles, well into outer space, by 1949. The Soviet Union had also captured German V-2 rockets and was likewise able to launch sounding rockets into outer space. Meanwhile, the United Kingdom had developed its own rocket, the Skylark, capable of reaching an altitude of 130 miles.11 The organizers of the International Geophysical Year coordinated the launch of sounding rockets. Sounding rockets were fired under one of the following two conditions. First, sounding rockets were launched simultaneously around the world at preselected times on “Regular World Days.” The intent was for these launches to provide scientists with a snapshot of the earth’s upper atmosphere as a whole. The second situation in which sounding rockets were launched was immediately after a “World Warning” alert. Throughout the International Geophysical Year, astronomical observatories and magnetic stations were on high alert for any solar flares. Upon detecting a solar flare, these observatories and stations alerted the World Warning Agency located at Fort Belvoir, Virginia. The World Warning Agency then issued a flash radio alert to rocket teams associated with the International Geophysical Year. These rocket teams in the Soviet Union, the United Kingdom, and the United States then rushed to their stations. They

8  Prologue fired off sounding rockets as quickly as possible in the hope of capturing data on the upper atmosphere just as the solar flare struck. The usefulness of sounding rockets was unfortunately short-lived. The rockets and the scientific equipment that they carried remained in the ionosphere for only a few moments before tumbling back to the earth. Geophysicists were well aware that studies in their field could be advanced considerably if only there was a way to keep the instruments in the upper atmosphere. If this could be achieved, data could be transmitted from the upper atmosphere continuously via radio, providing an uninterrupted stream of information. James Van Allen himself had been a proponent for the launch of an artificial satellite even before the dinner party he hosted for the organizers of the International Geophysical Year.12 Satellites also promised to advance scientific investigations in other fields. With a view of the earth from orbit, weather patterns could be observed on a global scale. The origin and formation of meteorological phenomena like hurricanes and typhoons could be studied systematically for the first time. The locations of continents could be measured with more accuracy to improve maps. The movement of the earth’s crust could be measured, and the theory of tectonic plates confirmed. Ocean levels could be recorded and the tides tracked. Shifts in the magnetic field could be continually monitored. All of this could be done without the need for thousands of individual observation stations around the world. Geophysical research prior to the satellite was like the parable of the blind men and an elephant. Scientists were trying to describe the earth like blind men trying to describe an elephant by feeling different parts of it. Over time, increased international cooperation had allowed geophysicists to better describe the earth. But this was akin to having more blind men feel the elephant. What a satellite offered to do was remove the blindness altogether. In 1954, the effort to launch a satellite began to crystallize. In March of that year, American scientists submitted a proposal to the Special Committee for the International Geophysical Year. They suggested that one of the International Geophysical Year’s programs include the launch of an artificial satellite. The Special Committee quickly adopted the proposal and urged that as many other nations as possible consider the possibility of launching satellites. The following year, on April 15, 1955, the Soviet Union responded by announcing a plan to launch a satellite during the International Geophysical Year. On July 29, 1955, the United States followed suit and announced plans to launch a satellite as well.13 On October 4, 1957, the Soviet Union launched Sputnik, the world’s first artificial satellite. The satellite was small and contained only one scientific instrument, a radio that transmitted at two different frequencies. The higher frequency at 40 MHz had been expected to pass easily through the earth’s ionosphere. The lower frequency at 20 MHz was believed to be the lowest frequency range that could penetrate the ionosphere. By pairing the two radio frequencies, scientists could learn about the thickness and composition of the ionosphere as the 20-MHz signal faded in and out, while the 40-MHz signal allowed for continual tracking of the satellite. Professional scientists and amateur radio operators could listen to the distinct sound of two interchanging beeps. The age of outer space exploration had begun.

Prologue 9 Many histories about space exploration and the Space Race start with the military origins of rockets. These stories tell about the invention of the Nazi “vengeance” weapons during the Second World War. They talk about the Soviet Union and the United States racing to seize Nazi rocket technology like vultures over the corpse of a dying regime. But the actual decision to go to outer space has an altogether different origin. The decision was not one borne out of hate or ambition to conquer, but rather from science and the spirit of discovery. The decision to go to outer space evolved naturally as the next step for the scientific investigation of the earth after generations of studies by other methods. The fact that the decision to go to space was rooted in scientific exploration set the tone for the future development of outer space law and served to limit the Cold War in space. Because the first steps to space had been peaceful ones, the international community had little tolerance for either the Soviet Union’s or the United States’ inclination to use outer space for military purposes. Indeed, a presumption instantly formed that outer space should only be used for peaceful and scientific purposes. The superpowers, each eager to secure public opinion for their cause, responded by emphasizing scientific pursuits in space and limiting their efforts to militarize the new arena.

Notes 1 Susan Bar and Cornelia Ludecke, The History of the International Polar Years (Berlin: Springer, 2010), 235; James Van Allen, “Interview of James A. Van Allen by Brian Shoemaker,” Interview by Brian Shoemaker, Polar Oral History Program, 18 November 1997, Transcript 18, available at https://kb.osu.edu/handle/1811/33918; James Van Allen, “Genesis of the International Geophysical Year,” John Hopkins APL Technical Digest, Vol. 6, No. 4 (October–December 1985): 367–368, available at www.jhuapl. edu/Content/techdigest/pdf/V06-N04/06-04-VanAllen.pdf; Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 20–22. 2 Alexander Marshack, The World in Space (New York: Dell Publishing Co., Inc., 1958), 101–104, 134–136; Walter Sullivan, Assault on the Unknown (New York: McGrawHill Book Company, Inc., 1961), 6–9, 15–19, 22–26; Susan Bar and Cornelia Ludecke, The History of the International Polar Years (Berlin: Springer, 2010), 1–4, 9–10, 22–23, 41, 45, 58, 109–111, 127, 138–139, 164, 211–215, 219, 221, 225, 227–228. 3 Susan Bar and Cornelia Ludecke, The History of the International Polar Years (Berlin: Springer, 2010), 235; James Van Allen, “Interview of James A. Van Allen by Brian Shoemaker,” Interview by Brian Shoemaker, Polar Oral History Program, 18 November 1997, Transcript 20–21, available at https://kb.osu.edu/handle/1811/33918; Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 22–26, 30; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 168. 4 Susan Bar and Cornelia Ludecke, The History of the International Polar Years (Berlin: Springer, 2010), 238; James Van Allen, “Interview of James A. Van Allen by Brian Shoemaker,” Interview by Brian Shoemaker, Polar Oral History Program, 18 November  1997, Transcript 23, available at https://kb.osu.edu/handle/1811/33918; Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 22–26; Harrie Massey and M.O. Robbins, History of British Space Science (Cambridge: Cambridge University Press, 1986), 34–35; Stephen E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space Co-Operation

10  Prologue

5

6 7

8

9

10 11 12

13

(International Astronautical Federation, 2012), 13–14, available at www.iafastro.org/ wp-content/uploads/2014/04/IGY-ACHA-Study.pdf; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 59–60; Alexander Marshack, The World in Space (New York: Dell Publishing Co., Inc., 1958), 16; Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Leiden: Matinus Nijhoff, 2010), 27–28. Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 34–36, 400; Stephen E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space Co-Operation (International Astronautical Federation, 2012), 15, available at www.iafastro.org/wp-content/uploads/2014/04/ IGY-ACHA-Study.pdf. Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 26–30; Susan Bar and Cornelia Ludecke, The History of the International Polar Years (Berlin: Springer, 2010), 259. Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 26–60, 32; Stephen E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space Co-Operation (International Astronautical Federation, 2012), 13–15, available at www.iafastro.org/wp-content/uploads/2014/04/ IGY-ACHA-Study.pdf; Harrie Massey and M.O. Robbins, History of British Space Science (Cambridge: Cambridge University Press, 1986), 34–35; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 59–60. Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 36–44; Stephen E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space Co-Operation (International Astronautical Federation, 2012), 35–36, available at www.iafastro.org/wp-content/uploads/2014/04/ IGY-ACHA-Study.pdf. Alexander Marshack, The World in Space (New York: Dell Publishing Co., Inc., 1958), 9–13; Susan Bar and Cornelia Ludecke, The History of the International Polar Years (Berlin: Springer, 2010), 5–6, 260; Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Leiden: Matinus Nijhoff, 2010), 27–28. Susan Bar and Cornelia Ludecke, The History of the International Polar Years (Berlin: Springer, 2010), 241–246, 254–255, 260, 272, 292–294. Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 17–18; Harrie Massey and M.O. Robbins, History of British Space Science (Cambridge: Cambridge University Press, 1986), 11–12, 20, 34–35, 46–47. Alexander Marshack, The World in Space (New York: Dell Publishing Co., Inc., 1958), 176; Susan Bar and Cornelia Ludecke, The History of the International Polar Years (Berlin: Springer, 2010), 260; Stephen E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space Co-Operation (International Astronautical Federation, 2012), 13–15, available at www.iafastro.org/wp-content/ uploads/2014/04/IGY-ACHA-Study.pdf. Alexander Marshack, The World in Space (New York: Dell Publishing Co., Inc., 1958), 171–172; Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 26–30; The International Geophysical Year: Initiating International Scientific Space Co-Operation (International Astronautical Federation, 2012), 13–15, available at www.iafastro.org/wp-content/uploads/2014/04/IGY-ACHA-Study.pdf; Harrie Massey and M.O. Robbins, History of British Space Science (Cambridge: Cambridge University Press, 1986), 36; Presidential Press Secretary James C. Hagerty, Press Statement, 29 July  1955, available at https://history.state.gov/historicaldocuments/frus1955-57v11/d342; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 177.

1 Right of overpass

The first law of outer space is that the satellite of one nation may pass over the territory of another nation. Without this right, outer space activities would be impossible. But the establishment of this right was not a given. Satellites, in the era before any existed, were an unprecedented threat to national security. They could reveal the location and disposition of sensitive military assets. Satellites could even be a new vector for a surprise attack. This chapter is about how the right of overpass developed despite these concerns.

The search for open skies President Eisenhower took office in 1953 with a nagging problem: how could the United States ensure that it would never be dragged into conflict by a sneak attack ever again? For the men of Eisenhower’s era, the memory of Pearl Harbor only 12 years earlier remained fresh. As tensions with the Soviet Union rose during the Cold War, the possibility of another surprise attack seemed probable.1 Stalled disarmament negotiations between the Soviet Union and the United States added to the risk of conflict. Since the end of the Second World War, the United States and the Soviet Union had been engaged in disarmament talks. An agreement could never be reached because of one basic problem: verification. The United States insisted that a prerequisite to any disarmament agreement was the creation of an international inspection system to verify disarmament as it occurred. After the inspection system was in place, the process of disarmament could begin. The Soviet Union took the opposite view that disarmament should occur first, and then an inspection system could verify disarmament. The obstacle of verification could not be overcome because of a fundamental lack of trust between the superpowers. The Americans did not think the Soviets would actually disarm, and the Soviets viewed inspectors as Western spies. The Eisenhower Administration became especially alarmed about Soviet military capabilities in May 1955. The alarm had been caused, ironically, by a breakthrough in disarmament negotiations. Because disarmament discussions on nuclear weapons had stalled, France and the United Kingdom proposed that talks focus instead on limiting conventional forces. This approach had the benefit, if it succeeded, of building trust before revisiting the difficult problem of

12  Right of overpass nuclear weapons. A sticking point was the West’s continued insistence that an inspection system be in place to verify disarmament. On May  10, 1955, the Soviets responded to the Western proposal approvingly. For the first time, the Soviet Union appeared to accept in principle the creation of an inspection system. In doing so, however, the Soviet Union alarmed the Eisenhower Administration by commenting that limitations on conventional weapons were a more productive topic because nuclear weapons, unlike conventional weapons, could easily be stockpiled in secret beyond the detection of an inspection system. This comment caused the United States to scramble to understand whether the Soviets had secretly built a nuclear weapons stockpile while they had been in disarmament talks.2 The Eisenhower Administration was desperate for better intelligence on Soviet military capabilities. Improved intelligence had two benefits. First, the information would help prevent another surprise attack on the United States. Second, if the United States had a reliable way to gather information on the Soviet military on a regular basis, the paralysis in disarmament negotiations might end. If the United States could independently obtain information on the Soviet military, then it would not need to demand the international inspection system that the Soviet Union found so objectionable as part of a disarmament treaty. President Eisenhower tried at first to gather intelligence by agreement. In July  1955, he proposed an “Open Skies” policy under which the great powers would exchange technical information on their military installations and allow one another to conduct reconnaissance flights over their respective territories. The Soviet Union rejected the proposal as a ploy to gather targeting data on Soviet facilities. Failing to obtain information by consent, the United States turned to intrusive measures. In January 1956, the United States began Project Genetrix, a covert operation to use weather balloons to photograph Soviet facilities under the guise of scientific research. The plan involved the release of weather balloons over Europe, where prevailing winds carried them over the Soviet Union. The United States recovered the balloons in Japan and Alaska. The project was shortlived because the United States came under international pressure to cancel the program. Other nations complained that the balloons violated their airspace, and the uncontrolled paths of the weather balloons forced the cancellation of civilian flights. In June 1956, the United States began using the U-2 spy plane. Flying too high for Soviet aircraft to intercept, U-2 aircraft made repeated incursions into Soviet airspace. Although the Soviets could not stop these flights, at least not at first, they were aware of and agitated by the flights. American military planners dreamed of moving beyond airborne reconnaissance to the use of satellites. Satellites promised to be the ultimate intelligencegathering tool. Satellites could not be intercepted, they would cover a broader area than any aircraft, and their presence would offer a continuous stream of information. Satellites would virtually ensure that a surprise attack like Pearl Harbor could never happen again. Satellites would effectively implement Open Skies and could potentially resolve the impasse over verification in disarmament talks.

Right of overpass  13 Launching a satellite, however, could spark the very conflict that the United States hoped to prevent. The RAND Corporation prepared a study for the U.S. government in 1946, which recommended launching a satellite for military reconnaissance. But that same study warned that the Soviet Union’s reaction to the launch of an American satellite was unpredictable. For the Soviet Union, the repercussions of an American satellite could be seen as an act similar to the detonation of the first atomic bomb. The Eisenhower Administration wanted a way to introduce the world to satellites without sparking an arms race or a new conflict.3 President Eisenhower also wanted the international community to recognize a legal right to use satellites. A satellite must naturally pass over other nations in orbit. International law was unclear whether the satellite of one nation could legally pass over another nation without the latter’s consent. International law had established that the airspace above a nation’s land and water is sovereign territory. This had been codified in the 1944 Chicago Convention on International Civil Aviation. International law had not, however, established the upper limit of airspace or the altitude at which national sovereignty ends. Some nations, like the Soviet Union, claimed that sovereignty above their territory was unlimited and extended into outer space. To make satellites useful, especially if future satellites were to gather military intelligence, the international community had to be convinced that satellites had a legal right to pass over them. One way to secure legal recognition was through a treaty. The opportunity to pursue this approach appeared in 1955, thanks to efforts by Professor John Cobb Cooper, head of the Institute of Air and Space Law at McGill University in Montreal, Canada. Professor Cooper had participated in the drafting of the 1944 Chicago Convention, and in 1951, he wrote a seminal treatise on the definition of airspace and the limit of national sovereignty. In light of the Soviet Union’s and the United States’ announcements to launch satellites in 1955, Professor Cooper proposed that an international conference be held to define outer space, identify the limit of national sovereignty, and establish a right for satellites to pass over other nations. He suggested that the International Civil Aviation Organization, which planned to hold its next regular conference in 1956, was an appropriate forum to begin these discussions. The United States resisted Professor Cooper’s efforts to establish a right of overpass through a treaty. The Eisenhower Administration had several reasons for disfavoring the treaty approach. First, the United States’ principal goal was to convince the Soviet Union to accept a legal right of overpass. The Soviet Union had already taken the position that sovereignty extends upward indefinitely into outer space. The Soviet Union was also unlikely to agree to any treaty that allowed American satellites to observe Soviet military installations; it had rejected the Open Skies proposal to do the same with aircraft. Second, Professor Cooper’s proposal to begin discussions at the International Civil Aviation Organization was particularly unhelpful. The Soviet Union was not a member of that organization. Thus, even if a favorable agreement could be achieved, the Soviet Union would not be party to it. Moreover, the regulation of outer space was outside the jurisdiction of the organization, which is limited to “civil aviation.” Finally,

14  Right of overpass Professor Cooper’s proposal to define outer space and the upper limit of sovereignty appeared premature. Professor Cooper proposed that the boundary of outer space and sovereignty be set at an altitude of 300 miles above sea level. Beyond this limit, satellites could freely transit over other nations. But without experience in outer space activities, there was no way of knowing whether the 300-mile limit was reasonable. With hindsight, we know it was not; a 300-mile limit applied today would mean the International Space Station orbiting at around 250 miles is not in outer space. The United States chose instead to establish a legal right to overpass through customary international law. Customary international law is created by practice rather than treaty or agreements. Customary international law is not necessarily written, but it is still binding law. The creation of customary international law generally requires two elements. First, there must be widespread “state practice” to which there is no significant objection. In other words, states generally act in a particular way. Second, the actions of the states must be undertaken out of a sense of legal duty, or opinion juris, and not courtesy or convenience. The proverbial law school example is that the literal rolling out of the red carpet for a visiting head of state is not customary international law. Though the practice is common, it is done out of courtesy and not legal duty. Providing foreign heads of state with diplomatic immunity, however, is both widespread and considered a legal duty. The United States sought to create a right of overpass for satellites under customary international law by launching a satellite under conditions in which other nations – the Soviet Union in particular – would not object. Creating international law through custom was preferable in this case because it avoided other complicated legal questions. The problem of overpass raised three distinct legal issues: (1) what is the boundary between airspace and outer space, (2) where does national sovereignty end, and (3) do satellites have the right to transit over foreign territory? The first issue raised complicated technical questions about the nature of the atmosphere and when it becomes outer space. Even today, there are no technical criteria to define where outer space begins. The second question was politically controversial. The limit of national sovereignty does not necessarily have to coincide with the boundary of a technical definition for outer space. Assertions of sovereignty extend as far as necessary for national security needs. Thus, in the twentieth century, the international law of the sea generally extended territorial waters from three miles beyond coastlines to 12 miles in part due to advances in naval gunnery. The upward limit of sovereignty could theoretically extend into a portion of outer space if that was needed for national security. The only question that the United States wanted to answer was the third: do satellites have a right to transit over foreign territory. Answering this question does not require a definition of outer space or identification of the upward limit of national sovereignty. What mattered was that the international community accepts that a satellite could pass overhead regardless whether that satellite was in airspace or outer space or whether the satellite was traveling inside or outside a sovereign nation’s territory. For example, under the law of the sea, warships may pass

Right of overpass 15 through a foreign nation’s territorial waters under the right of innocent passage, if the warship’s transit is not harmful to the peace and security of the territorial state. Because the Eisenhower Administration was only interested in observation, a similar right to innocent passage for satellites was an acceptable option to the United States. This approach avoided complicated questions about where outer space began and where sovereignty ended.4 The problem that President Eisenhower faced was how to avoid a Soviet objection to the passage of an American satellite over Soviet territory. One of the requirements of customary international law is that there be no substantial objection to the state practice. An objection by the Soviet Union would undermine the United States’ efforts to create customary international law. The RAND Corporation had suggested in its 1946 study that the first satellite should be nonmilitary in nature and fly an equatorial orbit so that the Soviet Union would have no opportunity to object. Such an innocuous satellite would then begin to create the state practice necessary to establish customary international law. In May 1955, the White House National Security Council recommended an approach similar to the RAND Corporation. The plan was for the United States to launch reconnaissance satellites only after nonmilitary satellites had established a legal right to pass over other nations. The perfect opportunity to launch an innocuous satellite appeared with the International Geophysical Year. In March 1954, the American scientists proposed the launch of a scientific satellite as part of that program. The National Science Foundation began lobbying the government to support the effort. By supporting the launch of a satellite during the International Geophysical Year as a purely scientific endeavor, the Eisenhower Administration hoped to dull the Soviet Union’s reaction to the military implications of a satellite. Then in April 1955, the Soviet Union itself announced plans to launch a satellite for the International Geophysical Year. Now, this was truly the golden opportunity. If the Soviet Union had decided to launch a satellite, they could hardly accuse the United States of sparking a new arms race if the United States launched one as well. Three months later on July  29, 1955, the White House, in concert with the National Academy of Sciences and the National Science Foundation, announced that the United States would also launch a satellite during the International Geophysical Year.5 President Eisenhower insisted that the rocket that carried the first satellite must be of civilian origin. By making both the rocket and the satellite civilian and scientific in nature, every aspect of the launch would appear to be for peaceful purposes. That would reduce the likelihood of an objection to the overpass of the satellite by any nation. But in 1955, there was no such thing as a civilian rocket capable of carrying a satellite into orbit. The only rockets powerful enough to launch a satellite were of military origin. An entirely new rocket had to be made using only civilian resources. Development of a civilian research rocket was assigned to the U.S. Naval Research Laboratory. On April 13, 1955, the Naval Research Laboratory issued a report proposing the adoption of Project Vanguard, the creation of a civilian rocket. Initial funding for the project came from the National Science Foundation.

16  Right of overpass A few months later, the White House approved Project Vanguard and gave it the task of launching America’s first satellite. The use of a civilian rocket to launch the first satellite would allow the United States to be more transparent about the launch and advance the goal of making the launch seem as inoffensive as possible. Due to national security reasons, if a military rocket were used, the United States would have to classify technical details of the launch to keep the capabilities of American military rockets a secret. The technical information would include the rocket’s weight, dimensions, launch time, speed, and orbital trajectory. But the availability of such information was critical for the scientific investigation of the upper atmosphere. For example, the rocket’s weight and dimensions could be used to measure the density of the upper atmosphere by tracking orbital decay. These concerns would not exist for a civilian rocket. The greater transparency permitted by a civilian rocket would emphasize the scientific nature of the first satellite and reduce the likelihood that any nation would object to it passing overhead. Waiting for Project Vanguard to produce a viable civilian rocket, however, promised to entail significant delays. The design and construction of a rocket take time. Technical issues are inevitably encountered. The process for identifying these issues and resolving them was a time-consuming effort for an entirely new rocket. Moreover, the U.S. Navy overseeing Project Vanguard had less experience than other branches of the military, especially the Army, in developing rockets. A Vanguard rocket would not be ready for years. In the meantime, the United States was already in possession of a rocket capable of launching a satellite into orbit. That rocket was the Army’s Redstone rocket. Ex-German rocket engineer Dr. Werner von Braun and his team located in Huntsville, Alabama, developed the Redstone. The Redstone was already in service and had proven to be a reliable rocket. Around the same time that the Naval Research Laboratory proposed to launch America’s first satellite with Project Vanguard, Dr. von Braun had proposed Project Orbiter to conduct the first satellite launch with a Redstone rocket. Some in the government doubted that the Redstone could carry a satellite into orbit. For a Redstone to launch a satellite, Dr. von Braun proposed dividing the rocket into four stages. Only the first stage of the Redstone, however, had the capacity to carry a guidance system. This meant the latter three stages could veer off in the wrong direction. Dr. von Braun believed that trajectory could be maintained by spinning the entire rocket during launch like a bullet from a rifle. Critics argued that the spinning would destroy the rocket. On September  20, 1956, Dr. von Braun proved his detractors wrong when his team launched a Redstone rocket and spun the last three stages. The rocket survived. If the fourth stage of the rocket that day had been a live rocket instead of a dummy payload, the United States would probably have launched the world’s first artificial satellite. The Eisenhower Administration put a halt to Dr. von Braun’s experiments. The Department of Defense sent men to monitor all further work to ensure that Dr. von Braun and his team refrained from launching a satellite. The government

Right of overpass 17 was insistent that the first American satellite be scientific and launched only from civilian resources. Acting against orders, Dr. von Braun secretly gathered components that could only be used in preparation for a satellite launch in the hopes that the Eisenhower Administration would change its mind. President Eisenhower would change his mind about allowing a military rocket to carry America’s first satellite, but not before it was too late.6 On October  4, 1957, the world learned that the Soviet Union had launched Sputnik, the world’s first artificial satellite. The news came as a complete shock. Public perception at the time was that the United States held a significant technological lead over the Soviet Union. The United States had developed the atomic bomb before anyone else, a feat the Soviets accomplished only through espionage. The United States had obtained a lead in rocket development after capturing the vast majority of German V-2 rockets at the end of the Second World War and rocket engineers like Dr. von Braun. Moreover, because American scientists had been the ones to propose a satellite launch during the International Geophysical Year, the assumption was that the United States was the furthest along in attempting a launch. American scientists at an International Geophysical Year conference earlier that week had stated that the first test of the Vanguard rocket was still months away. The impression was that, if the Americans were still months from a satellite launch, the Soviet Union must be even further behind. The Soviet Union had given few indications to dispel that belief. While Sputnik was a propaganda disaster for the United States, it was a victory for the government’s efforts to establish a right of overpass for satellites. Assistant Secretary of Defense Donald Quarles told the president, the Soviet Union has “done us a good turn, unintentionally, by establishing the concept of the freedom of international space.”7 President Eisenhower wanted to convince the Soviet Union that American satellites had a legal right to pass over its territory. By launching a satellite of their own first which passed over the United States without asking for permission, the Soviet Union initiated the state practice necessary to establish the legal right to overpass. The Soviet Union could scarcely object now if the United States launched a satellite that passed over the Soviet Union. A valid question is whether President Eisenhower intentionally allowed the Soviet Union to launch the first satellite to establish a legal right of overpass. The United States certainly could have launched a satellite months – maybe even over a year – before the Soviet Union. Dr. von Braun’s Redstone test on September 20, 1956, seems to prove that. In addition, during a White House National Security Council meeting in November  1956, the Eisenhower Administration concluded that it was more important that the United States launch a satellite as part of an “effective and complete scientific program” than to be first in space.8 There is no evidence, however, that there was an intentional policy to allow the Soviet Union to launch the first satellite. Rather, several systemic factors naturally drove the Soviet Union toward more rapid development in rocket technology. The Soviet Union was also not concerned about using military technology to launch a satellite.9

18  Right of overpass

The origins of Sputnik The military situation at the end of the Second World War naturally drove the Soviet Union toward rapid development of an intercontinental ballistic missile or ICBM. Americans generally perceive the Soviet Union as a dire threat after the war, but the view was quite different from the Soviet perspective. The war ended with an American monopoly on the atomic bomb. The United States also had an overwhelming superiority in the quality and quantity of strategic longrange bombers and access to allied airbases from Western Europe to Japan. With its strategic bombers and these airbases, the United States could drop a nuclear bomb on every major Soviet city. The Soviet Union had no ability to respond to this existential threat in kind. Even after the Soviet Union developed the atomic bomb in 1949, it lacked a comparable strategic bomber fleet to deliver them, and it did not have any allies in the Western Hemisphere from which to station the bombers against the United States even if it did. The Soviet Union’s only hope for parity was an ICBM that could launch a nuclear bomb from the Soviet Union to the continental United States.10 The Soviet Union made research into an ICBM a national priority. The key figure behind the Soviet effort was Sergei Pavlovich Korolev. Korolev was an aerospace engineer. He was a victim of a political purge in 1938 and was briefly sent to an Arctic death camp before being rescued by friends and transferred to another prison. During the Second World War, he worked at a labor camp for engineers designing aircraft. As Nazi Germany collapsed in 1945, Korolev was one of a number of Soviet engineers sent into the country to seize German rocket technology. The Americans had seized the intact rockets and the most senior German rocket engineers. The Soviets were left only with lower level German engineers who refused to leave their homes in the Soviet zone of occupation and a random assortment of spare parts abandoned in the Nordhausen missile factory. Soviet engineers, including Korolev, painstakingly reverse-engineered German V-2 rockets based on captured spare parts and input from the German rocket engineers who remained. By 1947, the Soviet Union began test firing the R-1 rocket, essentially a copy of the V-2. Using the experience gained from reverse-engineering German rockets, Korolev developed the R-2 rocket, which had a significantly improved range over the R-1. Korolev then modified his design further to create the R-5 rocket, which had a range of 1,200 kilometers. A breakthrough came in February 1956 when the Soviet Union launched an R-5 rocket with a nuclear warhead. The range of the R-5 was inadequate for an ICBM, but it was a significant step forward. Korolev decided to build a rocket with a sufficient range for an ICBM, eventually dubbed the R-7, by strapping additional engines to the rocket. Initially, Korolev attempted to build a rocket with more powerful engines. The new engine design, however, tried to introduce too many changes at once, which created many technical problems. Working under intense pressure to finish an ICBM as quickly as possible, Korolev abandoned the new engine design and opted to cluster more, though less powerful, engines to the same rocket. As a result, Soviet

Right of overpass 19 rockets became characterized by a flared conical shape at the rocket’s base. By contrast, American rockets maintained a sleek cylindrical shape by using fewer but more powerful engines. Korolev’s decision to rely on clustering would also have long-term repercussions on Soviet rocket development, and the decision ultimately played into the Soviet Union’s failure to keep up with the United States in the latter stages of the Space Race. In the early 1950s, however, the Soviet Union’s focus was not on elegant engineering or a Space Race. The focus was on pushing out an ICBM as quickly as possible to secure the nation’s safety. On August 21, 1957, Korolev succeeded. The world’s first ICBM, the R-7, flew 6,500 km downrange.11 While the Soviet Union had treated research into an ICBM as a national security crisis, the United States was a bit more lackadaisical. The nation was focused on spending cuts after the Second World War, and a project to build an ICBM was canceled. To military planners at the time, the benefits of an ICBM appeared minimal. American strategic bombers were designed to drop a payload within 1,500 feet of its target. There was no guidance system that could ensure an ICBM flying thousands of miles could hit a target with the same standard of accuracy. Even with a nuclear bomb, there was a risk that the weapon could miss. The United States’ calculus began to change only in the early 1950s. In 1951, the United States entered the Korean War. The war effort eliminated concerns about bloated military spending. Then, in 1953, the United States detonated the first hydrogen bomb. The Soviet Union followed suit later that year. Hydrogen bombs are so powerful that they can destroy a target even if a missile significantly missed the intended target. But, even with the United States changing its outlook, the country was not planning to build a rocket as powerful as Soviet rockets. The United States did not need them. American superiority in miniaturization of electronics meant that its missiles and payloads were on the whole lighter and did not need to be as powerful.12 In addition to the strategic situation, which encouraged the Soviet Union to develop an ICBM faster than the United States, the Soviet Union was also able to launch a satellite first because it had no qualms about using a military rocket for launch. The Soviet Union developed the R-7 as a purely military weapon. The design specifications had been based solely on the goal of launching a six-ton hydrogen bomb 8,500 km. The only reason the Soviet Union launched a satellite with the R-7 was due to the efforts of its star rocket engineer, Korolev. Korolev was interested in using rockets for scientific investigation since he began working on rockets after the end of the Second World War. In 1948, he began examining the possibility of launching a satellite. He also explored the possibility of human spaceflight. For example, on July 22, 1951, he launched two dogs, Dezik and Tsygen, up to 101 km on a suborbital flight atop an R-1 rocket. This was the first time in history that living organisms reached outer space and were successfully recovered, beating the United States, which accomplished a similar feat with mice two months later. After Joseph Stalin’s death on March 3, 1953, Korolev attempted to secure official government support for his research into space exploration. Premier Stalin, ever the secretive leader, had kept details

20  Right of overpass about the Soviet rocket program to himself, leaving others, including his eventual successor Nikita Khrushchev, in the dark. Korolev tried to take advantage of the state of flux created by Premier Stalin’s death to advance his agenda for space exploration. He edited the decree approving of the R-7’s development to state that “questions associated with the creation of an artificial satellite of the earth and the study of interplanetary space” would also be researched alongside the R-7. The government, however, rejected Korolev’s proposal to launch a satellite. The International Geophysical Year gave Korolev the political capital he needed to secure support for a satellite. In March 1954, only a few months after the Soviet government rejected Korolev’s satellite proposal, American scientists proposed to launch satellites during the International Geophysical Year. The prospect of Americans launching a satellite changed the Soviet government’s attitude. The Soviet Academy of Sciences began to express an interest in joining the International Geophysical Year, which it did in September 1954. Six months later, the Soviet Union announced that it would launch a satellite under the auspices of the International Geophysical Year. Although the Soviet military remained adamant that Korolev focus on developing the R-7 missile, which was still incomplete, Korolev got the approval he wanted to launch a satellite with the R-7 when his work was finished. Korolev also obtained support for a satellite launch from Premier Khrushchev himself. On February  2, 1956, Korolev’s team succeeded in launching the first nuclear-tipped missile in history using an R-5 rocket. Premier Khrushchev decided to congratulate Korolev and his team personally. During a tour of his facility on February  27, Korolev made sure that Premier Khrushchev saw a full-scale model of the R-7 rocket. The size of the gargantuan missile awed the premier. Korolev then told Premier Khrushchev that the R-7 rocket could launch a far heavier satellite than the puny 3- to 5-pound satellite that the United States had announced for the International Geophysical Year. Premier Khrushchev seized on the opportunity for a propaganda coup by launching a satellite to demonstrate the Soviet Union’s technological prowess and the superiority of socialism to capitalism. Premier Khrushchev asked if a satellite launch would inhibit the development of the R-7 as a weapon. Korolev downplayed the difficulty of converting the R-7 into a launch vehicle for satellite. Premier Khrushchev then responded, “If the main task doesn’t suffer, do it.” That was all the support Korolev needed. Once he had official support, Korolev’s main concern was launching a Soviet satellite before the United States. Korolev’s proposal had currency only because it offered a chance to showcase the superiority of socialism. If the United States launched a satellite first, the value of a Soviet satellite launch would lose currency. Korolev had reason to fear. Dr. von Braun’s launch of a Redstone on September 20, 1956, proved that the United States could launch a satellite. In fact, Korolev interpreted the test as a failed satellite launch attempt. He had no idea that the Eisenhower Administration was restraining Dr. von Braun from launching a satellite. To speed up a Soviet satellite launch, Korolev simplified the satellite design. Whereas the original design had a wide array of instrumentation,

Right of overpass  21 Korolev reduced the satellite to a sphere with four whiskers and no instrumentation other than a radio. After successfully testing an R-7 rocket on August 21, 1957, Korolev began making plans to launch the satellite. The Soviet government initially picked October 6, 1957, as the launch date, but Korolev remained concerned that the United States was about to launch. He noted that the International Geophysical Year was holding a conference that week on the satellite program, and the United States might take that as an opportunity to launch its satellite. Although Soviet intelligence advised that that was not the case, the Soviet government agreed to move the launch date forward. On October  4, 1957, an R-7 rocket lifted off at Tyuratam in modern-day Kazakhstan near the Baikonur Cosmodrome. Five and a half minutes into launch, the 184-pound Sputnik separated from the rocket and entered orbit. A radio station on the Kamchatka Peninsula picked up Sputnik’s signal. About an hour later, the engineers at Tyuratam heard the distinct “beep-beep . . . beep-beep” from Sputnik themselves as the satellite completed its first orbit.13 The Soviet Union had no compunctions about using a military rocket to launch Sputnik. At no point did it pause to consider that launching a satellite with a military rocket could spark in arms race in space the way the Eisenhower Administration had. Even if it had, the Soviet Union would not have diverted resources into a “civilian” rocket the way President Eisenhower had. The Soviet government had repeatedly rejected Korolev’s proposals for space exploration. The Soviet Union treated the development of an ICBM as a national crisis and did not wish to divert resources from that goal. Korolev secured support for a satellite only because he convinced Premier Khrushchev that a satellite would not require any more resources than were already being committed by the military to the development of the R-7. Thus, using a military rocket was the only way that the Soviets were going to launch a satellite. The Soviet Union also does not appear to have considered the legal implications of Sputnik’s launch. The Soviet Union claimed sovereignty over the space above its territory, even into outer space. This was due in part to its knowledge that American U-2 spy planes were flying above its territory. The Soviet Union also rejected “Open Skies” to prevent the West from obtaining more information on the disposition of its military. Yet the Soviet government approved the launch of a satellite that would pass over other nations without first asking for their permission. The Soviet government does not appear to have appreciated that Sputnik could help establish the “Open Skies” policy that it rejected. The United States, on the other hand, remained concerned about sparking an arms race in space and the need to establish a right for satellites to pass over other nations without objection. Even after Sputnik, President Eisenhower remained committed to using a civilian rocket, the Vanguard, to launch a purely scientific satellite as part of the International Geophysical Year so that there would be nothing militaristic or objectionable about the launch. In addition, while his nation was in hysteria over Sputnik, President Eisenhower was calm. He knew that Sputnik did not represent any change in the military balance of power. Satellites were not inherently

22  Right of overpass an offensive weapon. Moreover, the Vanguard was expected to be ready in a few months, an American satellite would be launched, and all would be well again. Then Sputnik 2 happened. On November 3, 1957, a month after Sputnik, the Soviet Union launched a second satellite. Sputnik 2 was impressive. The satellite was a whopping 1,100 pounds, far heavier than the first Sputnik at 184 pounds and dwarfing the American plans for a 5-pound satellite. Sputnik 2 was filled with scientific instrumentation and even a dog named Laika to study weightlessness. Laika died on November 7, 1957, from heat exhaustion due to a malfunction in the thermal control system, though there was never a plan to retrieve her. Instrumentation aboard Sputnik 2 detected what appeared to be a radiation belt around the earth. Soviet scientists did not announce their interpretation of the data, which allowed American scientists to later claim its discovery and the right to name it the “Van Allen” radiation belts. After Sputnik 2, President Eisenhower could not withstand the American public’s demand for a response. The United States needed a satellite of its own. Although he still favored the use of the Vanguard rocket, five days after Sputnik 2, he approved the preparation of a satellite launch using a variant of the Redstone rocket. Because the preparation of a Redstone would take several months, Vanguard was given the opportunity to try a satellite launch first. That opportunity came on December 6, 1957. The Vanguard rocket rose four feet off the launch pad at Cape Canaveral before tipping and crashing in a fiery blaze. To add insult to injured American pride, the satellite survived the crash and began transmitting from ground zero. On January 31, 1958, the United States was ready to try again with a variant of the Redstone rocket. Normally, the variant is known as a Jupiter-C rocket, but to disassociate the rocket from its military origins, it was called Juno I for this launch. After a few weather delays, the Juno I rocket successfully carried America’s first satellite, Explorer 1, into orbit.14

Evolution of the right of overpass Though America’s confidence had been shaken by the Sputniks, the United States did succeed in establishing a legal right for satellites to pass over other nations. The Eisenhower Administration did not object to the Sputniks passing over the United States. After the United States launched Explorer 1, no one objected the overpass of the American satellite. By the end of 1958, the delegates from Austria, Iran, Italy, the Netherlands, Sweden, and other states speaking at the U.N. General Assembly commented that a right to innocent overpass appeared to have been established under customary international law. These delegates noted that neither the Soviet Union nor the United States asked for permission to pass over the territory of other nations. And no nation had objected to the overpass. It therefore seemed that state practice reflected a legal right for the passage of satellites over foreign territory. There was one important caveat to the right of overpass: the overpass had to be innocent in nature. A general principle of international law is that sovereignty

Right of overpass  23 is sacrosanct, and any waiver of sovereignty must be read narrowly. Because the American and Soviet satellites had been launched as part of the International Geophysical Year, it was possible that a right of overpass existed only for satellites launched as part of an international program. A White House National Security Council report from June 20, 1958, acknowledged this narrow interpretation.15 Although the legal right of overpass might be limited, the Eisenhower Administration moved forward with its true aim to launch military reconnaissance satellites. In February  1958, a month after Explorer 1 was in orbit, President Eisenhower approved Project Corona. This was a CIA program using satellites with photographic equipment to take images of the Soviet Union as they passed overhead. A  capsule containing film was then released from the satellite and retrieved in midair using aircraft with large dragnets. Although the Soviet Union had not initially given much thought to a legal right of overpass, by the 1960s, the Soviet Union understood what the United States had done. At the United Nations, the Soviet Union began objecting to the use of reconnaissance satellites in orbit. The Soviet Union argued, just as the White House National Security Council had predicted, that the right of overpass was limited to peaceful and scientific satellites. Military reconnaissance satellites were outside the ambit of the right of overpass under customary international law.16 By the time the Soviet Union objected, however, there had been another development in international law that strengthened a legal right to overpass. On December 20, 1961, the U.N. General Assembly unanimously adopted U.N. Resolution 1721 (XVI). The resolution declared that outer space is “not subject to national appropriation,” effectively making space an international domain like the high seas. And like the high seas, all states have a right to freely transit through outer space for any purpose, including for reconnaissance. For example, an analogy was drawn between reconnaissance activities from international waters, which all nations recognized as acceptable, to reconnaissance done from outer space.17 The contours of a right to overpass are still not fully defined today, more than 60 years after Sputnik. One major area of ambiguity is where outer space begins. States may be free to operate satellites in space, but passage through sovereign airspace is still presumably unlawful without consent. Despite decades of discussion at the United Nations, no lasting technical criteria to define outer space have been found. Many states and academics, however, have expressed the view that 100 km above sea level is generally outer space. This altitude is approximately the lowest possible altitude of a satellite flying an elliptical orbit. Another ambiguity is whether a state’s rocket, satellite, or spacecraft may pass through another nation’s airspace on its way to outer space or reentry. The general consensus appears to be that passage is permitted; otherwise, smaller nations might never be able to go to outer space.18 The right of overpass was only the first legal problem created by humanity’s first steps into outer space. This legal question was resolved informally through state practice. Many more legal problems appeared with advancements in space. This included issues such as the prohibition of detrimental activities in outer space, rules to manage satellite traffic, and procedures for claiming damages in

24  Right of overpass the event of an accident. All future legal questions were addressed more formally through discussions at the United Nations.

Notes 1 Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 44–45; Delbert R. Terrill, Jr., The Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 9–10. 2 Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 5–7; United Nations, The United Nations and Disarmament 1945–7 (New York: United Nations, 1970), 55–62, available at www.un.org/ disarmament/publications/yearbook/volume-1945-1970/. 3 Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), viii, 44–47, 57–58, 96–67; Delbert R. Terrill, Jr., The Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 9–11, 13; Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 6–7; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 127–129, 154–156, 159–160; Technological Capabilities Panel of the Science Advisory Committee, Meeting the Threat of Surprise Attack, 14 February  1955, available at https://history.state.gov/ historicaldocuments/frus1955-57v19/d9; National Security Council, NSC5520: Note by the Executive Secretary to the National Security Council on U.S. Scientific Satellite Program, 20 May  1955, available at https://history.state.gov/historicaldocuments/ frus1955-57v11/d340. 4 National Security Council, NSC5520: Note by the Executive Secretary to the National Security Council on U.S. Scientific Satellite Program, 20 May  1955, available at https://history.state.gov/historicaldocuments/frus1955-57v11/d340; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 47, 58, 96–97; Delbert R. Terrill, Jr., The Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 1–2, 5–6, 8–10, 13, 24–32; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 166–167; John C. Cooper, “High Altitude Flight and National Sovereignty,” The International Law Quarterly, Vol. 4, No. 3 (July 1951): 411–418. 5 National Security Council, NSC5520: Note by the Executive Secretary to the National Security Council on U.S. Scientific Satellite Program, 20 May  1955, available at https://history.state.gov/historicaldocuments/frus1955-57v11/d340; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 47, 58, 63, 96–97; Presidential Press Secretary James C. Hagerty, Press Statement, 29 July 1955, available at https:// history.state.gov/historicaldocuments/frus1955-57v11/d342; Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 80; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 166–168; Delbert R. Terrill, Jr., The Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 9–10. 6 Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 66–69, 72–73, 81–84, 403–408; Stephen E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space Co-Operation (International Astronautical Federation, 2012), 55–56, available at www.iafastro. org/wp-content/uploads/2014/04/IGY-ACHA-Study.pdf; Delbert R. Terrill, Jr., The

Right of overpass  25

7

8 9

10

11

12

13

14

Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 13; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 61–64; Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–1974 (Washington, DC: NASA, 2000), 153; Harrie Massey and M.O. Robbins, History of British Space Science (Cambridge: Cambridge University Press, 1986), 39–40; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 172, 188; National Security Council, NSC5520: Note by the Executive Secretary to the National Security Council on U.S. Scientific Satellite Program, 20 May 1955, available at https://history.state. gov/historicaldocuments/frus1955-57v11/d340; S. Everett Gleason, Memorandum of Discussion at the 283d Meeting of the National Security Council, Washington, May 3, 1956, 3 May 1956, available at https://history.state.gov/historicaldocuments/ frus1955-57v11/d343. Delbert R. Terrill, Jr., The Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 38–39 n. 36; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 187. William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 173. Delbert R. Terrill, Jr., The Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 16, 21 n. 54, 38 n. 3; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), viii, 48, 75–77; Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 1–3, 84–98; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 138, 173, 187–188. Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), viii, 38, 48–49, 210–211; Martin Walker, The Cold War: A History (New York: Henry Holt and Company, 1993), 133–134, 168–169; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 151–523. Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945– 1974 (Washington, DC: NASA, 2000), 3–24, 34–35, 41, 73, 86–87, 97–99, 105–108, 128, 158–161; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), xiii; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 114, 165; Harrie Massey and M.O. Robbins, History of British Space Science (Cambridge: Cambridge University Press, 1986), 11–12. Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 48–49; Delbert R. Terrill, Jr., The Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 14–15. Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945– 1974 (Washington, DC: NASA, 2000), 110, 117, 119, 122–123, 128–129, 138–150, 153–155, 158–168; Walter Sullivan, Assault on the Unknown (New York: McGrawHill Book Company, Inc., 1961), 26–30; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 90–93; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 181. Delbert R. Terrill, Jr., The Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 14–15; Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 84–98; Asif

26  Right of overpass

15

16

17

18

A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–1974 (Washington, DC: NASA, 2000), 171–174; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 77, 79, 85–87; Harrie Massey and M.O. Robbins, History of British Space Science (Cambridge: Cambridge University Press, 1986), 42–43; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 173–174, 197–198, 202–208. Delbert R. Terrill, Jr., The Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 29–30, 46–47, 77; U.N. COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4141 (14 July 1959), 23; U.N. Ad Hoc COPUOS, Report Under Paragraph 1(d) of the General Assembly Resolution 1348(XIII) (Working Paper Submitted by the Delegation of the United States), U.N. Doc. A/AC.98/L.7 (27 May  1959), 3; U.N. Ad Hoc COPUOS, Draft Report of the Working Group, U.N. Doc. A/AC.98/C.2/WP.5 (4 June  1969), 4; U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.981–995 (11–24 November  1958), 195–156 (Italy), 203 (Sweden), 211 (the Netherlands), 224 (Austria); U.N. First Committee, 14th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1079 (11 December 1959), 11 (USA), 37 (Sweden); U.N. First Committee, 16th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1211 (5 December 1961), 42 (Peru), PV.1213 (7 December 1961), 15–16 (Iran); William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 213; Executive Secretary James S. Lay, Nation Security Council: U.S. Policy on Outer Space, NSC 5814, 20 June 1958, 13, 21; U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.981–995 (19 November 1958), 228 (Philippines); Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Leiden: Matinus Nijhoff, 2010), 56–58. Delbert R. Terrill, Jr., The Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 13, 29–30; Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 59–60, 88–89; U.N. COPUOS, Verbatim Records, U.N. Docs. A/ AC.105/PV.10–16 (10–14 September 1962), 38–39, 42–43, 45 (USSR), 32 (Czechoslovakia), 5–8 (Bulgaria); U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1290 (4 December 1962), 4–5 (Poland). U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.982–983, 990–991 (12–13, 19 November  1958), Statements by Austria, Chile, Greece, Italy, Peru, and USSR; U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1293 (6 December 1962), 51 (France). Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Leiden: Matinus Nijhoff, 2010), 53–58.

2 Making space for peace

The beginning of outer space activities necessitated a forum to discuss the ground rules. The United Nations, an organization already set up for international dialogue, was a natural forum. But disputes quickly emerged, primarily between the Soviet Union and the United States, as to what issues should be discussed first. The main disagreement was whether international cooperation in the scientific exploration of outer space should be contingent upon first finding a solution to disarmament, or whether international cooperation in outer space should proceed in parallel with disarmament negotiations.

Disarmament The launch of Sputnik – or really the missile that carried it – signaled for the first time that the Soviet Union had the capability to threaten the continental United States with a nuclear attack in the same way that the United States had been threatening the Soviet Union with strategic bombers. Now, from a position of increasing parity, the Soviet Union sought to resume disarmament talks with the United States. On March 15, 1958, six months after Sputnik, the Soviet Union submitted a letter to the United Nations asking to discuss as an agenda item, “The banning of the use of cosmic space for military purposes, the elimination of foreign military bases on the territory of other countries and international cooperation in the study of cosmic space.” In November 1958, the Soviet Union submitted a draft resolution in advance of the discussion to “ban on the use of cosmic space for military purposes.”1 The United Nations had discussed a similar proposal to ban the military use of outer space the previous year. On August 29, 1957, the Disarmament Commission recommended that the United Nations create an inspection system “to assure that the launching of objects through outer space would be exclusively for peaceful and scientific purposes.”2 The Disarmament Commission, which operated under the auspices of the United Nations, was a forum to discuss the reduction of arms between the West and the Soviet Union. This particular proposal of the Disarmament Commission had come from the Western delegations – Canada, France, the United Kingdom, and the United States. The Soviet Union objected to the proposal because it was seeking to rely upon ICBMs, which travel through space,

28  Making space for peace as part of its nuclear defense policy. To the Soviet Union, the Western-backed proposal was simply an attempt to handicap its effort to secure military parity with the West. To the chagrin of the Soviet Union, the United Nations endorsed the Western proposal. On November 14, 1957, the United Nations adopted Resolution 1148 (XII), which agreed to study the creation of an inspection system “designed to ensure that the sending of objects through outer space shall be exclusively for peaceful and scientific purposes.” The adoption of the resolution led to the Soviet Union’s withdrawal from the Disarmament Commission. The Soviet Union complained that the Commission was horribly biased against it and stacked with nations from the Western alliance system. The Soviet Union proposed to redress the problem by making all members of the U.N. General Assembly members of the Disarmament Commission as well. The Soviet proposal was unworkable as it would have meant that virtually every nation in the world were members of the Commission. Instead, the United Nations proposed to add more states, including nonaligned nations, to the Commission. The Soviet Union rejected the compromise and withdrew from the Commission at the end of 1957.3 When the Soviet Union asked for an agenda item “banning of the use of cosmic space for military purposes” in 1958, it was seeking to resume the conversation it had walked away from when it withdrew from the Disarmament Commission in 1957. The United Nations had rejected the Soviet proposal to include every member of the U.N. General Assembly in the Disarmament Commission, so the Soviet Union simply introduced its proposal to the General Assembly itself. In the draft resolution submitted to the United Nations in November 1958, the Soviet Union offered to ban the military use of outer space in return for the “elimination of foreign military bases on territories of other States, primarily in Europe, the Near and Middle East, and North Africa.” By “foreign military bases,” the Soviet Union meant American bases in allied nations where it had stationed strategic bomber fleets.4 A ban on the military use of outer space in return for the removal of American air bases was a fair trade to the Soviet Union. The Soviet Union was giving up the use of ICBMs to deliver nuclear weapons, which Sputnik showed it was capable of doing, in return for the United States giving up the strategic bomber fleets that threatened the Soviet Union with nuclear attack. As Ukraine stated at the U.N. General Assembly, the Soviet Union “could not be expected to renounce the intercontinental ballistic missiles with which it could, in case of necessity, threaten the territory of the United States, unless at the same time the network of military bases threatening its own territory were eliminated.”5 The United States rejected the Soviet proposal. By 1955, the United States was more worried about a conventional attack by Soviet forces than a nuclear one. The Soviet Union’s conventional forces far outnumbered those of the West. The United States concluded that without a nuclear deterrent, it could not guarantee the safety of Western Europe. The United States also had to consider the Western alliance system; it could not simply withdraw forces in allied nations stationed there under mutual defense agreements without diplomatic repercussions. The United States

Making space for peace  29 also suspected – and with reconnaissance satellites later confirmed – that Soviet Union’s ICBM did not offer an overwhelming military advantage. Not only did the Soviet Union have only a few R-7 missiles, those missiles relied on cryogenic propellants. As a result, the R-7 could not be pre-fueled in a constant state of readiness, and fueling the R-7 required large, fixed stationary platforms for refrigeration units. This meant the R-7 missile sites could be attacked to prevent a launch.6 The international community was anxious that the Soviet Union and the United States reach some agreement to demilitarize outer space. Delegates at the U.N. General Assembly were especially insistent that they do not repeat the “lost opportunity” to regulate atomic power. The “lost opportunity” referred to a brief moment in history when nuclear power could have been reserved solely for peaceful purposes. The very first act of the United Nations on January 24, 1946, was to create the Atomic Energy Commission to develop plans to reserve atomic energy for peaceful purposes. On June 14, 1946, the United States introduced the Baruch Plan to the Commission. The Baruch Plan offered to transfer all fissionable material to a new International Atomic Development Authority. The Authority would have the sole right to produce fissionable material. National agencies could conduct nuclear research only with a license from the Authority. A rigid control system backed by the U.N. Security Council would ensure compliance. Once the control system was in place, the production of nuclear bombs would be outlawed, existing nuclear weapons would be destroyed, and information on nuclear technology would be transferred to the Authority. The Baruch Plan was never adopted because of the Soviet opposition. That may seem surprising because, at the time, the United States was the world’s only nuclear power. The United States was offering to surrender that advantage in favor of international regulation. Several factors, however, caused the Soviet Union to spurn the Baruch Plan. First, the plan required inspections of industrial and military facilities, which were antithetical to the Soviet culture of secrecy. Second, in the event of a conflict or the plan’s failure, the United States retained institutional knowledge to create nuclear bombs. By contrast, the Soviet Union, which was close to developing its own nuclear bomb, would have to give up its research. Finally, the fact that the United States would receive a propaganda boon if the plan succeeded did not recommend it to the Soviet Union. The Soviet Union instead proposed that the international community adopt an immediate ban on nuclear weapons. This would require the United States to destroy its existing stockpiles of nuclear bombs. After existing stockpiles were destroyed, the international control system that the United States proposed could be implemented. To the United States, the Soviet Union demanded that the United States surrender its monopoly on nuclear weapons in exchange for nothing more than a promise that an inspection system might be created later. That was not acceptable. For many years, disarmament negotiations remained deadlocked over this issue: whether a verification system should be implemented before disarmament or vice versa. In 1949, the prospect of success dimmed when the Soviet Union detonated its first atomic bomb. The Atomic Energy Commission then collapsed

30  Making space for peace when the Soviet Union demanded that the communist People’s Republic of China, which had just won control of mainland China, be seated at the Atomic Energy Commission in lieu of the representative of the nationalist Republic of China now isolated on the island of Taiwan. In 1952, the U.N. General Assembly replaced the Atomic Energy Commission with the Disarmament Commission. The Baruch Plan died permanently in 1955. That year, the Eisenhower Administration reviewed its policy on disarmament after the Soviet Union appeared to agree to negotiate on the limitation of conventional forces. The Eisenhower Administration concluded that it could no longer agree to complete denuclearization because the superiority of Soviet conventional forces meant the United States could not guarantee the safety of Western Europe without nuclear weapons. Because the United States could no longer agree to complete denuclearization, the Baruch Plan was off the table.7 The death of the Baruch Plan haunted the United Nations. Delegates at the United Nations lamented the “lost opportunity” to place atomic power under international control. President Eisenhower expressed a similar sentiment at a speech to the United Nations on September 22, 1960, when he said, “we had a chance in 1946 to ensure that atomic energy would be devoted exclusively to peaceful purposes. . . . We must not lose the chance we still have to control the future of outer space.” Now, as the United Nations discussed a ban on the military use of outer space, the international community urged the superpowers to move quickly, lest vested interests in space develop and the opportunity to reserve space for peaceful purposes pass as they had in the case of atomic energy.8 Meanwhile, recent negotiations for a treaty governing Antarctica proved that the superpowers and the international community could reach agreements to fully demilitarize and reserve an entire region for peaceful purposes. Before 1960, Antarctica was a disputed land. Seven nations laid claim to portions of continent, including Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom. In 1948, the United States offered to host a conference to settle the claims by creating a form of collective sovereignty over the continent. The proposal drew little interest until the International Geophysical Year. With a dozen nations sending expeditions to Antarctica as part of that global scientific investigation, those nations with existing territorial claims feared that their claims could be challenged or that new claimants would emerge to further complicate the situation. Australia, for example, was alarmed by the Soviet Union’s plan to establish research stations along the Knox Coast. Australia feared that this was a prelude to militarizing the coast facing Australia’s southern shore. In 1957, Australia, New Zealand, and the United Kingdom accepted the United States’ proposal for an international settlement to Antarctic claims. As a result, the United States renewed its proposal for an international conference in May 1958 and invited all nations that had a territorial claim to Antarctica or that had sent an expedition there under the International Geophysical Year. These were Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Soviet Union, and the United Kingdom.

Making space for peace  31 The negotiations eventually resulted in the Antarctic Treaty on December 1, 1959. The treaty establishes three critical principles that remain in place to this day. First, “Antarctica shall be used for peaceful purposes only.” Other articles in the treaty expand on this by banning military bases, military maneuvers, and nuclear weapon tests. Second, the treaty freezes existing territorial claims, prohibits new claims, and establishes the Antarctic Treaty System, a form of joint international governance of the continent. Although the treaty does not require that prior territorial claims be relinquished, in practice, those claims are ignored. Finally, the treaty guarantees the freedom of scientific investigation and provides for continued international scientific cooperation on the same basis as the International Geophysical Year. Delegates at the United Nations hoped that an agreement similar to the Antarctic Treaty could be reached for outer space. Both regions had been opened by massive scientific cooperation during the International Geophysical Year. Both regions faced the same problems: the need to reserve it for peaceful purposes, to prohibit territorial claims, to provide for international governance, and to continue international scientific cooperation. There was no reason, some thought, why the Antarctic Treaty could not be replicated for outer space.9 But before turning to the regulation of outer space, the United States raised a procedural question: in what forum should questions on outer space be discussed? The United States proposed that discussions be divided into two forums. Questions concerning disarmament should occur in the existing Disarmament Commission. This included the Soviet Union’s proposal to ban the military uses of outer space in exchange for the elimination of “foreign” military bases. All other issues concerning the peaceful uses of outer space, such as scientific exploration, should be referred to a new U.N. committee devoted to outer space issues. In short, the United States asked that the United Nations declare “itself on the separability of the question of the peaceful uses of outer space from that of disarmament.” The United States argued the separation of disarmament and the peaceful uses of outer space was appropriate because not all nations were interested in disarmament. Disarmament was a topic that mainly concerned the great powers, such as France, the Soviet Union, the United Kingdom, and the United States. Moreover, the West had already proposed a ban on the military use of outer space in the Disarmament Commission, so the Soviet counterproposal should be considered there. By contrast, all nations had an interest in the scientific investigation of space, as demonstrated by the International Geophysical Year. The possible advances that could be made in communications, meteorology, and transportation would benefit all peoples.10

Peaceful uses of outer space On November 12, 1958, the United Nations discussed how it should regulate outer space activities. The U.N. General Assembly received two proposals. The Soviet Union proposed an immediate ban on the military uses of outer space, the elimination of “foreign” military bases, a study to create an international inspection

32  Making space for peace system, and a new U.N. agency to continue the scientific investigation in outer space begun by the International Geophysical Year. The United States proposed a new ad hoc Committee on the Peaceful Uses of Outer Space, commonly referred to by the acronym COPUOS. The committee would prepare a preliminary report on how outer space might be regulated, including the “nature of legal problems which may arise in the carrying out of programs to explore outer space.” The committee would not address the military uses of outer space or questions about disarmament. The United Nations assigned the debate to the First Committee. The U.N. General Assembly divides its responsibilities into six committees. Although they have changed over time, in general, the First Committee addresses the most contentious issues such as disarmament and international security. The Second Committee addresses economic and financial matters; the Third Committee considers social, humanitarian, cultural, and social issues; the Fourth Committee focuses on special political matters and decolonization; the Fifth Committee oversees administration and budget; and the Sixth Committee oversees the development of international law. Each committee is a committee of the whole, meaning that all members of the United Nations can attend. Each committee prepares reports and resolutions in its particular subject-matter area for the General Assembly to adopt. The United Nations’ decision to assign debate to the First Committee reflected the importance of the topic and the direct relation between outer space and disarmament at the time, even though the United States sought to treat disarmament and the scientific exploration of outer space as distinct topics.11 The First Committee’s debate began with overwhelming support for the United States’ proposal over the Soviet one. This was due in part to the United States’ domination of the United Nations in the 1950s. Founded in 1945, the United Nations was still a young organization and was holding only its 13th annual session in 1958. The organization had moved into its now familiar building with mirror-glass windows along New York City’s East River only six years ago. The world was still recovering from the Second World War. Austria, Hungary, Italy, Spain, Japan, and other states had only become members within the last few years. Only 82 countries were members of the United Nations in 1958. These were predominately the victors of the Second World War, including the British dominions, European states, Latin American states, the Soviet bloc states, the United States, China, and a few Middle Eastern nations. The vast majority of these states – particularly those from the British dominions, Latin America, and Western Europe – were American Allies. Categorizing Latin American states as American allies may today seem counterintuitive. In 1958, however, the upheavals from socialism’s appearance in the Western Hemisphere had not yet harmed the United States’ relations with its southern neighbors. The United States had not, at this point in history, interfered with national elections to topple socialist-leaning governments. Cuba, for example, was a close American ally. By contrast, the Soviet Union had few friends. The only states that the Soviet Union could reliably count upon were the eight other Soviet bloc states:

Making space for peace  33 Albania, Bulgaria, Byelorussia, Czechoslovakia, Hungary, Poland, Romania, and Ukraine.12 Indeed, the Soviet Union walked out of the United Nations multiple times to protest the American dominion. The first time occurred in 1946 after a dispute over the withdrawal of Soviet troops from Iran. The second time occurred in 1950 when the United Nations voted to allow the nationalist Republic of China to retain China’s seat at the United Nations, rather than the communist People’s Republic of China, which had won the civil war on the mainland. At the U.N. Security Council, the Soviet Union also found itself isolated and exercised its veto power 64 times between 1945 and 1958. It was the only nation to veto at all other than France and the United Kingdom, which did so twice during the 1956 Suez Canal Crisis. By marshalling its friends and allies at the United Nations, the United States repeatedly outmaneuvered the Soviet Union on important international issues. The most glaring example was the United Nations’ refusal to recognize the communist People’s Republic of China. Though the communists controlled the mainland and governed 500 million people, the United States rallied – and later cajoled – its allies to recognize only the nationalist government on Taiwan. This situation changed only in 1971 after the United States lost its dominance in the General Assembly. Another example was the election of Secretary-General Trygve Lie to a second term in 1950. Normally, the election of the secretary-general requires the consent of the U.N. Security Council. This effectively meant that the consent of the Soviet Union, as a veto-wielding member of the Council, was necessary for the appointment of a secretary-general. The United States, however, bypassed the Soviet Union for Lie’s second term by arguing it was not a “new” appointment. As a result, only a General Assembly vote and not a Security Council vote was necessary. The United States used similar parliamentary gamesmanship during the Korean War. The Security Council authorized the international intervention during a Soviet boycott of the United Nations. When the Soviet Union returned, the United States avoided Soviet opposition by rerouting continuing resolutions on the Korean War from the Security Council to the General Assembly, where American allies supported the war. These incidents provide critical context to understand the Soviet Union’s hostility to the United Nations in this era.13 When the First Committee began its debate on outer space in November 1958, the United States’ dominance at the United Nations was evident. Nineteen nations cosponsored its draft resolution to create an ad hoc Committee on the Peaceful Uses of Outer Space. These states were Australia, Belgium, Bolivia, Canada, Denmark, France, Guatemala, Ireland, Italy, Japan, Nepal, the Netherlands, New Zealand, Sweden, Turkey, South Africa, the United Kingdom, Uruguay, and Venezuela. The American proposal became known as the 20-power draft resolution. With only 82 states in the United Nations, the 20-power draft resolution represented nearly a quarter of the U.N. General Assembly before the debate even began. The Soviet proposal had no cosponsors.14 As discussion on the two proposals proceeded, the First Committee clearly favored the American proposal. Delegates agreed that the Disarmament Commission should discuss disarmament issues, and a new committee should discuss the

34  Making space for peace peaceful uses of outer space. Many delegations instinctively agreed that disarmament and the scientific investigation of outer space were distinct activities. The Soviet proposal had done itself few favors on this count by awkwardly connecting the “banning of the use of cosmic space for military purposes” with “the elimination of foreign military bases on the territory of other countries.”15 Some nations also took offense with the Soviet proposal. Spain, for example, rejected the Soviet Union’s implication that it had compromised its national dignity or sovereignty by entering into a mutual defense agreement with the United States. There was also a fear that the scientific cooperation in space would end if connected to disarmament. As France stated, combining the topics of scientific cooperation in outer space with disarmament “would have the practical result of obstructing the development of international cooperation for the study of the peaceful use of outer space.”16 Disarmament negotiations had been deadlocked since the end of the Second World War. While disarmament was a politically sensitive topic, scientific cooperation was a relatively uncontroversial matter of technical, cultural, and scientific exchange. The International Geophysical Year had shown that it was possible for the Cold War rivals to cooperate outside the context of disarmament. Discussing disarmament alongside scientific cooperation threatened to complicate the latter without helping the former. Even delegations sympathetic to the Soviet Union on disarmament, such as Indonesia, Venezuela, and Yugoslavia, were unwilling to risk international scientific investigation by tying it to disarmament. The First Committee also favored the American proposal because it offered a framework for the governance of outer space activities in general. Under the 20-power draft resolution, the ad hoc COPUOS would organize international cooperation in space and develop the law. The committee’s membership was to reflect the geographic distribution of the U.N. member states. As a result, nonspacefaring nations supported the 20-power draft resolution because it gave them an opportunity to participate in making the rules for space activities. The Soviet proposal, by contrast, focused narrowly on disarmament, which only concerned a few states. Although the Soviet draft resolution did suggest a new U.N. agency to conduct international scientific rocket launches, this proposal did not provide a forum for the interests of non-spacefaring nations. China’s representative succinctly summarized the 20-power draft resolution as a proposal to create “space for peace.”17 The committee would facilitate the continuation of scientific cooperation as seen during the International Geophysical Year. By maintaining cooperation in outer space free from the controversies of disarmament, Cold War tensions might be reduced. In fact, developments in outer space might even create breakthroughs for disarmament. Reconnaissance satellites could automatically implement “Open Skies” and provide a means for the independent verification of disarmament that had always prevented an agreement. By creating a bubble around outer space as an area free from the Cold War and conflict, new avenues might be found for peace on the earth.18 The Soviet Union pitched its proposal as the realistic option because it recognized the inherent relationship between outer space activities and disarmament.

Making space for peace  35 As Poland summarized for its ally, the “rockets intended primarily for military use had been the basis of the breakthroughs into outer space.”19 Scientific cooperation could not be separated from disarmament because military rockets made the scientific investigation of space possible. The only way to reserve outer space for peaceful purposes was if there was a guarantee that rockets would not be used for military purposes, and the only way to guarantee that was if the United States withdrew from “foreign military bases.” The Soviet Union’s pitch failed in the first week of the First Committee’s debate. The only non-Soviet bloc nation to show any support for the Soviet proposal was Ceylon, modern-day Sri Lanka. In response, the Soviet Union changed its strategy by amending its draft resolution. The revised Soviet resolution, introduced on November 18, 1958, was effectively the same proposal as the 20-power draft resolution. Like the 20-power draft resolution’s proposal for an ad hoc COPUOS, the revised Soviet proposal suggested a preparatory committee to examine outer space issues. The revised draft abandoned all references to banning the military use of space and the elimination of foreign military bases. It was an acknowledgment that the American position had prevailed.20 The American and Soviet proposals were now so similar that other states urged the rivals to prepare a single resolution for unanimous adoption. On a motion from New Zealand, the First Committee temporarily adjourned to give the Soviet Union and the United States time to prepare a new resolution. Two days later, the United States submitted a revision of the 20-power draft resolution without support from the Soviet Union. The revised draft adopted substantial elements of the Soviet draft. For example, the preamble and the topics to be assigned to the ad hoc COPUOS were taken from the Soviet draft. Nevertheless, an agreement could not be reached due to a dispute over the composition of the ad hoc COPUOS.21 The United States and the sponsors of the 20-power draft resolution favored a committee that reflected the geographic distribution of U.N. member states. Ambassador Henry Cabot Lodge, Jr., speaking for the United States, explained that membership should be based on technical and scientific qualifications related to outer space activities. For example, the degree of contribution made to the International Geophysical Year might be considered. During its discussions with the Soviet Union, the United States had proposed a 13-member committee with two Latin American nations, one of which was Argentina; Australia and Canada from the British Commonwealth; one Western European nation; one Eastern European nation; and the permanent members of the U.N. Security Council except China, which was excluded to avoid a dispute over whether the communist or nationalist government should occupy China’s seat at the United Nations. The Soviet Union favored a committee based on an “equality of representation.” By equality, the Soviet Union meant a balanced number of socialist states and Western powers with some “neutral” states added. The Soviet Union identified 11 specific states to achieve the equality the Soviet Union desired. These would be four socialist states (Czechoslovakia, Poland, the Soviet Union, and Romania), four Western states (Argentina, France, the United Kingdom, the United States), and three “neutral” states (Egypt, India, and Sweden). Because

36  Making space for peace Argentina’s relationship with the United States was not the same as France’s or the United Kingdom’s, the Soviet Union offered to allow the United States to select one additional Latin American state for the committee, so long as the Soviet Union could veto that choice. The Soviet Union argued this proposal favored the United States because the Latin American states – at this point in history – were generally American allies. Feeling that the discussions with the Soviet Union had reached an impasse, the United States submitted the revised 20-power draft resolution to the First Committee without the Soviet Union’s support. The revised draft proposed an 18-member ad hoc COPUOS. The members would be Argentina, Australia, Belgium, Brazil, Canada, Czechoslovakia, France, India, Iran, Italy, Japan, Mexico, Poland, Sweden, the Soviet Union, Egypt, the United Kingdom, and the United States. Ambassador Lodge argued that the proposal was more than fair to the Soviet Union. Three of the four socialist nations that the Soviet Union wanted had been included on the committee. To give socialist states any more representation would be akin to providing the Soviet Union with a veto on the committee, which would only create a deadlock. The Soviet Union rejected the proposed committee because its composition gave the United States an “automatic majority.” The Soviet Union argued that the committee needed to reflect political reality. The reality was that the Soviet Union and the United States were the only space powers. Any decision that did not have support from both of them was doomed to fail. A committee dominated by American allies would only serve to accentuate Cold War divisions and would not create genuine cooperation in outer space.22 Some nonaligned nations became sympathetic to the Soviet argument. Although they did not accept the Soviet notion that the committee gave the United States an “automatic majority,” nonaligned states recognized that an agreement between the Soviet Union and the United States was a prerequisite to genuine cooperation in space. As a result, a group of nonaligned states – Burma, Egypt, and India – introduced a three-power draft resolution calling upon the Soviet Union and the United States to continue negotiations on the membership for the ad hoc committee. Afghanistan, Albania, Cambodia, Iceland, and Indonesia all voiced support for continued negotiations. The Soviet Union and Soviet bloc nations also signaled a willingness to continue negotiations. The United States, however, rejected further discussions. Ambassador Lodge explained that more talk would not help because the Soviet Union had a fundamentally different approach to the selection of committee members that could not be bridged with the views of the 20-power draft resolution. The United States added that there had been informal conversations with the Soviet Union, and those exchanges indicated that an agreement could not be reached. In response, the sponsors of the three-power draft withdrew support for their own proposal, and the First Committee rejected it.23 The First Committee then moved to vote upon the 20-power draft resolution and the Soviet draft resolution. The Soviet Union, however, withdrew its proposal after recognizing its proposal had little chance of success. As a result, only the

Making space for peace  37 20-power draft resolution was put to a vote. The First Committee adopted the resolution with 54 to 9 with 18 abstentions. The only states to vote against the resolution were the Soviet bloc nations. On December 13, 1958, the U.N. General Assembly officially adopted the resolution as U.N. Resolution 1348 (XIII) along a similar vote of 53 to 9 with 19 abstentions, again only the Soviet bloc voting against. With the adoption of Resolution 1348 (XIII), the United Nations formally created the ad hoc Committee on the Peaceful Uses of Outer Space.24 The ad hoc committee immediately faced boycotts. Czechoslovakia, Poland, and the Soviet Union rejected invitations to participate in the committee. The Soviet Union predicted that the committee would make no real progress without it. The boycott by socialist states triggered Egypt’s and India’s announcements that they would not participate in the committee either. Although they did not necessarily agree with the Soviet Union’s views, these nonaligned nations felt that the ad hoc committee would not be effective without the participation of the world’s leading space power at that time.25 The United States pressed the United Nations to convene the ad hoc committee without the Soviet Union. The United States did not want to encourage boycotts by stopping work whenever the Soviet Union walked out. The United States also wanted to avoid the implication that nothing could be done in outer space without Soviet input, a position that would jeopardize the United States’ attempt to take leadership in outer space affairs.

A survey of legal issues The ad hoc Committee on the Peaceful Uses of Outer Space convened without the Soviet Union in 1959. Of the committee’s 18 members, only 13 participated. These were Argentina, Australia, Belgium, Brazil, Canada, France, Iran, Italy, Japan, Mexico, Sweden, the United Kingdom, and the United States. The committee met at U.N. headquarters in New York from May 6 to June 25, 1959. The committee’s goal was to prepare a report on issues that the United Nations would need to address to facilitate outer space activities. To organize its work, the committee divided itself into two subcommittees of the whole: a Technical and Scientific Subcommittee and a Legal Subcommittee.26 The committee decided that its work should be limited to a survey of the technical and legal problems likely to be encountered as a result of human activities in space. The committee would also outline potential solutions to the problems it identified, but the committee would not recommend any actions. In addition, the committee agreed that matters of disarmament fell outside the committee’s terms of reference. The delegates noted that the name of the committee, the ad hoc Committee on the Peaceful Uses of Outer Space, inherently limited the committee to matters not involving the military use of outer space. When the committee finished its work, India would bitterly complain that the committee failed to discuss a ban on the military use of outer space, which it viewed as the most important topic. But the complaint demonstrated the counterproductive nature of India’s refusal to participate in the committee. Having chosen to boycott the committee,

38  Making space for peace India should not have been surprised that matters most important to it were not discussed. The Legal Subcommittee noted that its work, in particular, should be limited to the identification of legal issues because it was premature to attempt any codification of space law. The first satellite had been launched only 18 months earlier. Regulating space activities too early and without sufficient experience could result in overly restrictive rules that could retard the growth of outer space activities. Italy, for example, cited the early adoption of the Paris Convention of 1919 as having hindered the development of international commercial aviation by creating rules before the aviation industry had matured. Delaying the codification of space law had the benefit of allowing state practice, which can inform customary international law, to emerge. Moreover, the final responsibility to draft space law might not fall to the Legal Subcommittee but rather to the U.N.’s International Law Commission. The United Nations took this approach in 1949 when it directed the International Law Commission to codify the law of the sea. A preliminary survey of legal issues, therefore, appeared to be the most appropriate task for the Legal Subcommittee.27 The Legal Subcommittee, in its report to the ad hoc COPUOS, identified five issues that would require attention in the future. These were (1) how outer space and celestial bodies should be governed, including whether territorial claims could be made; (2) obligations to rescue and return space objects; (3) liability for space activities; (4) the management of spacecraft operations, such as communication and registration; and (5) the economic exploitation of space. The first and most important issue was how outer space should be governed. As a starting point, the Legal Subcommittee was unanimous that territorial claims are not allowed. The unchallenged passage of satellites over foreign nations during the International Geophysical Year already implied that outer space did not belong to anyone. Because outer space could not be claimed, that left a question as to what legal regime applies to space. The subcommittee discussed two options. First, space could be treated as res communis omnium, which would see space subject to a pseudo-joint sovereignty similar to the Antarctic Treaty system. Second, space could be res extra commercium, literally a “thing outside of commerce,” which would see space treated as a no-man’s land. Space would not be susceptible to territorial claims but also not managed but anyone. The majority of the Legal Subcommittee expressed a strong preference for res communis omnium, though the subcommittee did not recommend a regime in its report.28 A similar question arose as to what legal regime should apply to the moon and other celestial bodies. In the case of celestial bodies, there was a third option besides res communis omnium and res extra commercium. Celestial bodies could be res nullius, meaning unclaimed land susceptible to a territorial claim based on discovery or use. Mars, the moon, and asteroids could contain natural resources, and permitting territorial claims to these areas might provide economic incentive to develop outer space technologies. Allowing claims to celestial bodies might also incentivize colonization efforts. But the Legal Subcommittee was hesitant to

Making space for peace  39 permit any territorial claims. Australia, for example, argued that traditional claims to land based on discovery or occupation were no longer politically acceptable in the modern world. The United States wanted to incentivize exploration, exploitation, and settlement, but believed some kind of international administration could be created instead of a free-for-all land grab. The subcommittee ultimately concluded that the governance of celestial bodies was not pressing and deferred further consideration. The idea that anyone could land on another planet anytime soon seemed, in 1959, like science fiction.29 By the end of the year, however, the ad hoc COPUOS urged the United Nations to prohibit territorial claims to celestial bodies. The about face was a result of stunning achievements by the Soviet Union later that year. In September 1959, the Soviet Luna 2 probe became the first manmade object to reach another celestial body when it collided with the moon. A month later, Luna 3 became the first spacecraft to travel to another celestial body and return to the earth when it made a figure-8 trajectory to the moon and back. These developments made consideration of rules for celestial bodies far less premature than it had appeared just a few months earlier.30 The second issue that the Legal Subcommittee considered was the rescue and return of space objects. That an obligation existed to render assistance in the event of distress and to return space objects that landed in foreign territory in such situations was uncontroversial. Existing international law imposed such obligations in aviation and on the high seas. One instance of state practice already suggested that similar duties existed for outer space. On the evening of December 1, 1957, a flaming object was seen passing over the Alaskan sky. Orbital analysis suggested that the object could be part of a rocket stage that carried Sputnik. A local U.S. army headquarters mistakenly announced that the rocket stage had landed 100 miles southeast of Fairbanks, Alaska, on an army reservation. In fact, the rocket stage was still in orbit and later observed over California. The flaming object was simply a meteorite. The confusion, however, led the Soviet Academy of Sciences to demand that the United States return any fragments of the rocket. When the United States failed to return anything, Premier Khrushchev accused the United States of hiding them. Although no fragments were exchanged, all parties implicitly accepted that an obligation to return space objects existed.31 Third, the Legal Subcommittee considered the potential of liability for damage caused by space objects. The United States believed that this was one of the most pressing legal issues created by outer space activities. Creating a liability regime, however, was a complex task. A treaty on the matter would need to be technically precise in the identification of potentially liable states, a matter that would be complicated if more than one state were involved in a launch. For example, one state may have built the satellite and another state launched it. A standard of liability, such as negligence or absolute liability, would have to be chosen. Then there was the problem of procedures for submitting a claim for damages. In general, a state cannot be sued without its consent. A treaty would be necessary to obtain permission for victims to sue states that caused damage through their outer space activities.32

40  Making space for peace The fourth issue that the Legal Subcommittee discussed was the coordination of spacecraft operations. Coordination was necessary if outer space was to be used by multiple nations. Traffic rules had to be created to prevent collisions, radio frequencies allocated to prevent interference, and a spacecraft registry established to track satellites. The Legal Subcommittee referred the matter of traffic rules to the International Civil Aviation Organization. The subcommittee reasoned that a collision between two spacecraft was highly unlikely due to the vastness of space and the small number of satellites at the time. A collision between a rocket on its way to space and an aircraft, however, was more probable. Italy submitted a report that suggested rockets should be subject to aviation law when in airspace and outer space law when in space. This approach was similar to seaplanes, which are subject to maritime law while on the ocean and aviation law when in the air. While the Legal Subcommittee did not endorse the Italian view, the regulation of traffic between rockets and aircraft obviously required coordination with the International Civil Aviation Organization, which is responsible for civil air transportation. Accordingly, the Legal Subcommittee referred the problem to that organization for examination.33 The Legal Subcommittee referred the matter of radio frequencies to another international agency, the International Telecommunications Union, or ITU. Radio communication with satellites is vital to controlling them remotely and retrieving data from them. The radio spectrum, however, is limited and without coordination, satellites using the same frequencies as one another or other sources could cause interference. The responsibility for allocating radio frequencies had long fallen under the purview of the ITU. Originally named the International Telegraph Union when founded in 1865, it began regulating radio communications after 1902 when differing radio systems caused a message from the Prussian government to President Theodore Roosevelt to be lost. The ITU had since allocated radio frequencies for communication, radar, navigation, and scientific uses such as radio astronomy. The Legal Subcommittee acknowledged that the ITU was already planning to discuss radio use in outer space at a conference scheduled for 1959 under the topic “Communications with Outer Space.” In light of the development, the Legal Subcommittee decided to leave the matter to the ITU.34 One aspect of spacecraft operations that the Legal Subcommittee thought the United Nations should take direct responsibility for was registration. The Legal Subcommittee believed it would be prudent to create a centralized registration system that identified basic information about each space object. The information on the registry should be sufficient to enable the tracking and identification, such as call signs, descriptions, radio frequencies, and orbital trajectories. The information would serve as a catalog of spacecraft and help to identify a party liable for damages in the event of an accident.35 The last issue the Legal Subcommittee discussed was the economic exploitation of outer space. Though the economic exploitation of space had barely begun, Argentina and Brazil argued that all nations should be entitled to partake in the beneficial uses of outer space. The Latin American nations stated that their

Making space for peace  41 position flowed naturally from the preamble to Resolution 1348 (XIII), which established the ad hoc COPUOS, when it stated that the United Nations desired to promote the exploration and use of space “for the benefit of mankind.” The United Kingdom and the United States strongly opposed this position because the preamble was too vague to create a legal duty, and the United States argued that surely it could not be true that all uses of outer space had to be for the benefit of mankind. While NASA was committed to helping other nations launch scientific experiments into space, the United States rejected the idea that every launch had to serve an international purpose and the “benefit of mankind” rather than a national one. The Latin American nations grudgingly accepted the idea that the ad hoc COPUOS should simply state it was a “worthy standard” to carry out international programs for the benefit of all mankind but stopped short of this being a legal duty. Over the next decade, however, developing nations would come back to demand a legal right to share in the economic benefits of space activities.36

A permanent COPUOS When the First Committee of the U.N. General Assembly reviewed the ad hoc COPUOS’s report in December  1959, the main task was what to do next. The ad hoc COPUOS had provided an informative survey, but it had not taken any concrete actions toward cooperation in space. The ad hoc COPUOS itself recommended that the committee be made permanent so that it could continue working on the issues it had identified. A prerequisite for such a committee, however, was the Soviet Union’s participation. This led the First Committee to resume its debate from 1958 over the composition of the committee. The United States appeared more willing to accept a compromise in 1959 to entice the Soviet Union to participate in a committee on outer space. A  State Department cable to the mission at the United Nations signaled a willingness to amend the composition of the committee, though the United States still rejected “hard parity” with the Soviet Union.37 The desire to compromise was due in part to the necessity of the Soviet Union’s participation. The Soviet Union appeared to be the world’s premier space power at that time. On January 2, 1959, the Soviet Union launched Luna 1, the first probe to do a flyby of the moon. In September, the Soviet Luna 2 became the first probe to reach the moon when it collided with the surface and scattered pennants marked for the Soviet Union. On October 4, 1959, Luna 3 made a figure-8 trajectory around the moon and back. This mission, which carried a camera, provided the first images of the dark side of the moon, a place never seen from the earth because the moon is tidally locked. Although the United States launched its own probes to the moon, including Pioneer 4 in March 1959, the Soviet Union overall appeared ahead of the United States. This perception reinforced the sense that a committee on outer space would not work without the Soviet Union. A brief thaw in the Cold War also encouraged compromise. Premier Khrushchev had launched an effort of peaceful engagement with the West in the late 1950s to reduce the threat of conflict amid efforts to reorient the Soviet economy from military

42  Making space for peace production to the production of consumer goods. Premier Khrushchev’s efforts led to a historic visit to the United States in 1959, the first time that a Soviet leader had ever visited the United States. Though no agreement came from the visit, it did much to improve relations between the two nations. Then on December 1, 1959, the Soviet Union, the United States, and nearly a dozen other nations signed the Antarctic Treaty reserving that continent for peaceful and scientific purposes. The conclusion of the treaty days before the First Committee discussed outer space served as a prescient example of the kind of cooperation that was possible in outer space.38 On December 11, 1959, at the start of the First Committee’s discussion on outer space, the United States announced that an agreement had been reached between the United States and the Soviet Union to establish a permanent Committee on the Peaceful Uses of Outer Space. The superpowers planned to introduce a joint draft resolution which would describe the composition of the committee that had been agreed upon. The permanent COPUOS would have 24 members consisting of the original 18 members of the ad hoc committee plus six predominantly socialist nations: Albania, Austria, Bulgaria, Hungary, Lebanon, and Romania. The committee membership roughly met the Soviet Union’s demand for “equality of representation.” Seven of the states could be placed in the Western camp (Australia, Belgium, Canada, France, Italy, the United Kingdom, and the United States), seven in the socialist camp (Albania, Bulgaria, Czechoslovakia, Hungary, Poland, Romania, and the Soviet Union), and the remaining ten states could be considered neutral, or at least nonaligned (Argentina, Austria, Brazil, Egypt, India, Iran, Japan, Lebanon, Mexico, and Sweden). Obviously, the committee’s membership was not a perfect balance between East and West. Setting aside the fact that delegates vote based on national interest and not necessarily in blocks, many of the “neutral” states were American allies. Most notable among these were Japan, the Latin American states, and Iran – at this point in history. These nonaligned nations, however, met the United States’ requirement for the geographic distribution of membership while addressing to a degree the Soviet Union’s demand for parity.39 On December 12, 1959, the United Nations adopted Resolution 1472 (XIV), which established the permanent COPUOS along the lines laid out by the Soviet Union and the United States. The resolution established the COPUOS as a twoyear committee to convene in 1960–61 to continue the work of the ad hoc predecessor. Unfortunately, the compromise reached in Resolution 1472 was never implemented. During its entire two-year term, the COPUOS would hold only one session on November 27, 1961, and that was just to select its chairman and officers before adjourning indefinitely. The COPUOS failed to meet because 1960–61 would turn out to be some of the most contentious years of the Cold War. These years would also mark the start of the Space Race.40

Notes 1 Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), viii, 48,

Making space for peace  43











96–97; Martin Walker, The Cold War: A History (New York: Henry Holt and Company, 1993), 93–94; U.N. GAOR, Union of Soviet Socialist Republics: Draft Resolution, U.N. Doc. A/C.1/L.219 (7 November  1958); Arkady Sobolev, Union of Soviet Socialist Republics: Request for the Inclusion of an Item in the Provisional Agenda of the Thirteenth Session, U.N. Doc. A/3818 (17 March 1958). 2 United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 67, available at www.un.org/disarmament/publications/yearbook/ volume-1945-1970/. 3 United Nations, General Assembly Resolution 1148 (XII), Regulation, Limitation and Balanced Reduction of All Armed Forces and Armaments; Conclusion of an International Convention (Treaty) on the Reduction of Armaments and the Prohibition of Atomic, Hydrogen and Other Weapons of Mass Destruction, A/RES/1148(XII) (14 November  1957); United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 22–24, 64–71, 174, available at www.un.org/ disarmament/publications/yearbook/volume-1945-1970/. 4 U.N. GAOR, Union of Soviet Socialist Republics: Draft Resolution, U.N. Doc. A/C.1/L.219 (7 November 1958). 5 U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR., 983, 986, 991 (13, 17, 19 November 1958), Statement by Czechoslovakia Romania, and Ukraine. 6 Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945– 1974 (Washington, DC: NASA, 2000), 121–136, 210–214; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 96–97; Martin Walker, The Cold War: A History (New York: Henry Holt and Company, 1993), 96, 114, 132–133; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 166. 7 United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 11–12, 15–24, 48–59, available at www.un.org/disarmament/publi cations/yearbook/volume-1945-1970/; Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 4–6; Eighteen-Nation Committee on Disarmament, Final Verbatim Records, U.N. Docs. ENDC/PV.38 (16 May  1962–21 August  1969), 43, available at https://quod.lib.umich.edu/e/endc/; S. Everett Gleason, Memorandum on Discussion at the 250th Meeting of the National Security Council, Washington, May 26, 1955, 26 May 1955, available at https://history.state.gov/historicaldocuments/frus1955-57v20/d34. 8 U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.990, 994 (19, 24 November  1958), Statements by Austria and Denmark; U.N. First Committee, 14th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1080 (11 December  1959), 26 (Netherlands), 37 (Canada); U.N. First Committee, 16th Sess., Verbatim Records, U.N. Docs. A/C.1/ PV.1211 (5 December  1961), 42 (Peru); U.N. COPUOS. Verbatim Records. U.N. Docs. A/AC.105/PV.12 (11 September 1962), 42 (USA); U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1293, 1297 (6, 12 December  1962), 26 (Egypt), 32 (Cyprus); U.N. COPUOS Legal Sub-Committee, Summary Records. U.N. Docs. A/AC.105/C.2/SR.2 (29 May 1962), 3 (India); Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 4–5; Dwight D. Eisenhower, Dwight D. Eisenhower: 1960–61: Containing the Public Message, Speeches, and Statements of the President, January 1, 1960, to January 20, 1961 (Ann Arbor, MI: University of Michigan Library, 2005), 707, 714, available at http://name.umdl. umich.edu/4728424.1960.001. 9 Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 291–294, 240, 414–415; Susan Barr and Cornelia Ludecke, The History of the International Polar Years (Berlin: Springer, 2010), 236–237, 240, 143, 274– 275; Alexander Marshack, The World in Space (New York: Dell Publishing Co., Inc., 1958), 9–12; U.N. First Committee, 14th Sess., Verbatim Records, U.N. Docs. A/C.1/

44  Making space for peace

10 11

12 13

14

15 16 17 18

19

PV.1079–1080 (11 December 1959), Statements by Argentina, Australia, Egypt, India, Italy, Poland, Sweden; U.N. Ad Hoc COPUOS, Report Under Paragraph 1(d) of the General Assembly Resolution 1348(XIII) (Working Paper Submitted by the Delegation of the United States), U.N. Doc. A/AC.98/L.7 (27 May  1959), 2; Francis Lyall and Paul B. Larsen, Space Law: A Treatise (Burlington, VT: Ashgate, 2009), 8; Vladimir Kopal, “Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including the Moon and Other Celestial Bodies,” U.N. Audio Visual Library of International Law, available at https://legal.un.org/avl/ha/tos/tos.html; The Antarctic Treaty, Opened for Signature, 1 December 1, 1959, 402 U.N.T.S. 5778; United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 137, available at www.un.org/disarmament/publications/yearbook/ volume-1945-1970/. Henry Cabot Lodge, United States of America: Request for the Inclusion of an Additional Item in the Agenda of the Thirteenth Session, U.N. Doc. A/3902 (2 September 1958). U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.983 (13 November  1958); Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Leiden: Matinus Nijhoff, 2010), 29; U.N. First Committee, 13th Sess., Report of the First Committee, U.N. Doc. A/4009 (28 November  1958); “Main Committees,” United Nations, available at www.un.org/en/ga/maincommittees/index.shtml (accessed 19 August 2020). Byelorussia and Ukraine were not independent nations at this time, but they could vote in the U.N. General Assembly. Stanley Meisler, United Nations: A  History (New York: Grove Press, 1995), 7, 21, 26–32, 58–65, 72, 89, 192, 194–197, 199, 208–209; Martin Walker, The Cold War: A History (New York: Henry Holt and Company, 1993), 78, 106, 120–121; Christian H. Herter, Circular Instruction from the Department of State to Certain Diplomatic Missions, 4 August  1960, available at https://history.state.gov/historicaldocuments/ frus1958-60v02/d145; “Growth in United Nations Membership, 1945-Present,” United Nations, available at www.un.org/en/sections/member-states/growth-united-nationsmembership-1945-present/index.html (accessed 19 August  2020); “Security Council – Veto List (in Reverse Chronological Order),” U.N. Dag Hammarskjold Library, available at https://research.un.org/en/docs/sc/quick (accessed 19 August 2020). U.N. GAOR, Australia, Belgium, Bolivia, Canada, Denmark, France, Guatemala, Ireland, Italy, Japan, Nepal, Netherlands, New Zealand, Sweden, Turkey, Union of South Africa, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay and Venezuela: Draft Resolution, U.N. Doc. A/C.1/L.22 (13 November 1958). U.N. GAOR, Union of Soviet Socialist Republics: Draft Resolution, U.N. Doc. A/C.1/L.219 (7 November 1958). U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.983 (13 November 1958), Statement by France. U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.985 (14 November 1958), Statement by China. U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.982, 983, 985, 986, 988, 990, 991 (11, 13–14, 17–19 November 1958), Statements by Argentina, Australia, Belgium, Bolivia, Canada, China, Costa Rica, Cuba, France, Guatemala, Indonesia, Iran, Italy, Nepal, Netherlands, New Zealand, Peru, South Africa, Spain, Sweden, United Kingdom, United States, Venezuela, and Yugoslavia; United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 3–5, available at www. un.org/disarmament/publications/yearbook/volume-1945-1970/. U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.990 (19 November 1958), Statement by Poland.

Making space for peace  45 20 U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.982, 986, 988, 990, 991 (12, 17–19 November  1958), Statements by Byelorussia, Ceylon, Hungary, Poland, and Soviet Union; U.N. GAOR, Union of Soviet Socialist Republics: Revised Draft Resolution, U.N. Doc. A/C.1/L.219 (18 November 1958); U.N. GAOR, Australia, Belgium, Bolivia, Canada, Denmark, France, Guatemala, Ireland, Italy, Japan, Nepal, Netherlands, New Zealand, Sweden, Turkey, Union of South Africa, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay and Venezuela: Draft Resolution, U.N. Doc. A/C.1/L.22 (13 November 1958). 21 U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.988, 990–991, 993–994 (18–20, 24 November 1958), Statements by Canada, Egypt, El Salvador, Haiti, India, Philippines, Spain, New Zealand, United Kingdom, Yugoslavia. 22 U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.988–992, 994–995 (18–20, 24 November 1958), Statements by Australia, Austria, Bulgaria, Canada, Czechoslovakia, Denmark, El Salvador, India, Japan, Poland, Portugal, Romania, South Africa, Soviet Union, Ukraine, United Kingdom, and United States; U.N. GAOR, 13th Sess., 792nd plen. mtg., U.N. Doc. A/PV.792 (13 December  1958); U.N. First Committee, 13th Sess., Report of the First Committee, U.N. Doc. A/4009 (28 November 1958). 23 U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.990, 994–995 (19, 24 November 1958), Statements by Albania, Afghanistan, Australia, Austria, Burma, Cambodia, Columbia, Denmark, Egypt, Honduras, Iceland, Ireland, India, Indonesia, Mexico, Poland, Portugal, South Africa, Soviet Union, Ukraine, United Kingdom, and United States; U.N. GAOR, Burma, India and United Arab Republic: Revised Draft Resolution, U.N. Doc. A/C.1/L.224/REV.1 (24 November 1958). 24 U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.995 (124 November  1958), Statements by Afghanistan, Columbia, Iceland, India, Mexico, and Soviet Union; U.N. First Committee, 13th Sess., Report of the First Committee, U.N. Doc. A/4009 (28 November  1958); U.N. GAOR, 13th Sess., 792nd plen. mtg., U.N. Doc. A/PV.792 (13 December 1958), Statements by Austria, Lebanon, United Kingdom, and United States. 25 Vladimir Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including the Moon and Other Celestial Bodies, U.N. Audio Visual Library of International Law, available at https://legal.un.org/avl/ha/tos/tos.html; U.N. GAOR, 13th Sess., 792nd plen. mtg., U.N. Doc. A/PV.792 (13 December 1958), Statements by Austria, Czechoslovakia, Poland, and Soviet Union; U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.995 (24 November 1958), Statements by Czechoslovakia, Soviet Union, and United States; Stephen E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space Co-Operation (International Astronautical Federation, 2012), 24, available at www.iafastro.org/wp-content/uploads/2014/04/ IGY-ACHA-Study.pdf; U.N. First Committee, 14th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1080 (11 December 1959), Statement by India; Francis Lyall and Paul B. Larsen, Space Law: A Treatise (Burlington, VT: Ashgate, 2009), 18. 26 United Nations, General Assembly Resolution 1348 (XIII), Question of the Peaceful Use of Outer Space, A/RES/1348(XIII) (13 December 1958); U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4141 (14 July 1959), 3; Vladimir Kopal, “Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including the Moon and Other Celestial Bodies,” U.N. Audio Visual Library of International Law, available at https:// legal.un.org/avl/ha/tos/tos.html; U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, Draft Presented by the Rapporteur, U.N. Doc. A/AC.87/L.12 (19 June  1959), 1; U.N. Ad Hoc COPUOS, Summary Records, U.N. Docs. A/AC.98/C.2/SR.1 (26 May 1959). 27 U.N. Ad Hoc COPUOS, Summary Records, U.N. Docs. A/AC.98/C.2/SR.1–5 (26– 29 May  1959, 11 June  1959), Statements by Argentina, Australia, Belgium, Brazil,

46  Making space for peace Canada, Iran, Italy, Japan, Sweden, United Kingdom, and United States; U.N. First Committee, 14th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1079–1080 (11 December 1959), Statements by Bulgaria, Canada, China, Cuba, France, India, Iran, Netherlands, United States. 28 U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.982, 983, 986, 989–990 (12–13, 17–19 November 1958), Statements by Australia, Austria, Canada, Italy, Peru, United Kingdom, and Yugoslavia; U.N. Ad Hoc COPUOS, Summary Records. U.N. Docs. A/AC.98/C.2/SR.1–3 (26–28 May 1959), Statements by Brazil, France, Iran, United Kingdom; U.N. Ad Hoc COPUOS, Report of the Working Group to the Legal Committee, U.N. Doc. A/AC.98/C.2/L.1 (9 June 1959), 9; U.N. First Committee, 14th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1080 (11 December 1959), 27 (Netherlands); U.N. GAOR, 13th Sess., 792nd plen. mtg., U.N. Doc. A/PV.792 (13 December 1958), Statement by Austria; Henry R. Hertzfeld, et al., How Simple Terms Mislead Us: The Pitfalls of Thinking About Outer Space as a Commons, 58th IISL Colloquium on the Law of Outer Space, IAC-15–E7 5.2 x 29369 (2015). 29 U.N. Ad Hoc COPUOS, Report Under Paragraph 1(d) of the General Assembly Resolution 1348(XIII) (Working Paper Submitted by the Delegation of the United States), U.N. Doc. A/AC.98/L.7 (27 May 1959), 8; U.N. Ad Hoc COPUOS, Draft Report of the Working Group, U.N. Doc. A/AC.98/C.2/WP.5 (4 June 1969), 9; U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4141 (14 July 1959), 25; U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.982, 986 (11, 17 November 1958), Statements by Australia and Chile; U.N. Ad Hoc COPUOS, Summary Records, U.N. Docs. A/AC.98/C.2/SR.1, 3 (26, 28 May 1959), Statements by France. 30 U.N. First Committee, 14th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1079–1080 (11 December 1959), Statements by Canada and United States. 31 Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 399–403; U.N. Ad Hoc COPUOS, Report Under Paragraph 1(d) of the General Assembly Resolution 1348(XIII) (Working Paper Submitted by the Delegation of the United States), U.N. Doc. A/AC.98/L.7 (27 May 1959), 5; U.N. Ad Hoc COPUOS, Draft Report of the Working Group, U.N. Doc. A/AC.98/C.2/WP.5 (4 June 1969), 7; U.N. Ad Hoc COPUOS, Working Paper Submitted by the Delegation of Mexico, U.N. Doc. A/AC.98/L.8 (30 May 1959), 3; U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4141 (14 July 1959), 22, 24. 32 U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space. U.N. Doc. A/4141 (14 July 1959), 18, 23–24; U.N. Ad Hoc COPUOS, Draft Report of the Working Group, U.N. Doc. A/AC.98/C.2/WP.5 (4 June 1969), 4–5; U.N. Ad Hoc COPUOS, Working Paper Submitted by the Delegation of Mexico, U.N. Doc. A/AC.98/L.8 (30 May 1959), 4; U.N. Ad Hoc COPUOS, Report Under Paragraph 1(d) of the General Assembly Resolution 1348(XIII) (Working Paper Submitted by the Delegation of the United States); U.N. Doc. A/AC.98/L.7 (27 May 1959), 3; U.N. Ad Hoc COPUOS, Summary Records. U.N. Docs. A/AC.98/C.2/SR.3, 5 (28 May 1959–4 June 1959), Statements by Belgium and Iran. 33 U.N. Ad Hoc COPUOS, Relationship Between Missiles, Satellites, Rockets, and Conventional Aviation (Draft Working Paper Submitted by the Delegation of Italy), U.N. Doc. A/AC.98/L.6 (21 May  1959); U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space. U.N. Doc. A/4141 (14 July 1959), 4, 16–18, 24; U.N. Ad Hoc COPUOS, Draft Report of the Working Group, U.N. Doc. A/ AC.98/C.2/WP.5 (4 June 1969), 4; U.N. Ad Hoc COPUOS, Summary Records. U.N. Docs. A/AC.98/C.2/SR.2–3 (27–28 May 1959), Statements by France and ICAO.   U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space. U.N. Doc. A/4141 (14 July 1959), 22, 24; U.N. Ad Hoc COPUOS,

Making space for peace  47 Report Under Paragraph 1(d) of the General Assembly Resolution 1348(XIII) (Working Paper Submitted by the Delegation of the United States). U.N. Doc. A/AC.98/L.7 (27 May 1959) (27 May 1959), 5; U.N. Ad Hoc COPUOS, Draft Report of the Working Group, U.N. Doc. A/AC.98/C.2/WP.5 (4 June 1969), 6–7; U.N. Ad Hoc COPUOS, Summary Records, U.N. Docs. A/AC.98/C.2/SR.1 (26 May 1959), Statement by Italy. 34 U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space. U.N. Doc. A/4141 (14 July 1959), 3, 8–10, 15, 17, 24; U.N. Ad Hoc COPUOS, Report Under Paragraph 1(d) of the General Assembly Resolution 1348(XIII) (Working Paper Submitted by the Delegation of the United States), U.N. Doc. A/AC.98/L.7 (27 May 1959), 4; U.N. Ad Hoc COPUOS, Draft Report of the Working Group, U.N. Doc. A/AC.98/C.2/WP.5 (4 June 1969), 5; “Overview of ITU’s History,” International Telecommunications Union, available at www.itu.int/en/history/Pages/ITUsHistory. aspx (accessed 20 August 2020). 35 U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space. U.N. Doc. A/4141 (14 July 1959), 22, 24; U.N. Ad Hoc COPUOS, Report Under Paragraph 1(d) of the General Assembly Resolution 1348(XIII) (Working Paper Submitted by the Delegation of the United States), U.N. Doc. A/AC.98/L.7 (27 May 1959) 5; U.N. Ad Hoc COPUOS, Draft Report of the Working Group, U.N. Doc. A/AC.98/C.2/WP.5 (4 June 1969), 6–7; U.N. Ad Hoc COPUOS, Summary Records, U.N. Docs. A/AC.98/C.2/SR.1 (26 May 1959), Statement by Italy. 36 U.N. Ad Hoc COPUOS. Summary Records. U.N. Docs. A/AC.98/C.2/SR.3–5 (26 May  1959–4 June  1959), Statements by Argentina, Brazil, Iran, Italy, and Mexico; U.N. First Committee, 14th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1079–1080 (11 December 1959), Statements by Argentina, Brazil, China, and Poland. 37 Christian H. Herter, Telegram from the Department of State to the Mission at the United Nations, 6 November 1959, available at https://history.state.gov/historicaldocuments/ frus1958-60v02/d463. 38 Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 90–93; Martin Walker, The Cold War: A History (New York: Henry Holt and Company, 1993), 3–4, 133; U.N. First Committee, 14th Sess., Verbatim Records, U.N. Docs. A/C.1/ PV.1079–1080 (11 December 1959), Statements by Poland and Soviet Union. 39 Stephen E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space Co-Operation (International Astronautical Federation, 2012), 24, available at www.iafastro.org/wp-content/uploads/2014/04/IGY-ACHA-Study.pdf; Francis Lyall and Paul B. Larsen, Space Law: A Treatise (Burlington, VT: Ashgate, 2009), 18; U.N. First Committee, 14th Sess., Verbatim Records, U.N. Docs. A/C.1/ PV.1079 (11 December 1959), 6 (United States). 40 United Nations, General Assembly Resolution 1472 (XIV), International Co-Operation in the Peaceful Uses of Outer Space, A/RES/1472(XIV) (12 December 1959); U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4987 (27 November  1961); U.N. First Committee, 16th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1210 (4 December 1961), 22–23 (Canada); U.N. First Committee, 14th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1079 (11 December  1959), Statement by Chairman; Christian H. Herter, Circular Instruction from the Department of State to Certain Diplomatic Missions, 4 August 1960, available at https://his tory.state.gov/historicaldocuments/frus1958-60v02/d145; U.N. First Committee, 16th Sess., Report of the First Committee, U.N. Doc. A/4749 (21 April 1961).

3 Making space for disarmament

The Soviet Union appeared to be winning the Cold War battle for ideological superiority in 1960–61. The Soviet Union was achieving one new outer space first after another. Meanwhile, on the earth, the Soviet Union was in the ascendency as repeated international crises tarnished the United States’ reputation. But from a weakened international position, and out of a genuine desire to reduce Cold War tensions, President Kennedy affirmed the United States’ commitment to seek disarmament on the earth and in outer space.

The space race In October 1958, the United States established NASA to create a coherent space program in response to the launch of Sputnik the previous year. Before NASA, various military branches ran individual space projects, some of which competed with one another. For example, the Air Force and the Army each had a human spaceflight program. The Air Force plan called for putting a man into orbit and eventually landing on the moon. The Army proposed to put a man into space as early as possible by launching an astronaut on a suborbital trajectory, a plan criticized as merely “tossing a man up in the air and letting him come back.”1 NASA was to bring various programs such as these under a single federal agency. Human spaceflight, however, was not initially a priority for NASA under the Eisenhower Administration. President Eisenhower saw little purpose for human spaceflight, and the lack of any feasible military justification was one of the reasons that he had transferred all human spaceflight programs to NASA. President Eisenhower believed that unmanned probes could conduct scientific research far more cost-effectively and without endangering human life. While the Army wanted to send a man into space before the Soviet Union, President Eisenhower had no interest in such a competition with the Soviets. As a result, human spaceflight was not at first a major focus for NASA.2 While the creation of NASA did not stimulate human spaceflight in the United States, it did in the Soviet Union. When the Soviet Union launched Sputnik, the nation had no long-term space program. Sputnik was an opportunistic achievement championed by Sergei Korolev, the engineer who oversaw the development of the Soviet Union’s first ICBM. Korolev convinced Premier Khrushchev that

Making space for disarmament  49 because the military was already investing in an ICBM, only a minimal amount of additional effort was needed to launch the world’s first satellite. Beyond a few satellites, however, the Soviet Union had no concrete plans for further activities in space. But after the United States created NASA, Korolev used NASA as evidence that the Soviet government needed to invest more if the nation wanted to maintain leadership in space. Premier Khrushchev had, after all, touted Sputnik as proof of communism’s superiority to capitalism. Having made such broad claims, the Soviet Union could not readily give up its lead. After Sputnik, Korolev focused on obtaining government support for a human spaceflight program. Korolev had already begun research and development into life-support capable spacecraft as early as 1956. But Korolev lacked official support for such research and wanted political backing to obtain additional resources to develop human spaceflight. At the time, Korolev was forced to develop two types of spacecraft in parallel. One was the OD-1, which would serve as an unmanned military reconnaissance satellite. This project had official support. The second spacecraft was the OD-2, which was similar to the OD-1 but was capable of carrying a cosmonaut. Korolev wished to consolidate resources on the OD-2, which would render parallel development of the OD-1 unnecessary because the OD-2 could also serve as a reconnaissance satellite. But the Soviet military had no interest in spending additional resources to build a spaceship that could be manned. The creation of NASA, however, caused the Soviet government to back Korolev’s effort to build a life-support capable spacecraft. President Eisenhower’s decision to transfer responsibility for the development of human spaceflight to NASA appeared to signal a new American focus on manned spaceflight and a possible challenge to Soviet leadership in space. The Soviet Union needed to develop its own human spaceflight program to stay ahead. In November 1958, a month after NASA came into being, the Soviet Council of Chief Designers supported Korolev’s OD-2 spacecraft, and on January 5, 1959, the Soviet government approved the creation of a human spaceflight program. A year later on January 2, 1960, Premier Khrushchev declared that the human spaceflight program was no less important than the development of military rockets. This statement achieved Korolev’s long-standing goal to obtain government support for a space exploration program independent of the military. In 1960, Korolev began unmanned tests of the new Soviet spacecraft, named Vostok. On May 15, 1960, the Soviets launched the first Vostok, Korabl-Sputnik 1, meaning ship satellite. This spacecraft reached orbit, though an error prevented its reentry into the atmosphere. On August 19, 1960, the Soviets launched KorablSputnik 2 into orbit. This spacecraft successfully reentered the atmosphere carrying biological experiments including two dogs, Belka and Strelka, making it the first mission to successfully retrieve living organisms from orbit. With these successes, the Soviet Union began to consider a manned launch no later than December 1960, before NASA’s plan for a manned suborbital flight in January 1961, but a horrific disaster delayed Soviet plans.3 On October 24, 1960, an R-16 rocket exploded on the launch pad near Tyuratam, killing 126 people. The R-16 used an extremely volatile and toxic substance,

50  Making space for disarmament asymmetric dimethylhydrazine, as a fuel. Due to a fuel leak the previous day, the rocket’s launch had been delayed. To make up the lost time, the engineers decided to make repairs while the rocket was still fully fueled. When work was nearly complete, a spurious command caused the second stage rocket to ignite. A fireball engulfed the launch pad and burned so hot that many bodies were never recovered. Among the victims was the Commander-in-Chief of the Soviet Strategic Missile Forces, identified only by the Gold Star medal on his uniform. Although the R-16 had no direct relation to Korolev’s human spaceflight effort, the engineering and design bureaus that supported the R-16 also supported Vostok. Resources diverted to address the disaster meant that a manned Vostok mission had to be delayed.4 The Soviet Union tried to resume its plan for a manned mission to space by conducting two more unmanned Vostok launches in December  1960, but these tests were unsatisfactory. The first test on December 1, 1960, was Korabl-Sputnik 3, which carried another two dogs, Pcholka and Mushka, into orbit. But an error during reentry caused the spacecraft to overshoot Soviet territory and an automated self-destruct destroyed the spacecraft – and killed the canines – to prevent capture. This self-destruct feature was removed for manned missions. A second test on December  22, 1960, never received an official designation because the spacecraft did not reach orbit. A failure in the rocket caused the emergency escape system to activate, and the spacecraft landed in Siberia. Post-mission review of both missions revealed that a cosmonaut would have been killed on both flights due to a fault in the ejection system. Unlike American astronauts, Soviet cosmonauts in this era did not land in their spacecraft but rather ejected during descent and parachuted to the ground. On both missions, the ejection seat would have been jettisoned at the same time as the spacecraft’s hatch, causing the ejection seat to slam into the hatch. The conclusion was that more testing was needed before a manned flight.5 NASA’s effort to launch a man into space was not going smoothly either. NASA planned to launch the first man into space under Project Mercury starting with a series of suborbital flights. This meant the astronauts would reach an altitude considered to be space and would experience weightlessness, but the spacecraft would return to the earth before completing a full revolution around the earth. NASA planned to launch an astronaut in January 1961, but, like their Soviet counterparts, NASA engineers encountered delays and mishaps as a result of trying to do something novel. One memorable mishap occurred on November 21, 1960, when an almost comical series of events resulted in a 5-inch launch. NASA was attempting to launch an unmanned Mercury spacecraft on a Redstone rocket, resulting in the designation MR-1 for Mercury-Redstone 1. At first, the launch appeared to go well with smoke and fire billowing from the launch pad. But when the smoke cleared, the rocket was still there. Some engineers ran for cover as they realized that only the escape rocket had launched. This rocket, attached to the top of the Mercury spacecraft, was intended to pull the spacecraft away from the Redstone in an emergency. The escape rocket crashed moments later onto a beach 400 yards away. The engineers were then left with a standing, fully fueled Redstone rocket that

Making space for disarmament 51 could explode at any time, not unlike what happened to the Soviet R-16 rocket a month earlier. The Mercury’s parachute, which mysteriously deployed, threatened to catch the strong winds at Cape Canaveral to pull the entire rocket down. Fortunately, the rocket was safely disarmed. An investigation revealed that the problem was a faulty two-pronged electrical plug at the bottom of the Redstone. Normally, an electrical cable provides the rocket with power while on the ground. As the rocket lifts off, the cable unplugs, and the rocket turns to internal power. On this launch, one prong of the plug disconnected milliseconds before the other. This caused the rocket’s circuitry to mistakenly believe that it had lost electrical power while still grounded, and the engine shut down. As a result, the rocket lifted off, but only about five inches before sitting back on the ground. This resulted in a cascade of events like a runaway Rube-Goldberg device. Because the rocket had launched, the spacecraft proceeded with automated commands. It ejected the escape rocket as is normally done on a successful launch. The spacecraft’s instruments then detected gravity, which led it to conclude it had returned to the earth (though it never left). The spacecraft then released aluminum chaff to increase its radar signature for search teams and the parachute deployed.6 NASA recovered from the MR-1 mishap quickly. On December 19, 1960, it redid the test successfully as MR-1A. On December 19, 1960, NASA launched MR-2, which carried Ham, a chimpanzee, on a suborbital flight, making Ham the first hominid to enter outer space and return safely to the earth. Ham’s flight had been far from perfect. The launch angle was off, and Ham endured a bumpy ride into space. Ham landed 60 miles from the nearest recovery ship and was not retrieved until two and a half hours later by a Navy helicopter. When Ham boarded the U.S.S. Donner, however, he appeared none the worse for wear and was given an apple and half an orange for his intrepid adventure. A debate ensued within NASA as to whether the Redstone was now “manrated.” Man-rating was certifying that the rocket was safe for human spaceflight. Because NASA had never man-rated a rocket before, the criteria was vague. Although NASA’s Space Task Group and the Mercury astronauts felt the time had come for a manned launch, Werner von Braun’s team at Marshall Space Flight Center insisted on one flawless performance before conducting a manned launch. Because NASA had agreed in advance to perform the first manned flight only if its teams unanimously approved, NASA delayed plans to launch the first man into space.7 The delay gave the Soviet Union the critical time it needed to launch a man into outer space first. On March  9, 1961, the Soviet Union successfully conducted another unmanned test of the Vostok spacecraft with Korabl-Sputnik 4. On March 25, 1961, the Soviet Union followed through with another success with Korabl-Sputnik 5. Ominously, both flights carried mannequins with fully functional spacesuits. Then on April 12, 1961, Yuri Gagarin became the first man in space aboard Vostok 1. His mission lasted 1 hour and 48 minutes, and he returned to the earth after a single orbit without conducting any experimentation. But he was the first.8

52  Making space for disarmament Americans reacted to Gagarin’s historic flight with depression, though not shock as with Sputnik. A few weeks later, on May 5, 1961, the United States redeemed itself a little when Alan Shepherd became the first American in space following a 15-minute suborbital flight aboard Freedom 7. Premier Khrushchev, however, dismissed Shepherd’s mission as a “flea hop” into space. The United States would need to do something far more impressive if it were to assert supremacy in space and restore its self-confidence. On May 25, 1961, President Kennedy laid out exactly what the nation needed to do. In a speech titled “a Special Message to the Congress on Urgent National Needs,” President Kennedy spoke of the economy, foreign aid, the armed forces, and disarmament. He then turned to outer space. Acknowledging that the Soviet Union held the superiority in rocket technology for the moment and would likely achieve more impressive firsts in space, he set for the nation a more long-term goal. One that the Soviets could not immediately achieve and one that the United States might be able to do first. He declared: I believe that this nation should commit itself to achieving the goal, before this decade is out, of landing a man on the moon and returning him safely to the earth. No single space project in this period will be more impressive to mankind, or more important for the long-range exploration of space; and none will be so difficult or expensive to accomplish. Congress quickly backed the president’s request for funds, and the Space Race began. That the superpowers became locked in a Space Race was ironic because neither President Kennedy nor Premier Khrushchev cared about space exploration. The president candidly told NASA Administrator James Webb, “I’m not that interested in space.”9 The president complained, however, that the Soviets had made space a test of the capitalist and communist systems. The United States needed to counteract communism in space, just as it did in the Congo and Vietnam. Premier Khrushchev likewise supported Soviet achievements in space only for the propaganda value to prove that the Soviet Union was more successful than the United States. But the Soviets became the victims of their own success. Once Premier Khrushchev made dominance in outer space a measure of national success, he could not very well allow the United States to best the Soviet Union in space. Thus, altruism did not motivate either leader’s support for space exploration. Rather, the same tit-for-tat dynamic that drove suicidal Cold War policies like mutually assured destruction also drove the more constructive energy put into outer space programs.10

The years of crisis While the United States lagged behind the Soviet Union in the Space Race, the United States was also taking a shellacking from the Soviet Union on the earth. Between 1960 and 1961, the Soviet Union challenged the United States in one

Making space for disarmament  53 international crisis after another. And, for the most part, the Soviet Union was gaining the upper hand. The crises began on May 1, 1960, when the Soviet Union downed an American U-2 spy plane that had flown into Soviet airspace on a reconnaissance mission. The United States had launched a number of similar missions into Soviet airspace before as the Soviet Union initially did not have the ability to intercept the highaltitude aircraft. When this mission was flown, however, the CIA was aware that the Soviets may have a new surface-to-air missile that could intercept the U-2. In addition, the CIA was about to deploy reconnaissance satellites under Project Corona. Nevertheless, President Eisenhower authorized one final U-2 mission into Soviet airspace in advance of the Paris Summit, when he would meet Primer Khrushchev. Following the loss of the U-2, the United States fabricated a cover story that a high-altitude research plane had been lost over Turkey. Unbeknownst to them, the Soviet Union had captured the pilot, Gary Powers, alive along with suicide needles and cameras. When the Soviet Union revealed all this during a press conference, it was a propaganda coup. President Eisenhower accepted responsibility. The U-2 incident precipitated a severe decline in relations. The Soviet Union canceled the Paris Summit and abandoned disarmament talks. Premier Khrushchev’s sharp reaction had likely been forced to a degree by domestic politics. He had tried to engage in peaceful cooperation with the West but had not achieved any concrete result for this effort. Meanwhile, his effort to curb military spending had created enemies at home. Further, the United States was in the middle of a presidential campaign, and neither candidate – Vice President Richard Nixon and Senator John F. Kennedy – appeared to seek better relations with the Soviet Union. The strategy of peaceful cooperation seemed like a dead end. Hardliners likely influenced Premier Khrushchev to take an aggressive stance after the U-2 incident.11 President Kennedy, upon assuming office in January 1961, tried to arrest the slide in relations. The first step was to arrange for a new summit after the canceled Paris Summit. An agreement was reached to meet in Vienna in June 1961. The timing of the summit, however, could not have been worse for the United States. In April  1961, the United States launched the botched Bay of Pigs invasion to overthrow Fidel Castro in Cuba. The failed intervention was another propaganda boon for the Soviet Union, which pointed at the incident as evidence that the United States’ anticolonial rhetoric was hypocritical. Meanwhile, in the backdrop, the Soviet Union launched the first man into space that month. As a result, the summit began with the Soviet Union in the ascendency, and Premier Khrushchev acted that way. He threw President Kennedy off balance with a bullish tone, and by his own admission, President Kennedy’s performance at the summit was dismal. To make matters worse, the Vienna Summit accelerated an existing problem into another international crisis. One of the key points of discussion at Vienna was the status of Berlin. Germany had been divided into occupation zones after the Second World War. France, the United Kingdom, and the United States occupied

54  Making space for disarmament the west and the Soviet Union the east. Berlin, located within the Soviet zone, was further divided with the Western allies occupying the western half of the city and the Soviet Union the east. When the Western allies and the Soviet Union were unable to agree on the restoration of a unified Germany, they created separate governments – the German Federal Republic, or West Germany, and the German Democratic Republic, or East Germany. East and West Berlin were also given to East Germany and West Germany, respectively. Migration between the eastern and western halves of the city was common, but the migration route became critical after the East German government limited migration through the inner German border between East Germany and West Germany. The East German government wanted to plug this last gap in its border to the west. At the Vienna Summit, Premier Khrushchev pushed for a solution and suggested that if no agreement could be reached, East Germany might be allowed to close its border altogether. This generated fears that West Berlin would suddenly be subject to a blockade again as it had been in 1948–49. On June 10, 1961, less than a week after the Vienna Summit, the Berlin Crisis began. Premier Khrushchev announced his intent to sign a peace agreement with East Germany. This would give East Germany control over its borders and potentially end the West’s right to access West Berlin under postwar agreements with the Soviet Union. The announcement also sparked a mass exodus from East to West through Berlin. To stem the tide, on August 12, 1961, the Soviet Union erected a wall through Berlin overnight, instantly separating families and communities. As the West watched with bated breath to see whether the Soviets would go further than building a wall, yet another crisis unfolded. On August 31, 1961, the Soviet Union began a nuclear test series in which it detonated over 50 nuclear bombs in 60 days. The megatons released during the two months exceeded all prior nuclear testing by all nations combined. On October 30, 1961, the Soviet Union conducted an especially alarming test of the Tsar Bomba, a 57-megaton nuclear bomb, by far the most powerful nuclear bomb in history. The bomb was originally to yield 100 megatons, but the Soviets reduced the bomb’s power due to concerns about such a test. It was unclear, for example, if the aircraft dropping the bomb could outrun the blast of a 100-megaton bomb. The Soviet test series was significant not only for the unprecedented scale of testing but also because it ended an unofficial moratorium on nuclear testing widely supported by the international community. The problems generated by atmospheric nuclear tests have largely been forgotten today, but it was a genuine fear in the 1950s. The danger was demonstrated most clearly on March  1, 1954, when the United States tested its first dry hydrogen bomb in the Bikini Atoll of the Marshall Islands. The explosion was larger than expected, and a sudden wind change caused the radioactive fallout to spread outside the anticipated warning zone. The United States launched a hasty evacuation of 250 people, mostly natives, from the surrounding islands. Unknown to the United States was that a Japanese fishing boat was inside the new zone of radioactive fallout. When the boat returned to Japan, the crew had nausea, fevers, and bleeding gums – all signs

Making space for disarmament 55 of radiation poisoning. The incident caused an international uproar, especially due to Japan’s unique sensitivities to having its citizens irradiated. Under pressure from the international community, the superpowers eventually agreed to stop atmospheric testing. The tipping point came in 1957, when the Soviet Union, the United Kingdom, and the United States engaged in a tit-fortat test series that caused more nuclear tests to occur that year than any previous year. Each nation ultimately announced a unilateral pause in testing subject to the other parties refraining from testing. Though there was no formal treaty, between 1958 and September  1, 1961, nuclear testing effectively stopped. The termination of the unofficial test moratorium reignited the international community’s fears of environmental fallout and public health concerns. This was especially true because the expectation was that the United States would resume testing of its own, which would then cause the Soviet Union to conduct more tests and so on. Indeed, although President Kennedy initially heeded the environmental concerns and refrained from atmospheric nuclear tests, he felt he had no choice but to authorize atmospheric tests once the Soviet tests continued unabated.12 On September 18, 1961, in the midst of the crisis created by the Soviet Union’s renewed nuclear testing, U.N. Secretary-General Dag Hammarskjöld was killed – possibly as the result of an assassination attempt. With the death of the secretarygeneral, a fight ensued over the soul of the United Nations. The Soviet Union, which had long chafed under the Western-dominated organization, used the death as an opportunity to pursue structural changes in the United Nations. To fully understand the crisis caused by the secretary-general’s death, a digression must be taken to explain yet another catastrophe that began to unfold just a few months earlier: the Congo Crisis. The Congo Crisis began virtually from the moment of the Congo’s independence from Belgium on June 30, 1960. The Congo – based Leopoldville, not to be confused with the country by the same name based in Brazzaville – gained independence without any preparation to transfer power from colonial authorities to a native government. The result was that an independent Congo looked very much like the colonial Congo, with white Europeans retaining positions of power in the civil service and the military while black Africans served in subordinate roles. The continuation of the status quo quickly led to a mutiny in the army, the Force Publique. Reports of attacks on white offices and civilians spread across the country. On July 9, 1960, Belgium launched a military intervention ostensibly to protect white civilians, though the presence of the Belgian military not coincidentally encouraged a secessionist movement in mineral-rich areas with European mining interests. The United Nations responded by calling upon Belgium to withdraw and launching one of its first peacekeeping missions on July 14, 1960, with approximately 20,000 troops, the largest peacekeeping force ever at the time. The internal conflict in the Congo quickly became a proxy Cold War battlefield. At first, the Soviet Union and the United States had shown a rare moment of unity by voting in favor of U.N. intervention while the former colonial powers France and the United Kingdom abstained. As the Congolese government broke into two camps, each side asked for material assistance from the Soviet Union or the

56  Making space for disarmament United States. Viewed through Cold War lenses, these requests were seen as signals to align with the West or communism. When the American-backed faction, led eventually by Robert Mugabe, prevailed in the factional struggle, the Soviet Union condemned the U.N. intervention as propping up an American puppet government. The Soviet Union was especially discontent by September 1961, when U.N. peacekeepers launched an offensive against secessionist forces to help the Congolese government regain control of the country. The secessionists launched a devastating counterattack, which caused Secretary-General Hammarskjöld to fly to Northern Rhodesia to seek a ceasefire. The Secretary-General died on his way to the conference when his plane crashed, causing some to believe he was actually shot down in an assassination attempt. The death of Secretary-General Hammarskjöld led to another Cold War conflict over the United Nations. The organization had no order of succession upon the secretary-general’s death. A new one had to be appointed. Appointing a secretarygeneral requires a recommendation from the U.N. Security Council, which effectively gives the five veto-wielding Security Council members – China, France, the Soviet Union, the United Kingdom, and the United States – veto power over the selection of secretary-general. The Soviet Union decided to take advantage of the sudden power vacuum by pressing to replace the secretary-general with a three-person executive, or “troika.” The troika would have one representative from the West, one from the Soviet bloc, and one from the Third World. The structural change would address the Soviet Union’s long-running complaint of Western dominance of the organization and put an end to interventions like the one in the Congo. Thus, at a time when Cold War tensions were running high with the Berlin Wall and renewed nuclear testing, the United Nations became not a forum to reduce tensions but simply another Cold War proxy battlefield.13

Disarmament and the peaceful uses of outer space One of President Kennedy’s most memorable traits was his ability to express optimism, especially after a turn for the worst. When the Soviet Union launched Sputnik on the world’s first ICBM, he responded by campaigning to address the “missile gap.” When the Soviet Union closed diplomatic channels after the U-2 incident, President Kennedy made restoring talks with the Vienna Summit a priority. And after the Soviet Union put the first man in space, he declared the United States would go to the moon. President Kennedy’s spirit might be described in today’s terms as a “Yes, We Can” attitude. On September 25, 1961, in a speech to the U.N. General Assembly after a year of international crises, he captured that spirit once more. “We meet in an hour of grief and challenge.” Secretary-General Hammarskjöld was dead. But President Kennedy urged the United Nations to recommit itself to the organization’s original mission: the maintenance of international peace and security. He asked member states to reject the Soviet proposal to replace the secretarygeneral with a “troika,” which would gut the effectiveness of the United Nations. He then identified two issues critical to the maintenance of peace and security.

Making space for disarmament 57 First, disarmament negotiations must resume. Disarmament had been a goal for the last 15 years, but it was “no longer a dream – it is a practical matter of life or death.” Humanity had entered an age where it could destroy itself in an instant. Nuclear weapons, President Kennedy declared, were like the “sword of Damocles” hanging over everyone. He suggested that the logical place to start on disarmament was a nuclear test ban treaty. President Kennedy acknowledged that the United States had itself resumed nuclear testing, but only because the Soviet Union had done so. A treaty ending the tests was a first step. Second, “[a]s we extend the rule of law on earth, so must we also extend it to man’s new domain – outer space.” President Kennedy urged that outer space be shielded from the conflicts of the Cold War. Ideas of imperialism and territorial claims should be banished from this realm. International law and the U.N. Charter should be extended to outer space. Weapons of mass destruction should be prohibited, and cooperative efforts related to weather prediction, communication, and the peaceful uses of outer space encouraged.14 President Kennedy’s address to the United Nations reflected a key shift in American policy. Whereas the Eisenhower Administration had insisted that disarmament and the peaceful uses of outer space be treated as distinct and unrelated issues, President Kennedy’s speech reflected a willingness to link the two topics. American policy had begun to change over the last year. For example, on October 4, 1960, Leonard C. Meeker, the State Department lawyer who represented the United States at the COPUOS, urged that something be done to end the deadlock that prevented the COPUOS from meeting. He wrote to his superiors that military competition in space had to be eliminated: “Whether this is done in the outer space context or the disarmament context is less important than that it should be done and done promptly.”15 After President Kennedy assumed office in January 1961, the willingness to link disarmament and the peaceful uses of outer space became more apparent. One of President Kennedy’s main goals was the resumption of disarmament negotiations, and in March 1961, the United States asked the United Nations to delay discussion of disarmament until the next General Assembly session in September after bilateral talks with the Soviet Union showed some promise. The United Nations obliged on April 21, 1961, by deferring discussion of disarmament to September. On the same day, however, the United Nations also deferred discussion of the COPUOS. Progress on the peaceful uses of outer space and disarmament had thus become linked.16 As the U.N. General Assembly’s session opened in 1961, the superpowers were making progress on disarmament. On September 20, 1961, the Soviet Union and the United States signed a Statement of Agreed Principles outlining the goals for future disarmament talks. Though some of the goals were farfetched – one sought to replace national armies with a U.N. military force to maintain international peace and security – the statement did combine the United States’ preference for specific and limited disarmament agreements with the Soviet Union’s goal of general disarmament. In short, the statement allowed both sides to move forward with further negotiations. On September  25, 1961, the Soviet Union and the United States each submitted a proposal for continued talks to the United Nations. The

58  Making space for disarmament Third World, led by India, introduced a resolution directing the superpowers to work on a joint plan instead. In response, the Soviet Union and the United States resumed bilateral talks.17 In the meantime, the superpowers achieved a breakthrough on the peaceful uses of outer space. On December  2, 1961, Australia, Canada, Italy, and the United States submitted a draft resolution on “International Co-Operation in the Peaceful Uses of Outer Space.” Although many delegates favored the proposed resolution, they recognized that Soviet support was a prerequisite to the adoption of any resolution concerning outer space. On December 7, 1961, India – again acting as a mediator – announced that the superpowers were in talks to submit a joint resolution and asked that a vote be delayed until the superpowers returned with a compromise. That compromise came just a few days later on December 11, 1961, when the Soviet Union and the United States introduced a joint resolution on the peaceful uses of outer space cosponsored by 22 other nations. The joint resolution on the peaceful uses of outer space contained two key parts. First, the resolution proposed to establish, in writing, the first the basic laws of outer space. The resolution began with two fundamental legal principles: international law extends to outer space and no state may assert sovereignty to any part of outer space. The second part of the resolution proposed to resume the development of outer space law and cooperation in outer space through the Committee on the Peaceful Uses of Outer Space.18 The first written law of outer space – that international law applies – required some clarification. Everyone at the U.N. General Assembly agreed that there was no international law specific to outer space yet in the way that maritime law existed for the high seas or aviation law for airspace. Nevertheless, certain principles of international law were generally applicable and should apply to space as well. For example, the duty to resolve disputes peacefully under the U.N. Charter extends to space. Some states suggested that further principles for space could be developed through analogies with aviation and maritime law. Others commented, however, that analogies were not always appropriate because operations in outer space were potentially far more dangerous than those in the air or on the high seas.19 The second law that outer space is not susceptible to territorial claims was universally accepted, though delegates at the United Nations recognized the law was incomplete as to what legal regime should apply instead. The prohibition on territorial claims was universally accepted to prevent the militarization of outer space. If states could claim a part of space or the moon, military resources would eventually have to be sent to defend those claims. The prohibition on territorial claims, however, left unanswered how space was to be governed. As Victor Andrés Belaunde of Peru stated, governance in space could not be established through “negative principles” such as disclaiming sovereignty. The United Nations would have to decide what legal regime does apply to space. One option, identified by the ad hoc COPUOS, was to treat space as a no-man’s land. A second option articulated by Ambassador Belaunde was a kind of collective sovereignty and international management of space. For example, the international community would agree on rules for environmental protection and to avoid interference

Making space for disarmament 59 between states. For now, however, the legal regime that should govern space was an unsettled matter.20 The other key part of the joint resolution was the decision to reconvene the Committee on the Peaceful Uses of Outer Space. Since 1959, the COPUOS had not met because of a dispute over the membership of the committee. The Soviet Union insisted that the COPUOS needed to have an equal number of states from the Western allies, the Soviet bloc, and the Third World. Although the Soviet Union had agreed to a composition of the committee at the end of 1959 in U.N. Resolution 1472 (XIV), the Soviet Union backed away from that compromise. The United States insisted that the composition agreed upon in 1959 should remain in place with the addition of two African nations to reflect new membership in the United Nations. The Soviet Union, however, complained that the COPUOS still contained too many Western allies. The impasse ended when the delegates to the COPUOS agreed to proceed under the rule of consensus. The rule of consensus was an unwritten agreement to proceed civilly and without the need for formal voting. A rule of consensus is not the same as a requirement for unanimity. As Australia said when explaining the agreement, the rule of consensus does not give any state a veto, but the committee may proceed only if there is at minimum non-opposition from all members. The distinction is subtle but important. In practice, the main difference between consensus and unanimity is that consensus considers how much a state cares about an issue. If a state disagrees with an action supported by the vast majority of the committee, but does not feel strongly, it could simply not oppose to allow the committee to proceed. A vote would not be forced on the state to put it in the awkward position of voting against or abstaining to a popular proposal. On the other hand, if the state felt very strongly on an issue, it could oppose, and the committee would not be able to act. The rule of consensus was critical to resolving the Soviet Union’s concerns about the composition of the committee. By proceeding under the rule of consensus, the Soviet Union no longer had to concern itself with whether a sufficient number of socialist states were on the COPUOS to protect its interests. The Soviet Union could simply oppose any proposal that it felt strongly about to prevent a consensus. This rule accounted for the reality that any decision on space that did not have support from the Soviet Union and the United States would not be effective.21 Although a joint resolution on the peaceful uses of outer space had been settled upon by December 11, 1961, the United Nations held off on a vote until an agreement was reached on disarmament. That happened on December 13, 1961, when the Soviet Union and the United States submitted another joint resolution. This joint resolution called for the creation of the Eighteen-Nation Disarmament Committee. The new committee would replace the Ten-Nation Disarmament Committee created in 1959, which never did much work because the Soviet Union walked out after the U-2 incident. The Eighteen-Nation Disarmament Committee would retain the same states as the ten-nation committee: five Western states (Canada, France, Italy, the United Kingdom, and the United States), and five socialist states (Bulgaria, Czechoslovakia, Poland, Romania, and the Soviet Union). The eight

60  Making space for disarmament new states were all “neutral” states (Brazil, Burma, Egypt, Ethiopia, India, Mexico, Nigeria, and Sweden). On December 20, 1961, the United Nations adopted the two joint resolutions in back-to-back votes. Resolution 1721 (XVI) adopted the first two written principles of outer space and reestablished the Committee on the Peaceful Uses of Outer Space. Resolution 1722 (XVI) created the Eighteen-Nation Disarmament Committee. While the first resolution reaffirmed a “space for peace” to discuss the scientific exploration of space, the second created space to discuss disarmament after a four-year hiatus.22

Notes 1 Loyd S. Swenson and James M. Grimwood, et al., This New Ocean: A History of Project Mercury (Washington, DC: NASA, 1989), Chapter 4. 2 Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 105– 108, 111, 122; Loyd S. Swenson and James M. Grimwood, et al., This New Ocean: A  History of Project Mercury (Washington, DC: NASA, 1989), Chapter  4; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 213–218. 3 Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945– 1974 (Washington, DC: NASA, 2000), 176–177, 180, 186–188, 192–195, 237, 244– 245, 250–255; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 194–195. 4 Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945– 1974 (Washington, DC: NASA, 2000), 214–217, 319–321; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), xv. 5 Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945– 1974 (Washington, DC: NASA, 2000), 259–260. 6 Charles Murray and Catherine Bly Cox, Apollo (New York: Simon & Schuster, 1989), Chapter 4; Loyd S. Swenson and James M. Grimwood, et al., This New Ocean: A History of Project Mercury (Washington, DC: NASA, 1989), Chapter 9. 7 Loyd S. Swenson and James M. Grimwood, et al., This New Ocean: A History of Project Mercury (Washington, DC: NASA, 1989), Chapters 9–10; Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–1974 (Washington, DC: NASA, 2000), 265–267. 8 Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945– 1974 (Washington, DC: NASA, 2000), 262–282; Loyd S. Swenson and James M. Grimwood, et al., This New Ocean: A History of Project Mercury (Washington, DC: NASA, 1989), Chapter 10; Martin Walker, The Cold War: A History (New York: Henry Holt and Company, 1993), 148. 9 Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 125. 10 Loyd S. Swenson and James M. Grimwood, et  al., This New Ocean: A  History of Project Mercury (Washington, DC: NASA, 1989), Chapters 10–11; Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–1974 (Washington, DC: NASA, 2000), 262–282, 292–297, 351–355; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), xvii, 110, 123–124; John F. Kennedy, Special Message to Congress on Urgent National Needs, May 25, 1961, 25 May 1961, available at www.jfklibrary.org/archives/other-resources/john-f-kennedy-speeches/

Making space for disarmament 61 united-states-congress-special-message-19610525; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 194–195, 210–211. 11 Martin Walker, The Cold War: A History (New York: Henry Holt and Company, 1993), 133–135; United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 84, available at www.un.org/disarmament/publications/year book/volume-1945-1970/; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 96–97, 105–108; Christian H. Herter, Circular Instruction from the Department of State to Certain Diplomatic Missions, 4 August  1960, available at https://history.state.gov/historicaldocuments/frus1958-60v02/d145; William E. Burrows, This New Ocean: The Story of the First Space Age (New York: Random House, 1998), 200. 12 Martin Walker, The Cold War: A History (New York: Henry Holt and Company, 1993), 148–149,153–158; Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 8–25, 36, 54–60, 66–68, 70, 76–78, 85–91, 98–99, 114–115, 120–122, 127, 134, 176–177; Robert A. Divine, Blowing on the Wind: The Nuclear Test Ban Debate 1954–60 (New York: Oxford University Press, 1978), 3–7, 17; United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 15–16, 191–208, 212–218, available at www.un.org/ disarmament/publications/yearbook/volume-1945-1970/; Eighteen-Nation Committee on Disarmament, Final Verbatim Records, U.N. Docs. ENDC/PV.6 (21 March 1962), 13, PV.8 (23 March 1962), 21, PV.15 (4 April 1962), 6, 22, available at https://quod. lib.umich.edu/e/endc/. 13 Stanley Meisler, United Nations: A  History (New York: Grove Press, 1995), 115– 118, 121, 133; Martin Walker, The Cold War: A History (New York: Henry Holt and Company, 1993), 147; David Van Reybrouck, Congo: The Epic History of a People (Amsterdam: De Bezige Bij, 2010), 266, 286–316. 14 John F. Kennedy, Address at the U.N. General Assembly, 25 September  1961, 25 September  1961, available at www.jfklibrary.org/learn/about-jfk/historic-speeches/ address-to-the-united-nations-general-assembly. 15 Leonard Meeker, United States Policy and the Fifteenth General Assembly, 4 October 1960, available at https://history.state.gov/historicaldocuments/frus1958-60v02/d210. 16 United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 85–86, available at www.un.org/disarmament/publications/yearbook/ volume-1945-1970/; U.N. First Committee, 16th Sess., Report of the First Committee, U.N. Doc. A/4749 (21 April 1961). 17 United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 87–90, available at www.un.org/disarmament/publications/year book/volume-1945-1970/; Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 96–102. 18 U.N. GAOR, Australia, Canada, Italy and United States of America: Draft Resolution, U.N. Doc. A/C.1/L.301 (2 December 1961); U.N. First Committee, 16th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1210, 1212–1213 (4, 6–7 December 1961), Statements by Bulgaria, Greece, India, Peru, South Africa, Soviet Union, and Ukraine; U.N. First Committee, 16th Sess., Summary Records, U.N. Docs. A/C.1/SR.1214 (11 December 1961), Statements by Chairman, Austria, France, Peru, Soviet Union, United Kingdom, and United States; Vladimir Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including the Moon and Other Celestial Bodies (U.N. Audio Visual Library of International Law), available at https://legal.un.org/avl/ha/tos/tos.html; Stephen E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space Co-Operation (International Astronautical Federation, 2012), 24, available at www.iafastro.org/wp-content/ uploads/2014/04/IGY-ACHA-Study.pdf.

62  Making space for disarmament 19 Vladimir Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including the Moon and Other Celestial Bodies (U.N. Audio Visual Library of International Law), available at https://legal.un.org/avl/ha/ tos/tos.html; U.N. First Committee, 16th Sess., Verbatim Records, U.N. Docs. A/C.1/ PV.1210–1213 (4–7 December  1961), Statements by Argentina, Australia, Canada, Egypt, India, Iran, Poland, Sweden, and the United Kingdom; U.N. First Committee, 16th Sess., Summary Records, U.N. Docs. A/C.1/SR.1212, 1214 (6, 11 December 1961), Statements by France, Japan, and United States; U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4141 (14 July 1959), 23; U.N. Ad Hoc COPUOS, Working Paper Submitted by the Delegation of Mexico, U.N. Doc. A/AC.98/L.8 (30 May 1959); Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Leiden: Matinus Nijhoff, 2010), 12–13, 20–21; U.N. First Committee, 17th Sess., Summary Records, U.N. Docs. A/C.1/SR.1290 (4 December 1962), Statement by Peru; U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.987–989 (17–18 November  1958), Statements by New Zealand, Netherlands, the United Kingdom, and Yugoslavia; U.N. COPUOS Legal Sub-Committee. Summary Records. U.N. Docs. A/AC.105/C.2/SR.2, 3, 5 (29–30 May, 5 June 1962), Statements by Japan, Lebanon, and Mexico; U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1296 (10 December 1962), Statement by Brazil; U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/ SR.1346 (5 December 1963), Statement by Brazil. 20 U.N. First Committee, 16th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1210–1212 (4–6 December 1961), Statement by Argentina, Italy, Peru, Sweden, United Kingdom; U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1290, 1295 (4, 7 December 1962), Statement by Iran and Peru; U.N. First Committee, 14th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1080 (11 December 1959), Statement by Canada; U.N. First Committee, 16th Sess., Summary Records, U.N. Docs. A/C.1/ SR.1211, 1213–1214 (5, 7, 11 December 1961), Statements by Brazil, Iran, and Italy; U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1290 (4 December 1962), 52 (Peru); U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.982 (11 November 1958), Statement by Italy. 21 U.N. First Committee, 16th Sess., Summary Records, U.N. Docs. A/C.1/SR.1210–1214 (5–11 December  1961), Statements by China, Czechoslovakia, France, India, Japan, Poland, Ukraine, Soviet Union, United Kingdom, and United States; U.N. First Committee, 16th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1210–1211 (4–5 December 1961), Statement by Argentina, Australia, Canada, Egypt, Italy, Soviet Union, United Kingdom, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.1–2, 7 (28–29 May 1962, 7 June 1962), Statements by Italy, Romania, Soviet Union, and United States; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5181 (27 September 1962), 2; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.28 (3 May 1963), Statements by Soviet Union and United States; Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Leiden: Matinus Nijhoff, 2010), 30; Vladimir Kopal, The Progressive Development of International Space Law by the United Nations (U.N. Audio Visual Library of International Law), 10 minutes, available at http://legal.un.org/avl/ls/Kopal_LOS_video_1.html. 22 United Nations, General Assembly Resolution 1721 (XVI), International Co-Operation in the Peaceful Uses of Outer Space, A/RES/1721(XVI) (20 December 1961); United Nations, General Assembly Resolution 1723 (XVI), Question of Disarmament, A/ RES/1722(XVI) (20 December 1961); U.N. First Committee, 16th Sess., Report of the First Committee, U.N. Doc. A/5026 (13 December 1961); United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 80, 84, 90–91, available at www.un.org/disarmament/publications/yearbook/volume-1945-1970/.

4 Noninterference and nuclear weapons

The United Nations began its attempt to write the law of outer space at a turbulent time. While the atmosphere at the Committee on the Peaceful Uses of Outer Space was initially optimistic, relations between the superpowers soured as disarmament talks failed – again – and the United States detonated a nuclear bomb in space. But the Cuban Missile Crisis forced the Soviet Union and the United States back to the negotiating table. In the aftermath of that crisis, both nations desperately sought to reduce tensions to step back from the brink of war. They began with a breakthrough agreement to ban nuclear testing in certain environments, including outer space. Within months, they followed up with other agreements, including an accord to avoid interference in space and a ban on the stationing of weapons of mass destruction in space.

A promising start The Committee on the Peaceful Uses of Outer Space and the Eighteen-Nation Disarmament Committee began their work in March 1962 during a moment of optimism. This optimism had been generated by a friendly exchange of letters between President Kennedy and Premier Khrushchev seeking cooperation in outer space and progress on disarmament. The exchange began on February  21, 1962, when Premier Khrushchev congratulated the United States on John Glenn’s orbital flight the previous day. This was the first time that an American astronaut had orbited the earth, as opposed to going to space on a suborbital flight. In the same letter, Premier Khrushchev suggested that space research would advance considerably if the superpowers combined their efforts, and such cooperation would help reduce fears that space would be “used for ‘cold war’ purposes and the arms race.” President Kennedy took the offer of cooperation at face value. On March 7, 1962, President Kennedy sent a letter proposing cooperation between the Soviet Union and the United States in several areas of space research, including creating a system of weather satellites, building satellite tracking stations, mapping the earth’s magnetic field, establishing a global communication system, and space medicine. President Kennedy suggested that they send representatives to discuss further details on the sidelines of the upcoming COPUOS meetings. Premier Khrushchev agreed.

64  Noninterference and nuclear weapons Cooperation in outer space, however, remained dependent upon progress on disarmament. Premier Khrushchev wrote President Kennedy, “you and we know, Mr. President, that the principles for designing and producing military rockets and space rockets are the same.” Because of this inherent relationship between the peaceful and military uses of space, the extent of peaceful cooperation in space was limited until the two nations could find a “solution to the disarmament problem.” Thus, the upcoming talks at the COPUOS and the Eighteen-Nation Disarmament Committing, established by back-to-back U.N. resolutions, were two sides of the same coin. The Disarmament Committee would address the military uses of outer space, including other disarmament issues, and the COPUOS would focus on the peaceful uses of outer space. Progress in the two committees was dependent on one another.1 The Eighteen-Nation Disarmament Committee met at the United Nations’ offices in Geneva, Switzerland, on March  14, 1962. This meeting was the first time that disarmament talks had been held since the collapse of the Ten-Nation Disarmament Committee in 1960 after the U-2 incident. To mark the importance of the occasion, representatives with the rank of foreign minister attended the first two weeks of meetings. For the United States, this meant Secretary of State Dean Rusk was in personal attendance. Opening remarks, some of which commented on the friendly exchange of letters between Premier Khrushchev and President Kennedy, established a cooperative tone for the committee. A priority for the Disarmament Committee was the conclusion of a nuclear test ban treaty. The international community had been pressing for a test ban treaty since the unofficial moratorium on testing ended in September 1961. For example, the United Nations passed a resolution on November 8, 1961, calling for the conclusion of a test ban treaty. The United States did not need convincing; a nuclear test ban treaty had been a priority for President Kennedy since taking office. The Soviet Union agreed to talks on November 28, 1961. The negotiations, however, became bogged down on how compliance with a test ban would be verified. When the Disarmament Committee convened, it decided to force the parties to continue talking by establishing a Subcommittee for the Discontinuance of Nuclear Weapons Tests in which the only members were the Soviet Union, the United Kingdom, and the United States. These were the world’s only nuclear powers except France, which boycotted the committee. A factor that made the negotiations for a nuclear test ban treaty difficult at the time was the United States’ impending resumption of atmospheric nuclear tests. The United States had resumed nuclear testing on September 15, 1961, shortly after the Soviet Union, but American tests were initially limited to underground detonations. On March 2, 1962, less than two weeks before the Disarmament Committee began, President Kennedy announced that the United States would conduct atmospheric tests as well. The nonaligned members of the Disarmament Committee, such as India, urged the United States to cease all testing pending negotiations. The United States refused. President Kennedy felt that the Soviet Union had deceived the United States the previous year by engaging in nuclear test ban negotiations while simultaneously preparing to end a three-year moratorium on

Noninterference and nuclear weapons 65 nuclear testing. President Kennedy categorically refused any further unenforced moratoriums. He was willing, however, to halt the impending tests if the talks at the Disarmament Committee showed promise by late April.2 Meanwhile, the COPUOS convened in New York in March  1962. The committee’s first task was to elect its officers. To maintain the committee’s neutrality between the Soviet Union and the United States, the committee chose Franz Matsch of Austria as chairman. The occupation of Austria by the Western Allies and the Soviet Union after the Second World War ended in 1955 on the understanding that Austria would remain neutral and would not join either NATO or the Warsaw Pact. This agreement made Austria a neutral buffer and bridge between the superpowers throughout the Cold War. Austria’s neutrality made it one of the few acceptable options to chair the COPUOS. While the United Nations often rotates the chairmanship of committees, the need to maintain a Cold War balance on the COPUOS meant that an Austrian would remain the committee’s chairman for decades. The committee balanced out the remainder of its officers with Mihail Raseganu of Romania as vice chairman and Geraldo de Carvalho-Silos of Brazil as rapporteur.3 The COPUOS also set about organizing its work. The committee reestablished the same subcommittees as its ad hoc predecessor, a Legal Subcommittee and a Technical Subcommittee. These subcommittees were to meet in Geneva later that year in the summer to conduct substantive work and prepare draft reports. The COPUOS would then reconvene in New York in the fall to prepare a final report for the U.N. General Assembly shortly before its session began. The COPUOS would henceforth follow a similar pattern as a rule every year: an organizational meeting in New York, subcommittee meetings in Geneva, followed by a final parent committee meeting in New York to conclude.4 When the COPUOS Legal Subcommittee convened in Geneva in May 1962, it began with the selection of its officers just like the parent committee. The Legal Subcommittee chose as its chairman the eminent international lawyer Manfred Lachs of Poland. Although from an Eastern bloc nation, Lachs also had connections with the West that made him a suitably neutral candidate. During the Second World War, he was a member of the Western-backed Polish government-in-exile in London, where Lachs was studying at the School of Economics when the war broke out. In addition, Lachs had impeccable qualifications for the job. He served in the Polish foreign ministry after the war where he quickly became Director of the Legal Department. In 1957, he was appointed to the U.N. International Law Commission, an exclusive body of only 34 individuals that engage in the progressive development of international law. An appointment requires a national recommendation and a U.N. General Assembly vote. He also had experience with disarmament negotiations, having helped develop the Rapacki Plan in 1960 to make Central Europe a nuclear-free zone.5 The COPUOS Legal Subcommittee was especially conscious that its work related to the ongoing negotiations at the Eighteen-Nation Disarmament Committee. The Legal Subcommittee in fact met in the very same building as the Disarmament Committee in Geneva. Many nations sent the same representatives

66  Noninterference and nuclear weapons to both the Disarmament Committee and the Legal Subcommittee, and the developments in one committee were often noted in the other. Indeed, Lachs was one of the individuals who attended both the Disarmament Committee and the COPUOS Legal Subcommittee meetings.6 The Legal Subcommittee focused on three topics during its session from May to June  1962. The first was a proposal for the adoption of a basic set of legal principles for outer space introduced by the Soviet Union. The second topic was a proposal by the Soviet Union and the United States for the adoption of either a resolution or a treaty governing the rescue and return of astronauts who encounter distress. The final topic, suggested by the United States, was the creation of a working group to draft a treaty on principles of liability in the event of a space vehicle accident. Although other delegates identified other topics of interest, such as the definition of outer space, the subcommittee focused on these written proposals by the superpowers.7 The first topic was the Soviet proposal to adopt its draft Declaration of Basic Principles Governing the Activities of States Pertaining to the Exploration and Use of Outer Space. The Declaration contained nine articles, most of which were uncontroversial. The first four articles contained basic principles that outer space is free for exploration and use by all, that space is not subject to territorial claims, and that international law applies to space. These principles provoked little controversy as they had already been adopted in U.N. Resolution 1721 (XVI). The remaining articles were more problematic. Article 5 proposed to ban the dissemination of propaganda from space. Article 6 suggested that states adopt a duty to engage in international consultations prior to conducting any experiments in space that may interfere with the activities of other states. Article 7 declared that all outer space activities must be “carried out solely and exclusively by states,” effectively banning private enterprise. Article 8 prohibited the use of satellites “for the collection of intelligence information in the territory of foreign states.” The final article, which did not cause any controversy, said that states should render all possible assistance to astronauts in distress.8 The Soviet Union described the Declaration as establishing a broad legal framework for the basic rules of outer space, but not all nations thought the time was right to adopt such a framework. In 1959, the ad hoc COPUOS, which had participation mainly from Western nations only, concluded that a codification of space law was premature. The United States and a few other Western delegates maintained the view of the ad hoc COPUOS and warned that a premature codification of the law could stunt the growth of space activities. The safer option was to begin with specialized topics, such as rescue of astronauts or liability, before proceeding with generally applicable principles. The Soviet Union urged the opposite view that broad principles should be adopted first, then separate agreements would flesh out the principles. For example, one principle in the Soviet draft Declaration was a duty to rescue astronauts in distress. The Soviet Union had also introduced a more specific treaty to provide further details implementing that principle. After some discussion, a majority of the Legal Subcommittee came to support the Soviet view to start with basic principles. This support came not

Noninterference and nuclear weapons 67 only from the Eastern bloc nations but also from American allies and nonaligned nations such as Brazil, Canada, Egypt, Italy, and Japan.9 Differing legal systems, rather than Cold War animus, appears to have been at least partly responsible for the differences of opinion on how to begin drafting space law. Civil law nations, which included the Eastern bloc nations, tended to favor a set of basic legal principles. Such principles were likely more familiar to civil law states, where a code of law contains principles that serve as the primary source of law. This may explain why some civil law nations in the Western camp, such as Italy and Japan, were more receptive to the Soviet proposal. By contrast, the common law nations, which included Australia, the United Kingdom, and the United States, preferred to start with specialized topics that presented an immediate problem, such as rescue or liability. This approach was likely more familiar to the “case law” style approach in common law nations, where judges participate in lawmaking by applying principles or statutes on a case-by-case basis to create precedential decisions. The Polish delegate commented on the difference in the delegates’ legal systems and urged all members to consider both approaches to writing the law of outer space.10 Besides philosophical differences about the approach to develop the law, there were objectionable articles in the Soviet draft Declaration that divided the Legal Subcommittee more clearly along Cold War lines. The objections mainly concerned Articles 5, 6, 7, and 8. These articles proposed to ban propaganda, prohibit private enterprise, require consultations for experiments in space, and outlaw reconnaissance satellites. The United States’ representative, Leonard C. Meeker, described these articles as “essentially a political document” that fired off “a broadside political grapeshot.” Joyce Gutteridge, speaking for the United Kingdom – and the only woman representing a nation at the committee – similarly described the proposals as “in essence political rather than legal.” Australia observed that some of the articles raised matters “plainly within the competence of other bodies, such as the Disarmament Committee,” a view with which Brazil and Sweden agreed. The Soviet Union replied that there was no reason why the Legal Subcommittee could not address a “political” issue because the representatives were both legal experts and political representatives of their nations. Moreover, the only issue reserved for the Disarmament Committee was the question of an overarching ban on the military use of outer space; other topics that were specific to the use of outer space – such as reconnaissance satellites – did not fall within the Disarmament Committee’s exclusive domain.11 The rule of consensus meant that the Legal Subcommittee reached an impasse on the Soviet Union’s proposal for a Declaration of Basic Legal Principles. As a result, the subcommittee turned to the other two topics before it: the rescue and return of astronauts in distress and liability for space vehicle accidents. Of these two topics, an agreement on rescue appeared promising because the Soviet Union and the United States had each submitted a proposal, indicating that the superpowers were at least in agreement on the necessity to develop the law on this subject.12

68  Noninterference and nuclear weapons The main disagreement on rescue and return concerned the form of an agreement. All delegates agreed on the substantive principle that assistance should be given to astronauts in distress and that they should be returned to their home country after an unintentional landing. The issue was whether these principles should be reflected in a treaty or a nonbinding U.N. resolution. The Soviet Union favored a treaty to create a binding obligation in light of the humanitarian nature of the legal principles. The United States favored a U.N. resolution because, in light of the humanitarian nature of the legal principles, there would be no objection and the resolution could be adopted unanimously. An unanimously adopted resolution, though technically not binding, would have the effect of instantly creating customary international law. This had been the approach when the United Nations adopted Resolution 1721 (XVI), which declared that space was not subject to territorial claims and that international law applies. A resolution would have the benefit of avoiding lengthy and complicated ratification process by national legislatures, which would be needed for a treaty. A reasonable compromise, generally supported by other members of the Legal Subcommittee, was to combine the Soviet and American approaches into a twostep process. The first step was to adopt a U.N. resolution unanimously to instantly create customary international law. In parallel, the Legal Subcommittee would draft a more detailed document as a treaty to cover the same topic. Because of the fewer complications involved in passing a U.N. resolution, the United Nations would adopt the resolution later that year, while the treaty would be adopted by states gradually over the next few years.13 The Legal Subcommittee’s last topic was liability for space vehicle accidents. Liability was an issue of particular interest to the United States. An internal State Department memo highlighted incidents in which debris from failed NASA rockets fell on foreign nations. For example, one incident on September  26, 1960, caused debris to land in South Africa, and another incident on November  30, 1960, caused debris to fall over Cuba. The State Department expressed concern that if such an incident caused damage in the future, it could seriously harm the United States’ image and support for the United States’ space program. A liability regime could help address that issue. Any treaty on liability, however, would be complex and the language would have to be technically precise. National legislatures and governments, which would need to adopt the treaty, would need assurances that the liability regime was fair before subjecting themselves to potential liability. Rather than submitting an actual draft treaty, the United States proposed only that the Legal Subcommittee create a panel of legal experts to prepare a draft for the subcommittee’s consideration at a later date.14 As the Legal Subcommittee’s session progressed, it became clear that the delegates needed to choose one topic to focus on. There was not enough time to develop basic principles, rules on rescue, and a treaty on liability all in one session. Rescue and liability appeared to be the most likely topics to gain a consensus. A reasonable compromise had been suggested on rescue to adopt a U.N. resolution and draft a treaty simultaneously. The proposal on liability was also uncontroversial because the United States was suggesting only a procedural step

Noninterference and nuclear weapons 69 to form a panel to draft a treaty and was not submitting a draft for consideration. The Soviet Union also agreed that it “had no objection to such a study of possible damage to foreign States, citizens or institutions as a result of activities in outer space.” Quite abruptly, however, all progress at the Legal Subcommittee stopped. The Soviet Union objected to the compromise on rescue and return and insisted it would accept nothing less than a binding treaty on that topic. Because rescue and return only concerned the two space powers, the rest of the subcommittee shrugged off the Soviet demand and focused on liability instead. This prompted the Soviet Union to complain that the only topic that the subcommittee was willing to discuss was a topic that only the United States had introduced. The situation played into the Soviet Union’s preexisting anxieties about being outmaneuvered and outvoted by a United Nations dominated by the United States and its allies. Although it had not opposed a discussion on liability before, the Soviet Union now argued it was “ludicrous” to discuss liability when basic principles had not been established. The sudden about-face in the Soviet Union’s attitude was due to the collapse of talks in the Eighteen-Nation Disarmament Committee.15

Descent into acrimony Negotiations for a nuclear test ban treaty at the Eighteen-Nation Disarmament Committee reached an impasse. Though the negotiating parties had narrowed their differences considerably, they were unable to agree upon a manner to verify compliance with a ban on underground tests, or even whether such verification was necessary.16 On April  9, 1962, the United States reminded the committee that absent progress, it would soon proceed with atmospheric nuclear tests. The neutral members of the Disarmament Committee attempted to engineer a compromise, but their proposed solutions were simply a vague mishmash of the two sides’ positions and did not help anyone. From that point forward to the end of the Disarmament Committee’s session in mid-June 1962, the committee fell into idle bickering.17 With no evidence of an impending agreement at the Disarmament Committee, the United States began its atmospheric nuclear test series, known as Operation Dominic. The first test occurred on April 25, 1962. Over the next several months, the United States would conduct 40 nuclear tests, much of it in the Pacific Ocean on Christmas Island and Johnston Island.18 Among the tests that the United States planned were a handful of “high-altitude” tests. These tests, some of which were hundreds of kilometers high and more, were really tests in outer space. Unsurprisingly, the Soviet Union condemned the American test series, but the condemnation focused in particular on the handful of high-altitude tests. The Soviet Union warned that the radiation from these tests could interrupt radio communication, change the weather, harm human spaceflight, and threatened to all nations. On June 4, 1962, Soviet representatives read an identical prepared statement denouncing the high-altitude tests in both the Eighteen-Nation Disarmament Committee and the COPUOS Legal Subcommittee.

70  Noninterference and nuclear weapons The Soviet Union’s condemnation at the Legal Subcommittee ended all hope of cooperation at the subcommittee. The bickering at the Disarmament Committee was now mirrored in the Legal Subcommittee. The Soviet statement caused Leonard Meeker to defend the United States’ high-altitude tests by recounting the history of negotiations for a test ban treaty. Each side cast accusations on the other for the end of the unofficial test ban moratorium.19 The Soviet representative then accused the U.N.’s civil servants of bias by asserting that a press release by the U.N. Secretariat had almost exclusively covered the American position on the Legal Subcommittee debate while failing to describe the Soviet Union’s position. The Romanian delegation joined in by complaining that the summary records of the session prepared by the Secretariat lacked objectivity.20 On June 20, 1962, the Legal Subcommittee concluded its session without any concrete progress on the law of outer space. The Soviet Union continued to insist that the subcommittee’s first priority should be an agreement on basic legal principles, setting aside the topics of rescue and liability. Although the majority of the subcommittee was receptive to the idea of basic principles, many of the substantive articles in the Soviet draft Declaration referred to disarmament issues and were nonstarters. Because the subcommittee applied the parent committee’s rule of consensus, no progress could be made on any subject. After the Legal Subcommittee’s session ended, the United States executed its plan to conduct high-altitude nuclear tests. The first test, codenamed Starfish, occurred on July 9, 1962, from the Johnston Atoll. This test launched a nuclear warhead to an altitude of 250 miles, where it detonated. For reference, the International Space Station today orbits around this altitude. Among the goals of this test was research into a possible antimissile system. The hope was that the blast, heat, and radioactivity could destroy incoming missiles, disrupt radio communication, and interfere with guidance systems. The electromagnetic pulse generated by the test was so powerful that it caused electrical damage in Hawaii, nearly 900 miles away from the test.21 The Soviet Union condemned the test and claimed that it interfered with the use of outer space by endangering the lives of its cosmonauts. Around the time of the Starfish test, the Soviet Union was planning to launch the first multi-spacecraft mission with Vostok 3 and 4. After the Starfish test, the Soviet Union tasked two satellites, Kosmos-3 and Kosmos-5, to fly through the radiation cloud from the blast. The data collected by the satellites indicated there would be no harm to astronauts so long as a manned flight avoided the area for three to five days. Because Vostok 3 would not launch until August 11, 1962, over a month after the test, there was no real danger. Nevertheless, the Soviet Union sent a diplomatic note prior to the launch asking the United States to refrain from testing in space during its manned mission. The United States publicly responded that it did not plan any tests and would not interfere with the mission.22 The United States eventually acknowledged that the Starfish test had caused interference with the activities of other states. On September 1, 1962, the United States issued a statement admitting that the nuclear blast interfered with radio astronomy and radio communication, though the disruption would subside. The

Noninterference and nuclear weapons 71 explosion also created a new radiation belt in orbit that may last for years, though the belt was above the planned altitude for manned spaceflight. The most significant admission was that the test had damaged three satellites, two U.S. Navy navigation satellites, and the United Kingdom’s Ariel 1. Coincidentally, the members of the COPUOS were familiar with Ariel 1 after attending the initial failed attempt to launch this satellite. The damage to Ariel 1 was rather embarrassing as scientists from the United Kingdom had been especially vocal about the danger presented by the American high-altitude test. Though the United States publicly defended the tests, in private there was a quiet acknowledgment that the tests should be scaled back. On September 5, 1962, President Kennedy ordered that future tests be rescheduled to avoid interference and that researchers reconsider whether they needed all the atmospheric tests scheduled. One test named Urraca, which planned to detonate a nuclear bomb at an altitude of over 800 miles, was canceled altogether.23

The principle of noninterference When the COPUOS convened in New York on September 10, 1962, to finalize its report before the start of the U.N. General Assembly session, the United States’ Starfish test was a hot topic. The United States had admitted just 10 days earlier that the test had interfered with the activities of other states and damaged a foreign satellite. The Soviet Union argued that the United States’ nuclear test demonstrated the need for a set of basic legal principles, such as the Declaration that it had submitted to the Legal Subcommittee. In fact, one article of the draft specifically required states to engage in international consultations before engaging in outer space experiments that could interfere with the use of space by other nations. The atmosphere of the COPUOS at the opening of its session, however, was as uncooperative and vitriolic as the atmosphere of the Legal Subcommittee when it ended a few months earlier. The COPUOS had only four days to conclude its work, and the committee spent the entire first day debating an asinine issue regarding the order of the committee’s agenda. In short, the Soviet Union wanted to rearrange the agenda to discuss the work of the Legal Subcommittee before the Technical Subcommittee so that the COPUOS could discuss its draft Declaration. The United States wanted to keep the agenda as-is because the work of the Technical Subcommittee was uncontroversial and could be addressed quickly. Moreover, there were positive events to report in terms of technical cooperation. The talks for cooperation that President Kennedy and Premier Khrushchev had discussed at the beginning of the year had borne fruit in the form of a joint memorandum on cooperation in outer space between NASA Deputy Administrator Hugh L. Dryden and the Soviet Academy of Science’s Anatoli Blagonravov. Eventually, the Soviet Union got the discussion that it demanded on its draft Declaration, and the COPUOS went through an article-by-article debate of the Soviet submission.24 The COPUOS discussion reaffirmed that the problem with the Soviet proposal was the substance of Articles 5, 6, 7, and 8. Articles 5 and 8 were disagreeable

72  Noninterference and nuclear weapons because they touched on matters of disarmament; one article sought to ban propaganda from outer space while the other prohibited the use of reconnaissance satellites. Article 7, which effectively banned private enterprise in space by requiring that space activities be “carried out solely and exclusively by states,” was a nonstarter to the West. On Article 6, however, which sought to prevent states from interfering with one another’s use of outer space, there was some progress and substantive discussion in light of the United States’ recent nuclear test in orbit. Specifically, Article 6 provided that any experiment in space that could “hinder the exploration or use of outer space for peaceful purposes by other countries shall be permitted only after prior discussion of and agreement upon such measures between the countries concerned.” The Soviet Union had originally proposed the principle of noninterference in Article 6 in response to the United States’ West Ford Project. The West Ford Project was an experiment that the U.S. Air Force first attempted on October  21, 1961, just a few months before the COPUOS convened for the first time. The experiment planned to release 110 pounds of dipoles, or copper strips, to create a 30-mile orbital belt consisting of approximately 350 million shimmering pieces of copper. The purpose was to determine whether these strips could reflect radio signals to allow communication with the north and south poles. As it turned out, the first attempt at the experiment was a failure because the dipoles failed to disperse properly. The West Ford Project caused general international consternation. The scientific community, in particular, warned of potential interference with other areas of scientific research, such as optical and radio astronomy. The experiment led scientific organizations such as the Committee on Space Research, the International Scientific Radio Union, and the International Astronomical Union to call for international consultations prior to performing experiments that could interfere with research in other scientific fields. The Soviet Union adopted the position of the scientific community and proposed that the duty to consult should be turned into a formal legal duty. In fact, this was one of the few specific proposals that Premier Khrushchev had suggested to President Kennedy on March 20, 1962, as part of their friendly exchange of letters seeking cooperation in outer space. Premier Khrushchev had suggested that “it should be stipulated that those experiments in space that might complicate space research by other countries should be the subject of preliminary discussion and agreement on an appropriate international basis.” The United States was not entirely opposed to the idea that consultations should take place to prevent interference of the use of outer space by different states. Deputy U.S. Ambassador to the United Nations Francis Plimpton, who gave his name to the international law firm Debevoise & Plimpton, explained to the COPUOS that states were already consulting with one another as a general matter through the Committee on Space Research, or COSPAR, before conducting experiments. COSPAR had been established by the International Council of Scientific Unions, the same body that organized the International Geophysical Year, to coordinate international space research. The United States agreed to consult with COSPAR before making another attempt at the West Ford Project.

Noninterference and nuclear weapons  73 The United States’ detonation of a nuclear bomb in space, however, complicated the adoption of a duty to consult to prevent interference in the use of outer space. Nuclear testing in space would clearly be subject to the proposed duty to consult because such tests can cause interference with the use of outer space; the United States admitted that the Starfish test had caused interference just before the COPUOS met. As explained by the Soviet representative to the COPUOS, Article 6 of the Soviet Union’s draft Declaration would make it “impossible without prior discussion and agreement of other countries” any “high altitude tests” or “sending millions or billions of needles into outer space.” Because Article 6 would require “discussion and agreement” prior to conducting a nuclear test, adopting the principle could effectively equate to a ban on nuclear testing in space. Although the Soviet representative claimed the proposal “does not concern the problem of banning nuclear tests” under negotiation at the Eighteen-Nation Disarmament Committee, the topics were plainly related, and the Western delegations objected that this topic fell under the purview of the Disarmament Committee. Even setting aside the implications for disarmament, Article 6 of the Soviet draft Declaration faced problems in terms of how the duty to consult would be implemented in practice. The Soviet proposal would require “prior discussion of and agreement upon” an experiment in space “by countries concerned.” France warned that, as written, the principle could be easily abused. A state which had no real interest in an experiment could create controversy by claiming to be a country concerned, a term that was not defined, then block “national or international programs on scientific pretexts.” Thus, the COPUOS spent its time addressing two questions with respect to the implementation of Article 6: (1) with whom should international consultations be conducted, and (2) whether an experiment could proceed if consultations did not resolve concerns. On the first issue, the COPUOS reached a consensus that engaging in consultations with COSPAR was one way of discharging the duty to consult. COSPAR had the necessary expertise. In 1958, after Sputnik, the International Council of Scientific Unions created the Committee on Contamination by Extraterrestrial Exploration, or CETEX, to consider the dangers posed by early space experiments. The Council later combined CETEX with COSPAR to have a single committee generally responsible for space research. In April 1962, partly in response to the West Ford Project, COSPAR established the Consultative Group on Potentially Harmful Effects of Space Experiments to specifically discuss potentially harmful experiments in space. In light of this background, the COPUOS was in general agreement that consultation with COSPAR was appropriate. The United States had already agreed to consult COSPAR in advance of another attempt at the West Ford Project. Professor Anatoli Blagonravov, the Soviet representative at the COSPAR, even spoke at the COPUOS to specifically say that COSPAR was ready to act as a consultative service on potentially harmful experiments. Australia proposed that Article 6 of the Soviet proposal be amended to specifically refer to consultation to COSPAR as a requirement, though this was not adopted. The COPUOS was unable to agree on the second issue, whether a space experiment could proceed if consultations did not resolve concerns of interference.

74  Noninterference and nuclear weapons States such as Brazil, France, Peru, and the United States rejected the idea that one nation could veto another nation’s space experiment. The Soviet proposal appeared to do just that by stating that an experiment could not proceed without “prior discussion and agreement.” At first, the Soviet Union denied that it was proposing a right of veto on experiments. “It does not speak of any veto right.” But as the debate progressed, the Soviet Union embraced the idea, saying that an experiment should not be permitted unless other countries were “convinced of the fact that what you do in outer space will not be harmful and agree to it.” Czechoslovakia, supporting its Soviet ally, was even more explicit, stating, “every State in the world and the international community as a whole has the right of veto over actions of a certain State.”25 On September 14, 1962, the COPUOS concluded without making any progress on the law of outer space. Opposing sides of the Cold War blamed one another for this failure. Poland, for example, said the committee had deadlocked only because of the United States’ “regrettable intransigence.” Belgium and France argued that the COPUOS made no progress only because of the Soviet Union’s “categorical insistency” to discuss its Declaration of Basic Principles rather than another topic which had a consensus, such as rescue or liability. Ambassador Plimpton tried to dramatically drive this point home on the committee’s last day by showcasing a 14-pound satellite fragment that landed in the middle of a street in Manitowoc, Wisconsin, on September 5, 1962, a few days before the COPUOS met. Ambassador Plimpton argued that this fragment, which came from the Soviet spacecraft Korabl-Sputnik 1, demonstrated the urgent need to address the concrete problem of liability, rather than theoretical basic legal principles.26

Limitations on nuclear weapons The year 1962 appeared set to close without any progress on disarmament or the peaceful uses of outer space. The Eighteen-Nation Disarmament Committee was deadlocked on nuclear test ban treaty. The COPUOS could not reach a consensus on the development of the law, and some of its topics appeared to be dependent on a resolution of disarmament issues first. A month after the COPUOS session ended, however, a global near-death experience changed the course of history and the Cold War. The Cuban Missile Crisis began on October 14, 1962. An American U-2 flight over Cuba on this day spotted the Soviet Union installing SS-4 missiles, which could strike Washington, D.C., and half of all airbases in the U.S. Strategic Air Command. Analysis of the photographic evidence was sent to President Kennedy two days later. The Kennedy Administration developed four options in response. First, the United States could invade Cuba. Mobilization orders were sent to prepare for this option, but it had obvious drawbacks in terms of lives, cost, and the international response that it would provoke. Second, the United States could launch a sneak attack to bomb the missile sites, but this had no guarantee of success and would certainly provoke a response. Third, an appeal could be made to the international community, but this option likely would have no immediate

Noninterference and nuclear weapons 75 effect. Finally, the United States could implement a naval blockade to prevent further equipment from arriving in Cuba. For legal reasons, it was called a “quarantine” because a blockade is an act of war. President Kennedy decided to proceed with a combination of the last two options. The navy began implementing a blockade while the United States appealed to the international community. On October 22, 1962, President Kennedy told the American public of the presence of Soviet missiles in Cuba and that a quarantine was being implemented. He also announced the policy that any missile attack from Cuba upon any nation in the Western Hemisphere would be treated as an attack by the Soviet Union. The U.N. Security Council convened the next day. Much to the surprise of the Kennedy Administration, the international community rallied to the United States. The Organization of American States unanimously supported the quarantine. Guinea and Senegal, the only refueling points for Soviet aircraft headed to Cuba, denied landing rights to the Soviet Union. On October  25, 1962, the international community’s support for the United States was on full display during one of the most memorable Security Council meetings in history. One after another, nations yielded their time to U.S. Ambassador Adlai Stevenson so he could present the American position on the unfolding crisis. Like a dogged prosecutor, he repeatedly asked Soviet Ambassador Valerian Zorin whether or not the Soviet Union was installing missiles in Cuba. When Ambassador Zorin refused to answer, Ambassador Stevenson demanded, “Don’t wait for the translations, answer ‘yes or no.’ ” This received some chuckles; Ambassador Zorin did not need a translator. Ambassador Zorin replied that he was “not in an American courtroom.” Ambassador Stevenson rejoindered, “You are in the courtroom of world opinion right now.” After repeated demurrers, Ambassador Stevenson’s staff entered the room and placed large photographs from U-2 flights on easels for all to see. The evidence showed that the Soviet Union had been lying to the world. The crisis was coming to a head on October  27, 1962, as Soviet vessels approached the American quarantine line. The Soviet embassy in New York began burning documents, a clear sign that they were preparing for war. The State Department signaled its own embassies in Berlin, Turkey, and Iran to prepare for the worst. Tensions rose further when a U-2 was downed over Cuba, and President Kennedy ordered a retaliatory strike and fighter cover for future flights. The U.S. Strategic Air Command was on full alert. The Air Force broadcasted in the clear, making its intentions fully known. The Army activated reserves to reinforce Europe. An invasion force was amassing in Florida in anticipation of landings in Cuba. In the background, negotiations quietly resolved the crisis. President Kennedy had received two inconsistent messages from Premier Khrushchev offering to end the dilemma. The first message offered to withdraw the missiles for a promise not to invade Cuba. The second message also demanded the removal of American missiles in Turkey. Officially, President Kennedy accepted the conditions in the first message. Privately, President Kennedy gave assurances that the missiles in

76  Noninterference and nuclear weapons Turkey would be removed at a later date. With this agreement, Soviet vessels turned around. The crisis ended.27 In the aftermath of the Cuban Missile Crisis, President Kennedy and Premier Khrushchev sought to reduce tensions. Both knew how close they had come to nuclear Armageddon. The most obvious way to reduce tensions was to reach some sort of agreement on disarmament. On November  26, 1962, a month after the crisis ended, the Eighteen-Nation Disarmament Committee resumed negotiations for a nuclear test ban treaty. In the meantime, the United States announced new policies to limit the Cold War in outer space. On December 3, 1962, Senator Albert Gore, Sr., gave the single most important speech ever in terms of influence on the subsequent development of space law to the First Committee of the U.N. General Assembly. Speaking on behalf of the United States, Senator Gore announced three new American policies on outer space that would come to be enshrined in two unanimously adopted U.N. resolutions and the Outer Space Treaty. First, the United States would avoid aggression in outer space. Second, the United States would not place nuclear weapons in outer space. Third, the United States would avoid experiments in outer space that could interfere with the use of space by other nations. The first two policies were unilateral disarmament measures. Senator Gore emphasized that the policy of nonaggression was a commitment not to use space for aggressive purposes and not a policy to avoid the military use of space altogether. He explained that there was no dividing line between peaceful and military activities. Navigation satellites could guide merchant ships and warships. Weather satellites could study meteorology and photograph military facilities. All astronauts at that point in history were members of the armed forces. A total ban on military activities could be achieved only if there was complete disarmament on the earth. The United States’ promise was simply not to expand the nature of military activities in space to include aggression. From this position naturally flowed the policy not to place nuclear weapons in orbit. The final policy to avoid experiments that could interfere with the use of space by other nations was in response to the Soviet Union’s demand for a principle of noninterference at the COPUOS. Senator Gore agreed that in principle states “should take all reasonable steps to avoid experiments or other activities which seriously threaten to deny or limit the use of outer space to other nations.” The United States viewed this principle as part of and “consistent with well-established principles of international law.” This latter statement was critical. The United States was not proposing a legal principle for adoption or simply announcing a policy; it was saying that existing customary international law imposed a binding duty on all states to avoid interference, even in the absence of the adoption of the Soviet Union’s proposed Declaration of Basic Principles for outer space. There were three important caveats to the United States’ view of noninterference. First, the principle requires international consultations before conducting an experiment, but only to the extent consistent with national security. Second, no state could veto another nation’s experiment. The United States would do its best to address the concerns expressed in international consultations, but it could

Noninterference and nuclear weapons 77 proceed with experiments even if concerns remained. Finally, while “it is the policy of the United States to bring a halt to the testing of nuclear weapons in outer space,” the principle of noninterference does not apply to nuclear testing. That was an issue that had to be resolved in the context of disarmament negotiations. Senator Gore’s speech breathed life back into the effort to cooperate in the peaceful uses of outer space. On December 5, 1962, a few days after the speech, the Soviet Union and the United States announced the Blagonravov-Dryden Agreement that documented areas of cooperation in space between NASA and the Soviet Academy of Sciences. Though the agreement had been reached months earlier, it had not been announced during the COPUOS session amidst the acrimony on legal principles for outer space, and then cooperation was suspended during the Cuban Missile Crisis. The First Committee also reached an agreement to resume the COPUOS discussions the following year. Although the United States and other Western delegations still preferred that the COPUOS address specialized legal topics such as rescue and return or liability, the committee was moving toward a consensus to discuss the Soviet Union’s proposal for basic legal principles. The United Kingdom and the United States, for example, submitted their own drafts for basic principles during the First Committee’s session for discussion at the COPUOS’s next session.28 With cooperation in the peaceful uses of outer space resuming, eyes turned back to the related matter of disarmament. The Eighteen-Nation Disarmament Committee resumed its discussions on February 12, 1963, and the focus returned to a nuclear test ban treaty. But shortly after negotiations resumed, the parties were deadlocked again on the problem of verification. In March, the United Kingdom brokered a new way forward by proposing to resume negotiations through direct emissaries rather than through the Eighteen-Nation Disarmament Committee. By cutting away levels of bureaucracy in the policymaking process, each side might better understand the other’s position and reach an agreement. The Soviet Union and the United States agreed to meet in Moscow that July. Before the emissaries met in Moscow, President Kennedy gave another one of his memorable speeches that set a positive tone for the talks. On June 10, 1963, he told graduating students at American University about his views on world peace: What kind of peace do I mean? What kind of peace do we seek? Not a Pax Americana enforced on the world by American weapons of war. Not the peace of the grave or the security of the slave. I am talking about genuine peace, the kind of peace that makes life on earth worth living, the kind that enables men and nations to grow and to hope and to build a better life for their children – not merely peace for Americans but peace for all men and women – not merely peace in our time but peace for all time. He then spoke of the nation’s relationship with the Soviet Union. Peace might be achieved if the Soviet Union had “a more enlightened attitude,” but Americans should also reexamine their own preconceptions. While communism was “repugnant as a negation of personal freedom and dignity” to Americans, “[n]

78  Noninterference and nuclear weapons o government or social system is so evil that its people must be considered as lacking in virtue.” For example, the Soviet Union had made enormous sacrifices during the Second World War in the fight against Nazism. At “least 20 million lost their lives. Countless millions of homes and farms were burned or sacked. A third of the nation’s territory, including nearly two-thirds of its industrial base, was turned into a wasteland – a loss equivalent to the devastation of this country east of Chicago.” President Kennedy asked Americans to recognize that the Soviets were not so different. “[I]n the final analysis, our most basic common link is that we all inhabit this small planet, we all breathe the same air. We all cherish our children’s future. And we are all mortal.” He then noted the forthcoming talks for a nuclear test ban treaty in Moscow and announced “that the United States does not propose to conduct nuclear tests in the atmosphere so long as other states do not do so. We will not be the first to resume.” The domestic reception to President Kennedy’s speech was rather muted at the time, but in the Soviet Union, the impact was profound. For the first time in 15 years, the Soviet Union stopped jamming Voice of America broadcasts. It allowed President Kennedy’s speech to be reproduced in full, even though it criticized the Soviet Union. A few weeks later, on June 20, 1963, the Soviet Union sent its own positive signal by allowing the International Atomic Energy Agency to inspect its nuclear power facilities for the first time.29 On July 15, 1963, emissaries from the Soviet Union, the United Kingdom, and the United States met in Moscow to resume negotiations for the nuclear test ban treaty for the last time. The parties agreed that a comprehensive nuclear test ban treaty was likely not possible. The problem with a comprehensive ban was the lack of reliable and cost-effective means to verify compliance with the ban on underground nuclear tests. Lloyd v. Berkner, the same Berkner who helped organize the International Geophysical Year, led a team of seismologists who concluded that underground nuclear tests could be hidden by “decoupling.” Decoupling was shorthand for a test in an underground chamber, which “decouples” the blast from the surrounding the earth, making it difficult to distinguish the blast from routine, low-level earthquakes on a seismograph. The solution was to simply not address underground nuclear tests in the proposed treaty. The negotiators now focused on a limited nuclear test ban treaty that addressed nuclear tests only in the atmosphere, underwater, and in outer space. A test in these environments could be easily detected without the need for inspections or costly observation posts. This idea for a limited test ban was not new. Indeed, Senator Gore, Sr., had proposed a limited test ban as early as 1958. The United Kingdom and the United States had explored this option with the Soviet Union in 1962, though the Soviet Union rejected it at the time. Now, however, the Soviet Union introduced a proposal that was virtually identical to what the United Kingdom and the United States had previously proposed. On July  25, 1963, the Soviet Union, the United Kingdom, and the United States announced an agreement on a Treaty Banning Nuclear Weapon Tests in

Noninterference and nuclear weapons 79 the Atmosphere, in Outer Space, and Under Water. This was the first concrete result of disarmament negotiations since the end of the Second World War. It would become the first of many arms control measures adopted throughout the Cold War.30 After this breakthrough in disarmament, the Soviet Union sought to take advantage of the moment to further improve relations with the United States with additional agreements. On August  26, 1963, just a month after signing the limited test ban treaty. Soviet Ambassador Anatoli Dobrynin delivered a letter from Premier Khrushchev to President Kennedy at the White House. In the letter, Premier Khrushchev stated that the limited test ban treaty should simply be the first step toward greater cooperation. President Kennedy and Ambassador Dobrynin discussed areas of potential cooperation. In the aftermath of the meeting, U.S. Ambassador-at-Large Llewellyn Thompson, recently ambassador to the Soviet Union, gave the assessment that the Soviets were “looking for an agreement on almost anything.” The conclusion seemed confirmed a few weeks later when Soviet Foreign Minister Andrei Gromyko repeated an interest in further cooperation to the U.S. Ambassador.31 An agreement to ban the stationing of nuclear weapons in space became the next focus of attention because it was a low-hanging fruit. The Soviet Union and the United States had each made statements in the past agreeing to refrain from stationing nuclear weapons in orbit. Proposals to ban nuclear weapons in space had been made several times at the Eighteen-Nation Disarmament Committee, but the Soviet Union had rejected it each time. On June 21, 1963, Mexico proposed a ban on nuclear weapons in space again, though there was no movement on this proposal until after the Soviet Union, the United Kingdom, and the United States signed the limited test ban treaty a month later. On October  17, 1963, Mexico resubmitted the proposal as a draft resolution to the U.N. General Assembly on behalf of the Eighteen-Nation Disarmament Committee. The resolution called upon states to “refrain from placing in orbit around the earth any objects carrying nuclear weapons or any kinds of weapons of mass destruction, installing such weapons on celestial bodies, or stationing such weapons in outer space in any manner.” The United Nations adopted the resolution by acclamation as Resolution 1884 (XVIII).32 With the Soviet Union now actively seeking agreements with the United States, Leonard C. Meeker, who represented the United States at the COPUOS Legal Subcommittee, urged that the United States engage with the Soviet proposal for a set of basic legal principles. He noted that the Soviet Union was already taking a less hostile tone and might be receptive to compromise. Moreover, other nations at the COPUOS were becoming sympathetic to the Soviet position, and if the United States did not engage, the international community could move ahead to adopt legal principles that hurt the United States’ interests. On July 26, 1963, three days after the signing of the limited test ban treaty, the United States followed through on Meeker’s proposal by offering bilateral talks with the Soviet Union on a set of basic legal principles for outer space.33

80  Noninterference and nuclear weapons

Notes 1 U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5109 (30 March  1962), 2; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5181 (27 September 1962), 6; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.1–3, 6 (28–30 May, 6 June 1962), Statements by Lebanon, Mexico, Poland, Sierra Leone, and Soviet Union; Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–1974 (Washington, DC: NASA, 2000), 351–355; Nikita Khrushchev, Letter from Chairman Khrushchev to President Kennedy, 21 February  1962, available at https://history.state.gov/historicaldocuments/frus1961-63v06/d35; John F. Kennedy, Telegram from the Department of State to the Embassy in the Soviet Union, 21 February  1962, available at https://history.state.gov/historicaldocuments/ frus1961-63v06/d36; John F. Kennedy, Letter from President Kennedy to Chairman Khrushchev, 7 March  1962, available at https://history.state.gov/historicaldocuments/frus1961-63v06/d41; Nikita Khrushchev, Letter from Chairman Khrushchev to President Kennedy, 20 March  1962, available at https://history.state.gov/historicaldocuments/frus1961-63v06/d43; U.N. COPUOS, Letter Dated 19 March  1962 from the Deputy Permanent Representative of the United States of America to the United Nations Addressed to the Acting Secretary-General, U.N. Doc. A/AC.105/1 (19 March 1962); U.N. COPUOS, Letter Dated 21 March 1962 from the Deputy Permanent Representative of the Union of Soviet Socialist Republics Addressed to the Acting Secretary-General, U.N. Doc. A/AC.105/2 (21 March 1962); Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 142–144; Eighteen-Nation Committee on Disarmament, Final Verbatim Records, U.N. Docs. ENDC/PV.4, 5, 10 (19–20 March 1962, 27 March 1962), Statements by Canada, Mexico, Sweden, United Kingdom, and United States, available at https:// quod.lib.umich.edu/e/endc/; United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 3–5, 175, 207, available at www.un.org/ disarmament/publications/yearbook/volume-1945-1970/. 2 Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 120–122, 138–144; Eighteen-Nation Committee on Disarmament, Final Verbatim Records, U.N. Docs. ENDC/PV.1, 2, 5, 8, 10, 20 (14 March, 20 March, 23 March, 27 March, 13 April 1962), Statements by Canada, Italy, India, Romania, Soviet Union, Sweden, and United States, available at https://quod.lib. umich.edu/e/endc/; United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 84, 215–218, available at www.un.org/disarma ment/publications/yearbook/volume-1945-1970/; United Nations, General Assembly Resolution 1649 (XVI), The Urgent Need for a Treaty to Ban Nuclear Weapons Tests Under Effective International Control, A/RES/1649(XVI) (8 November 1961). 3 U.N. First Committee, 14th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1079 (11 December  1959), Election of Chairman; Martin Walker, The Cold War: A  History (New York: Henry Holt and Company, 1993), 104; Eric Solsten, ed., Austria: A Country Study (Washington, DC: GPO for the Library of Congress, 1994), The 1955 State Treaty and Austrian Neutrality, available at http://countrystudies.us/austria/; U.S. State Department, “Austrian State Treaty, 1955,” available at https://2001-2009.state. gov/r/pa/ho/time/lw/107185.htm (20 January 2009). 4 U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5109 (30 March 1962), 1–3; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5181 (27 September 1962), 2; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.1 (28 May  1962), Statement by Romania; U.N. COPUOS. Verbatim Records. U.N. Docs. A/AC.105/PV.61–67 (8–15 September 1969), 234; Vladimir Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including

Noninterference and nuclear weapons 81

5

6

7

8

9

10

11

the Moon and Other Celestial Bodies (U.N. Audio Visual Library of International Law), available at https://legal.un.org/avl/ha/tos/tos.html; U.N. COPUOS Legal SubCommittee, Report of the Legal Sub-Committee on the Work of Its First Session (28 May– 20 June 1962), U.N. Doc. A/AC.105/6 (9 July 1962), 2. U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.1 (28 May  1962); Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Leiden: Matinus Nijhoff, 2010), ix–x; United Nations. General Assembly Resolution 174 (II), Statute of the International Law Commission, A/504 (21 November 1947), Arts. 2–4. U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.2 (29 May 1962), 1–2; Eighteen-Nation Committee on Disarmament, Final Verbatim Records, U.N. Docs. ENDC/PV.10, 37, 133 (27 March 1962, 15 May 1962, 17 May  1963), Statements by Canada, Poland, and United States, available at https:// quod.lib.umich.edu/e/endc/; U.N. COPUOS, Interim Report of the Bureau on the Organization of the Work of the Committee in 1964, A/AC.105/16 (6 February 1964). U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its First Session (28 May–20 June 1962), U.N. Doc. A/AC.105/6 (9 July 1962); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.2–4 (29–30 May, 4 June 1962), Statements by Argentina, Australia, Italy, and Romania. U.N. COPUOS, Union of Soviet Socialist Republics: Draft Declaration of the Basic Principles Governing the Activities of States Pertaining to the Exploration and Use of Outer Space, U.N. Doc. A/AC.105/L.2 (10 September 1962); U.N. GAOR, USSR Proposal: Declaration of the Basic Principles Governing Activities of States Pertaining the Exploration and Use of Outer Space, U.N. Doc. A/AC.105/C.2/L.1 (6 June 1962). U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.1–7, 9, 13–14 (28–30 May, 4–7, 12, 18–19 June 1962), Statements by Argentina, Austria, Brazil, Canada, Czechoslovakia, Italy, India, Japan, Lebanon, Mexico, Romania, Sierra Leone, Soviet Union, Sweden, United Kingdom, and United States; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its First Session (28 May–20 June  1962), U.N. Doc. A/AC.105/6 (9 July  1962); U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1293 (6 December 1962), 22 (Netherlands); Vladimir Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including the Moon and Other Celestial Bodies (U.N. Audio Visual Library of International Law), available at https://legal.un.org/avl/ha/tos/tos.html. U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.2, 4–7, 9, 11 (29 May  1962, 4 June  1962, 5–7 June  1962, 12 June  1962, 14 June  1962), Statements by Canada, Czechoslovakia, Egypt, Italy, Japan, Mongolia, Poland, Romania, and Soviet Union. See also U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space. U.N. Doc. A/4141 (14 July 1959) at 22–23; U.N. Ad Hoc COPUOS, Summary Records. U.N. Docs. A/ AC.98/C.2/SR.2–4 (27–29 May  1959), Statements by Chairman, Australia, France, Italy, Mexico, and United States; U.N. Ad Hoc COPUOS, Draft Report of the Working Group. U.N. Doc. A/AC.98/C.2/WP.5 (4 June 1969), 1–2; Delbert R. Terrill, Jr., The Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 35. Vladimir Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including the Moon and Other Celestial Bodies (U.N. Audio Visual Library of International Law), available at https://legal.un.org/avl/ha/tos/ tos.html; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/ AC.105/C.2/SR.4, 7–11, 13 (4, 7–8, 12–14, 18 June  1962), Statement by Australia, Brazil, Bulgaria, Canada, Czechoslovakia, Japan, Poland, Romania, Sweden, United Kingdom, United States; U.N. COPUOS, Verbatim Records. U.N. Docs. A/AC.105/ PV.13 (13 September 1962), 21 (Brazil).

82  Noninterference and nuclear weapons 12 U.N. COPUOS, Union of Soviet Socialist Republics: Draft International Agreement on the Rescue of Astronauts and Spaceships Making Emergency Landings, U.N. Doc. A/AC.105/L.3 (10 September 1962); U.N. COPUOS, United States of America: Draft Proposal on Assistance and Return of Space Vehicles and Personnel, U.N. Doc. A/ AC.105/L.4 (11 September 1962). 13 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.1–7, 9–11 (28–30 May, 4–7, 12–14 June  1962), Statement by Australia, Brazil, Bulgaria, Czechoslovakia, Egypt, France, Hungary, Italy, Mongolia, Romania, Sierra Leone, Soviet Union, United Kingdom, and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.10, 13 (10, 13 September 1962), Statement by France and the Soviet Union. 14 Richard Hennes, Hazardous Launch Trajectories, 7 April 1961, available at https:// history.state.gov/historicaldocuments/frus1961-63v25/d360; U.N. COPUOS, United States of America: Draft Proposal on Liability for Space Vehicle Accidents, U.N. Doc. A/AC.105/L.5 (11 September 1962); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.1 (28 May 1962), 9 (United States). 15 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.1, 5, 7, 13–14 (28 May, 5 June, 7 June, 18–19 June 1962), Statements by Albania, Australia, Brazil, Canada, Czechoslovakia, Mexico, Soviet Union, and United States; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its First Session (28 May–20 June 1962), U.N. Doc. A/AC.105/6 (9 July 1962), 8. 16 Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 143–144; Eighteen-Nation Committee on Disarmament, Final Verbatim Records, U.N. Docs. ENDC/PV.13 (2 April  1962), 10–28 (United States), available at https://quod.lib.umich.edu/e/endc/. 17 Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 148–149, 161; Eighteen-Nation Committee on Disarmament, Final Verbatim Records, U.N. Docs. ENDC/PV.14, 18, 20, 48 (3 April, 13 April, 11 April, 4 June 1962), Statements by Brazil, Czechoslovakia, Soviet Union, and United States, available at https://quod.lib.umich.edu/e/endc/. 18 Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 123–125, 150. 19 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.4 (4 June 1962), Statements by Brazil, Italy, Sierra Leone, Soviet Union, United Kingdom, and United States; Eighteen-Nation Committee on Disarmament, Final Verbatim Records, U.N. Docs. ENDC/PV.48 (4 June 1962), 5–9, available at https://quod. lib.umich.edu/e/endc/; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/ PV.12 (12 September 1962), 12–16 (Canada). 20 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.8 (8 June 1962), 2–4. 21 Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 155–156, 162; Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 136–149; Gleason, S. Everett, Memorandum of Discussion at the 357th Meeting of the National Security Council, Washington, March 6, 1958, 6 March 1958, available at https://history.state.gov/historicaldocuments/frus1958-60v02/d437; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.4 (4 June 1962), Statements by Romania and Soviet Union. 22 Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945– 1974 (Washington, DC: NASA, 2000), 355, 357, 363; Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 156; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.10–11 (10–11 September 1962), Statements by Romania and Soviet Union.

Noninterference and nuclear weapons  83 23 Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 157–158; Harrie Massey and M.O. Robbins, History of British Space Science (Cambridge: Cambridge University Press, 1986), 82–88. 24 Vladimir Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including the Moon and Other Celestial Bodies (U.N. Audio Visual Library of International Law), available at https://legal.un.org/avl/ha/tos/tos. html; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5181 (27 September  1962); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.10, 12, 15 (10, 12, 14 September 1962), Statements by Bulgaria, Czechoslovakia, Egypt, Lebanon, Poland, Soviet Union, and United States; Edward Clinton Ezell and Linda Neuman Ezell, The Partnership: A History of the Apollo-Soyuz Test Project (Mineola, NY: Dover Publications, Inc., 2010), 42–49; Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–1974 (Washington, DC: NASA, 2000), 65, 283–284, 515; George W. Ball, Bilateral Talks Concerning US-USSR in Outer Space Activities, 5 July 1962, available at https://history.state.gov/ historicaldocuments/frus1961-63v25/d392; U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1292, 1294 (5, 7 December 1962), Statements by Soviet Union, Ukraine, and United States; U.N. GAOR, Letter Dated 22 August 1963 from the Permanent Representatives of the Union of Soviet Socialist Republics and the United States of America to the United Nations, Addressed to the Secretary-General, U.N. Doc. A/5482 (26 August 1963). 25 U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.10–13, 15–16 (10–14 September  1962), Statements by Albania, Czechoslovakia, France, Poland, Soviet Union, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.4–10 (4–13 June  1962), Statements by Albania, Australia, Brazil, Bulgaria, Canada, Czechoslovakia, France, Soviet Union, United Kingdom, and United States; U.N. First Committee, 16th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1210–1213 (4–7 December 1961), Statements by Byelorussia, Hungary, Poland and Soviet Union; U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1290, 1294 (4, 7 December  1962), Statements by Australia, India, and Peru; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.22 (13 September 1963), 23 (Soviet Union); Charles R. Phillips, The Planetary Quarantine Program: Quarantines and Achievements, 1956–1973 (Washington, DC: NASA, 1974), Chapter  1, available at https://history.nasa.gov/SP-4902/sp4902.htm; Delbert R. Terrill, Jr., The Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 53–56; Nikita Khrushchev, Letter from Chairman Khrushchev to President Kennedy, 20 March 1962, available at https://history. state.gov/historicaldocuments/frus1961-63v06/d43; U.N. Ad Hoc COPUOS, Report Under Paragraph 1(d) of the General Assembly Resolution 1348(XIII) (Working Paper Submitted by the Delegation of the United States), U.N. Doc. A/AC.98/L.7 (27 May 1959), Mexico; U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4141 (14 July 1959), 4–5; U.N. COPUOS, Union of Soviet Socialist Republics: Draft Declaration of Basic Principles Governing the Activities of States in the Exploration and Use of Outer Space, U.N. Doc. A/ AC.105/C.2/L.6 (17 April 1963); U.N. COPUOS, Verbatim Records, U.N. Docs. A/ AC.105/PV.20–22 (9–13 September 1963), Statements by Australia, Austria, Canada, COSPAR, Soviet Union, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.17–24, 27–28 (17–18, 22–25, 29 April, 2–3 May 1963), Statement by Australia, Canada, Czechoslovakia, India, Japan, Poland, Romania, Soviet Union, United Kingdom, and United States; U.N. First Committee, 16th Sess., Summary Records, U.N. Docs. A/C.1/SR.1214 (11 December 1961), 268–269 (France); Harrie Massey and M.O. Robbins, History of British Space Science (Cambridge: Cambridge University Press, 1986), 58–59, 59–60, 60–62; Stephen

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26

27

28

29

30

31

32

E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space Co-Operation (International Astronautical Federation, 2012), 86, available at www.iafastro.org/wp-content/uploads/2014/04/IGY-ACHA-Study.pdf; U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1342, 1344–1345 (2, 4–5 December 1963), 74–75 (United Kingdom), 174 (Belgium), 181 (COSPAR), 184 (Australia); Walter Sullivan, Assault on the Unknown (New York: McGraw-Hill Book Company, Inc., 1961), 408–412; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5785 (13 November 1964), 12–15. U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.11–13, 15 (11–14 September 1962), Statements by Chairman, Belgium, Czechoslovakia, France, Mongolia, Poland, Soviet Union, and United States; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5181 (27 September 1962), 6. Martin Walker, The Cold War: A History (New York: Henry Holt and Company, 1993), 170–179; Stanley Meisler, United Nations: A History (New York: Grove Press, 1995); 142–149; Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 173–177. U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1289– 1294, 1297–1298 (3–7, 10–11 December 1962), Statements by Australia, Austria, Byelorussia, Canada, Czechoslovakia, France, Hungary, India, Italy, Netherlands, Peru, Poland, Romania, Soviet Union, Ukraine, United Kingdom, and United States; Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 15–16, 45, 83. Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 173, 175–176, 176–177, 189, 208–209, 209–212, 214, 217– 218; Martin Walker, The Cold War: A History (New York: Henry Holt and Company, 1993), 181; John F. Kennedy, Commencement Address at American University, Washington, DC, June 10, 1963, 10 June 1963, available at www.jfklibrary.org/archives/ other-resources/john-f-kennedy-speeches/american-university-19630610. Glenn T. Seaborg, Kennedy, Khrushchev, and the Test Ban (Berkeley: University of California Press, 1981), 86, 165, 168–169, 170, 191, 226–227, 238–239, 241, 249–250, 256–257, 288–289; United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 218–232, available at www.un.org/disarmament/ publications/yearbook/volume-1945-1970/; Eighteen-Nation Committee on Disarmament, Final Verbatim Records, U.N. Docs. ENDC/PV.8 (23 March 1962), 15, PV. 75 (27 August 1962), 11–19, PV. 150 (12 August 1963), 4, available at https://quod.lib. umich.edu/e/endc/. Nikita Khrushchev, Letter from Chairman Khrushchev to President Kennedy, 17 August  1963, available at https://history.state.gov/historicaldocuments/frus196163v06/pg_304; Llewellyn E. Thompson, Memorandum of Conversation, 26 August  1963, available at https://history.state.gov/historicaldocuments/frus196163v05/d350; Llewellyn E. Thompson, Memorandum for the Files, 26 August  1963, available at https://history.state.gov/historicaldocuments/frus1961-63v05/d351; Foy D. Kohler, Telegram from the Embassy in the Soviet Union to the Department of States, 10 September 1963, available at https://history.state.gov/historicaldocuments/ frus1961-63v05/d354. U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.12 (12 September 1962), 12–16 (Canada); Eighteen-Nation Committee on Disarmament, Final Verbatim Records, U.N. Docs. ENDC/PV.2, 4–5, 10, 31, 37, 39, 74, 110, 133, 147 (15 March, 19–20 March, 27 March, 4 May, 15 May, 18 May, 24 August  1962; 19 March, 17 May, 21 June 1963), Statements by Canada, India, Italy, Mexico, Soviet Union, Sweden, United Kingdom, and United States, available at https://quod.lib.umich.edu/e/ endc/; United Nations, The United Nations and Disarmament 1945–70 (New York:

Noninterference and nuclear weapons 85 United Nations, 1970), 176–177, available at www.un.org/disarmament/publications/ yearbook/volume-1945-1970/. 33 Leonard Meeker, Further Approach to Soviets on Outer Space Legal Questions, 19 July  1963, available at https://history.state.gov/historicaldocuments/frus196163v25/d427; Adlai Stevenson, Telegram from the Mission to the United Nations to the Department of State, 10 September  1963, available at https://history.state.gov/ historicaldocuments/frus1961-63v25/d429.

5 The declaration of basic principles

At the start of its session in 1963, the Committee on the Peaceful Uses of Outer Space reached a consensus to draft a set of basic legal principles for outer space. By this time, Egypt, the Soviet Union, the United Kingdom, and the United States had all submitted proposals for basic principles. The COPUOS Legal Subcommittee made substantial progress consolidating the proposals into a single draft, but an agreement could not be finalized until the conclusion of the limited nuclear test ban treaty on July 25, 1963. Once that issue was resolved, the Soviet Union and the United States moved forward. On December 13, 1963, the United Nations unanimously adopted the Declaration of Basic Principles for outer space.

The proposals When the COPUOS reconvened in 1963, the Legal Subcommittee focused on the adoption of a set of basic legal principles. The Legal Subcommittee had four drafts of basic principles before it at the start of 1963. One draft was the Declaration of Basic Principles submitted by the Soviet Union in May 1962. Egypt submitted a second draft, titled a Code for International Cooperation in the Peaceful Uses of Outer Space, on September 14, 1962, the last day of the COPUOS’s session that year. After the Cuban Missile Crisis in October, the United Kingdom and the United States each submitted a draft of their own for basic legal principles to the First Committee of the U.N. General Assembly in December 1962. Thus, with four drafts before the COPUOS at the start of 1963, it became apparent that basic principles would be the Legal Subcommittee’s focus that year. The majority of the Soviet Union’s nine-article draft Declaration of Basic Principles had consensus support from the COPUOS. The first four articles simply reformulated the principles from U.N. Resolution 1721 (XVI) by stating that outer space is not subject to territorial claims and international law applies to space. For example, the Soviet draft stated that outer space is “free for exploration and use by all States.” Though some states expressed concern about using different language in the draft Declaration than in Resolution 1721, these concerns largely raised drafting issues and not substantive opposition. The only significant substantive opposition came from Victor Andrés Belaunde of Peru, who argued that the Soviet draft did not go far enough. Resolution 1721 had declared that outer

The declaration of basic principles 87 space was not subject to territorial claims; Ambassador Belaunde argued that the COPUOS should go further by affirmatively declaring that outer space is res communis omnium or under some joint care by the international community, in a way similar to how the Antarctic Treaty of 1959 had placed that continent under collective governance. Ambassador Belaunde did not push this matter, however, as the rest of the committee seemed content with repeating the principles of Resolution 1721. The last article of the Soviet draft Declaration simply called upon states to render assistance to astronauts in distress, which no one found controversial.1 The main opposition to the Soviet draft Declaration had been to Articles 5, 6, 7, and 8, but by 1963, the disagreement on these articles had significantly narrowed. Article 5 had proposed a ban on the use of outer space to disseminate propaganda or encourage “war, national or racial hatred or enmity between nations.” This proposal arose from the Soviet Union’s ongoing discontent with what were – in its view – subversive radio broadcasts from the West. In 1947, the United States began funding Voice of America broadcasts into the Soviet Union from surrounding countries. The goal was to provide independent news coverage to counteract the United States’ view of Soviet propaganda. The same year that these broadcasts began, the United Nations adopted Resolution 110 (II), which condemned all forms of propaganda “designed or likely to provoke or encourage” a breach of peace or act of aggression. The Voice of America broadcasts continued, however, as the resolution did not define propaganda, but the Soviet Union jammed the broadcasts. With the introduction of communication satellites, the Soviet Union now faced the specter of broadcasts not only along its border but from the sky, which would be even more difficult to block. The Soviet proposal to ban propaganda had a measure of support from the rest of the COPUOS. Third World nations tended to be more supportive of the proposal for their own reasons. Brazil, for example, complained that Western news services perpetuated unfair stereotypes of the developing world. Moreover, it was unfair and troubling that with communication satellites, President Kennedy would be able to speak directly to a number of Brazilians living in rural areas of the country while the Brazilian government could not due to a lack of conventional communication infrastructure. Western delegates agreed that propaganda should be banned. Indeed, the West had supported Resolution 110 (II) prohibiting propaganda. The problem with the Soviet proposal was the exact definition of propaganda. For example, Brazil may have been justified in its complaint that Western news coverage of developing nations was unflattering, even possibly unfair, but that did not make it propaganda. The suggestion that propaganda covers objectively truthful facts if presented from an unfavorable perspective raised significant freedom of speech concerns. The COPUOS likely would have been able to compromise on the issue of propaganda in 1962 but for a lack of trust created by poor international relations at the time. The United Kingdom and the United States explained to the COPUOS that, in fact, an agreement to ban propaganda had been reached at the Eighteen-Nation Disarmament Committee. The Soviet Union had introduced a similar proposal to prohibit propaganda in the Disarmament Committee on May 25, 1962, and the

88  The declaration of basic principles committee quickly agreed to the proposal. But on May 29, 1962, the Soviet representative repudiated the agreement after receiving further instructions from his government on the basis that the proposal required certain “improvements.” Thus, at the COPUOS, the United Kingdom and the United States questioned whether the Soviet Union was making its proposal in good faith because it had rejected a substantially similar proposal at the Disarmament Committee.2 Article 6 of the Soviet draft Declaration proposed that outer space experiments that could “hinder the exploration or use of outer space for peaceful purposes by other countries” should not be permitted without prior consultations and consent of other nations. As discussed in the previous chapter, the COPUOS reached a consensus with respect to this article. The COPUOS agreed that states should engage in international consultations for space experiments, and the duty of consultation could be discharged by engaging with COSPAR. In December  1962, Senator Gore even announced that the United States recognized a duty to consult prior to conducting potentially harmful space experiments as a principle of customary international law. The only aspect of the Soviet proposal that the COPUOS rejected was the idea that a state could veto another state’s space experiment. Article 7 of the Soviet draft Declaration required that the exploration and use of outer space “be carried out solely and exclusively by States.” The Western states found this proposal objectionable for two reasons: (1) the article effectively prohibited private enterprise in space and (2) the article prevented smaller nations from pooling resources to conduct space activities through international organizations. The COPUOS, however, was able to reach a compromise on both of these issues in 1962. First, the COPUOS agreed that private enterprise should be allowed in outer space, subject to the supervision and regulation of states. For the West, a total ban on private enterprise was a nonstarter. Private companies were already operating in outer space with communication satellites, such as Telstar. Over a dozen Western nations were collaborating at the time to further expand a commercial satellite communication system. Besides commercial interests, the Soviet proposal would hamper scientific research by private entities, such as universities, and interfere with states that may seek to conduct space activities through private companies or state-backed monopolies. For the Soviet Union, private enterprise was ideologically incongruent with communist philosophy, but there were also concerns that the commercialization of space would prioritize profitmaking over cooperative scientific ventures such as the International Geophysical Year. Commercialization would also incentivize risk-taking ventures in search of profits, which could lead to consequences for all, such as irreparable environmental damage to other celestial bodies. Companies could then evade responsibility or liability for their actions by declaring bankruptcy or engaging in corporate restructuring. France, acknowledging the Soviet concern, suggested a compromise that would require a state to always be responsible for the conduct of private entities. A state could fulfill this duty by establishing a licensing regime to approve space activities or impose standards of care and

The declaration of basic principles 89 provide for continuous supervision. The Soviet Union agreed that state regulation of private enterprise was an acceptable solution so long as a state bore ultimate responsibility.3 Second, the COPUOS reached a consensus that states could also conduct outer space activities through international intergovernmental organizations. At the time of the Soviet Union’s proposal in 1962, Western European nations were in the process of establishing two international organizations to pool their resources in a bid to become a third independent space power. The first organization was the European Launcher Development Organization, or ELDO, which aimed to develop rockets. Australia, Belgium, France, Italy, the Netherlands, West Germany, and the United Kingdom signed a treaty establishing the organization in March 1962. Though this organization was European, Australia had been included at the United Kingdom’s insistence due to the United Kingdom’s reliance on a rocket test range in Woomera, Australia. The second organization was the European Space Research Organization, or ESRO, which served as a coordinator for national space research programs. Belgium, Denmark, France, Italy, the Netherlands, Spain, Sweden, Switzerland, West Germany, and the United Kingdom signed an agreement to establish ESRO in June  1962. ELDO and ESRO would later merge to become today’s European Space Agency in 1975. The Soviet Union informed the COPUOS that it had no intention of prohibiting these types of international organizations and offered to amend Article 7 to specify that states may engage in outer space activities “through international organizations or otherwise” so long as each state of the international organization retained an individual “responsibility to comply with the principles set forth in this Declaration.”4 Article 8 of the Soviet draft Declaration sought to ban “the collection of intelligence information in the territory of foreign states” using satellites. This was the one article of the Soviet draft Declaration on which there was no possible compromise. Setting aside that Western delegates believed that the use of reconnaissance satellites was a disarmament issue that should be discussed only at the Eighteen-Nation Disarmament Committee, the United States was never going to accept a ban on reconnaissance satellites after the resources expended during the International Geophysical Year to establish a legal precedent for the freedom of space. Indeed, international law already appeared to firmly permit reconnaissance from space. Ambassador Belaunde, for example, bluntly characterized the Soviet proposal a “bizarre principle” because international law had always recognized a right to conduct reconnaissance from outside national jurisdictions. Thus, warships and aircraft may gather intelligence by roaming along another nation’s border. Because the United Nations had unanimously agreed that outer space is not national territory, there was no reason why satellites could not observe nations below. The Soviet proposal also suffered from practical problems. Photographs taken by a satellite could be used to gather intelligence on foreign military installations or for a non-military purpose, like studying the weather. There were no practical means of policing the use of information gathered from satellites for one purpose

90  The declaration of basic principles but not the other. Even if a means of enforcing the agreement could be found, such enforcement would require verification and inspections of satellites, a proposition the Soviet Union was never going to accept.5 After the COPUOS debated the Soviet draft Declaration, Egypt, on behalf of Non-Aligned nations, submitted an alternative set of basic principles titled the Code for International Cooperation in the Peaceful Uses of Outer Space. Egypt submitted the Code to the COPUOS on September 14, 1962, the last day of the committee’s session that year. As a result of the late date of submission, the COPUOS did not spend much time discussing the proposal. The Code’s nine articles, however, largely covered the same subjects as the Soviet draft Declaration. But the Code addressed and emphasized two issues of special concern to the Third World that had not been discussed in the Soviet Declaration: (1) the reservation of outer space solely for peaceful purposes and (2) assistance to developing nations in the use and exploration of outer space. By far the most important issue raised by the Egyptian draft Code was the proposal to reserve outer space solely for peaceful purposes. Article 1 of the Code stated that outer space should be used “solely for peaceful uses,” and Article 2 required states to promote peaceful international cooperation in outer space. Although a ban on the military uses of outer space seemed to fall within the scope of the Eighteen-Nation Disarmament Committee rather than the COPUOS, the Disarmament Committee failed to adopt a Canadian proposal to ban the military uses of outer space that year, even though the Soviet Union and the United States had each independently submitted proposals to demilitarize space to the Disarmament Committee. The Egyptian proposal was also timely because it came only two months after the United States detonated a nuclear bomb in space with the Starfish test, an action that escalated the risk that space would become militarized. In this context, Egypt emphasized to the COPUOS that its proposal was essential to secure the “safety of outer space.” The proposal to demilitarize space had widespread support on the COPUOS, especially from Non-Aligned states but also American allies such as Australia, Italy, and Japan, and Soviet bloc nations such as Bulgaria. But the Soviet Union and the United States remained ominously silent about the Egyptian proposal. On September 12, 1962, two days before Egypt introduced its draft Code, President Kennedy had made statements that seemed to suggest an interest in preserving outer space for peaceful purposes. That speech given at Rice University is better known for its defense of the Apollo Program and the declaration that: We choose to go to the moon. We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win, and the others, too.

The declaration of basic principles 91 But the speech was also important because President Kennedy explained why it was so important for the United States to lead in outer space: For the eyes of the world now look into space, to the moon and to the planets beyond, and we have vowed that we shall not see it governed by a hostile flag of conquest, but by a banner of freedom and peace. We have vowed that we shall not see space filled with weapons of mass destruction, but with instruments of knowledge and understanding. Yet the vows of this Nation can only be fulfilled if we in this Nation are first, and, therefore, we intend to be first. . . . only if the United States occupies a position of pre-eminence can we help decide whether this new ocean will be a sea of peace or a new terrifying theater of war. In short, President Kennedy wanted to establish American preeminence in outer space so that it could set the tone that outer space should only be used for peaceful purposes. Unfortunately, the hope that the COPUOS might adopt a ban on the military uses of outer space faded after Senator Gore’s momentous speech to the U.N. General Assembly on December 3, 1962. During the speech, which laid out new American policies in space to ease Cold War tensions in the aftermath of the Cuban Missile Crisis, Senator Gore made clear that that the United States would avoid the use of outer space for aggressive purposes, but a total ban on the military use of space was unrealistic. This was because no clear lines could be drawn between the military and non-military uses of space. Satellites tasked with taking photos of the weather could just as easily photograph military facilities. Moreover, some military uses of space, such as reconnaissance satellites, could be key to maintaining peace on the earth by monitoring the disposition of military assets to prevent surprise attacks and provide for verification of compliance with disarmament agreements. The United States’ position came under heavy criticism from Third World nations such as Egypt and Peru, which demanded that the United States forswear the introduction of weapons to outer space. Some Soviet bloc nations, such as Bulgaria and Poland, joined in the criticism, but the Soviet Union itself said nothing. In the end, the Soviet Union too could not accept a ban on the military uses of outer space; it relied on ICBMS – which pass through space – for national defense. Military uses of outer space would always exist so long as militaries and deterrence remained a necessity on the earth. The second matter introduced by the Egyptian draft Code was a set of principles to support the use of space by developing nations. In four articles, these principles required the promotion of international cooperation to enable participation by developing nations in space, and a duty for spacefaring nations to provide joint training and research programs for space activities. Although the superpowers and other delegates praised these principles, in reality, the COPUOS spent little time discussing them. The problem was not simply the late submission of the draft Code at the end of the COPUOS session in 1962, but that other concerns were

92  The declaration of basic principles far more pressing to the committee at the time, such as disarmament, rescue of astronauts, and liability. The committee would eventually return to the matter of economic assistance to developing nations for outer space activities, but not until the 1970s.6 Although the COPUOS did not spend much time discussing the Egyptian draft Code or adopt the Code’s view on disarmament and economic assistance, the Code was important for changing the focus of discussion at the COPUOS. Until the Egyptian proposal, the United States and other Western delegations had resisted the Soviet Union’s proposal to develop a set of basic legal principles. The Egyptian draft Code, however, signaled that if the West did not engage, they risked the development of space law in ways that were unfavorable to them. As a result, the United Kingdom and the United States introduced their own proposals for basic principles at the next opportunity during the First Committee’s session in December 1962. The United Kingdom introduced its proposal first on December 4, 1962. Titled Declaration of Principles Governing the Activities of States Pertaining to the Exploration and Use of Outer Space, the United Kingdom’s draft had only four paragraphs. These covered the most basic principles, such as that space is free for use and exploration by all nations, that space is not subject to territorial claims, and international law applies to space. The United Kingdom’s draft did go further, however, by explicitly establishing specific freedoms, such as the freedom of navigation, a right to establish space stations, a right to conduct scientific research, and a right to land on other celestial bodies. The United Kingdom also addressed the Soviet demand for a principle of noninterference by acknowledging that states must pay “due regard” to the interests of other states when using outer space and must engage in consultations when conducting experiments that could harm other nations. The reference to “due regard” implicated a general principle of international law that requires states to balance their own rights and interests with those of other states when they conflict.7 The United States followed the United Kingdom by submitting its own set of basic principles on December 8, 1962. Titled Declaration of Principles Relating to the Exploration and Use of Outer Space, the American draft had seven paragraphs. Most of these paragraphs again repeated the most basic of principles that the COPUOS had already agreed upon, such as freedom to use and explore space or a duty to rescue astronauts in distress. The American draft did, however, contain two new principles not reflected elsewhere. First, the United States proposed that states bear “international responsibility” for all spacecraft launched from their territory or with their assistance or permission. This principle captured the compromise from the discussion of Article 7 of the Soviet draft Declaration in which the West had rejected the Soviet proposal to ban private enterprise from space but accepted that states should supervise and be responsible for private entities operating in space. Second, the United States proposed that states accept, as a broad principle, that they will bear liability for damage caused by spacecraft on the earth or in airspace; although a more specific treaty would be needed to flesh out the specific rules and procedures for obtaining compensation.8

The declaration of basic principles  93 By the end of 1962, with four nations having submitted drafts of basic legal principles to the COPUOS, it was clear that the committee’s priority the following year would be the adoption of a set of basic principles. Accordingly, on December 14, 1962, the United Nations adopted Resolution 1802 (XVIII), which directed the COPUOS to, among other things, “continue urgently its work on further elaboration of basic legal principles governing the activities of States in the exploration and use of outer space.”9

Building consensus The COPUOS convened in New York in February  1963, and the Legal Subcommittee met a few months later in Geneva in April and May where the focus turned to drafting a set of basic legal principles. The atmosphere of the committee had become significantly more cooperative and far less toxic than the previous year. After the Cuban Missile Crisis, the Soviet Union and the United States each restrained their rhetoric and communicated in a more businesslike fashion. For example, at the United States’ suggestion, the Legal Subcommittee agreed to reduce the number of its sessions by half so that more negotiations could take place off the record where delegates could speak more freely. This also encouraged representatives to focus on productive discussions rather than grandstanding political speeches with which the Legal Subcommittee had become infected the prior year.10 The Legal Subcommittee’s first task was to decide where to begin with a draft of basic legal principles. The subcommittee had four drafts, each with a variety of differences but also significant overlap. A  logical process was to select one draft, then add elements that the committee agreed upon from other drafts, so that the committee was always working with one primary document. Initially, the United Kingdom’s draft appeared to be the best starting point. Of the four drafts, the United Kingdom’s was the most basic and least controversial because it had focused only on the most fundamental principles. Many delegates, including nonaligned nations such as Egypt and Mexico, agreed to start with the United Kingdom’s draft because consensus already existed in favor of each principle in that draft. The Soviet Union, however, insisted that its draft Declaration should serve as the committee’s primary document. Having introduced the idea of basic principles, the Soviet Union did not want to surrender the pride of authoring the main document. The Soviet Union had made significant amendments to its draft in a genuine effort to build consensus. Many of the changes incorporated elements from other proposals that had been missing in the Soviet draft. For example, the Soviet Union added two articles, one providing that states retain jurisdiction over spacecraft in space and another providing for liability, which were principles that originated from the United States’ draft. The articles concerning the non-appropriation of outer space had been reformulated based upon the United Kingdom’s draft. The Soviet Union even added to the preamble the concept that the use and exploration of space should be for the betterment of all “irrespective of their degree of

94  The declaration of basic principles economic or scientific development,” a concept taken from the Egyptian draft Code. Other changes reflected feedback from other delegations during the course of the COPUOS discussion the previous year. For example, the Soviet draft now permitted private enterprises to operate in space under the supervision of states and also recognized the right to engage in space activities through international intergovernmental organizations.11 With the Soviet Union’s amendments to its draft Declaration, there were only two articles of the draft on which the Legal Subcommittee disagreed. The first was the Soviet Union’s proposal to ban the dissemination of propaganda from outer space. The second was the proposal to ban the use of satellites for intelligence gathering. Many delegates viewed these proposals as falling within the responsibility of the Eighteen-Nation Disarmament Committee rather than the COPUOS. In addition, while some compromise might be found in the article concerning propaganda depending on the definition of propaganda, a ban on the use of satellites for intelligence gathering was never going to be accepted by the United States.12 Having reached a great deal of consensus on the substance of the Soviet draft Declaration, the Legal Subcommittee actually spent more of its time debating the form of the agreement. There were basically two options: the Declaration could be adopted by the United Nations as a treaty for ratification by member states, or the Declaration could be adopted as a General Assembly resolution. The Soviet Union and its allies favored the adoption of a binding international treaty. Although a treaty would take longer because national legislatures would have to ratify it, the Soviet Union believed that the principles had to be in a binding treaty to have meaning. The Soviet Union viewed anything short of a treaty to be insincere. The United States and most Western delegates favored a nonbinding, but unanimously adopted, U.N. resolution. Although a resolution is technically nonbinding, an unanimously adopted resolution would carry significant weight and be evidence of customary international law. Indeed, some noted that the practical difference between a treaty and an unanimously adopted resolution was minimal. Moreover, as the Declaration was at times intentionally vague because the document was designed only to capture broad principles, some Western delegates felt the language did not have the precision normally expected of a treaty. The draft Declaration’s commitment to recognize the “equal rights” of states in space, for example, was rather unclear. Finally, a resolution did not preclude the adoption of a treaty later if that was appropriate.13 India and Lebanon engineered a possible compromise on the form of the agreement. They suggested that the basic principles could be adopted as a United Nations “declaration” rather than a “resolution.” The distinction between these two items was nuanced, and not necessarily recognized in law. As the delegates explained it, a declaration is a unanimously adopted General Assembly document that carries more force than a resolution. Lebanon cited as an example the 1948 U.N. Declaration of Human Rights, which many states recognized as part of customary international law even though it is officially nonbinding. The Western delegates had no problem agreeing to this compromise because it was basically the

The declaration of basic principles 95 position they had taken. Many socialist nations, most critically the Soviet Union, however, also stated that a declaration was an agreeable format.14 The Legal Subcommittee had made significant progress on basic legal principles by the end of its session in May 1963, though the closing of the session became marred by disputes over the subcommittee’s report. Canada and other Western delegates favored a detailed report that would clearly show that the subcommittee made significant progress. Non-Aligned nations, such as Austria, Egypt, and India, also wanted the report to reflect significant progress. The Soviet Union and Eastern bloc nations, however, wanted a higher-level report that was gloomier about the progress that had been made by emphasizing the significant differences that remained, specifically with respect to the dissemination of propaganda and intelligence gathering from space. Because the vast majority of the subcommittee favored a more detailed report, the United States questioned whether the subcommittee needed to be unanimous on the report. This led to charged accusations from the Soviet Union that the United States was trying to upset the rule of consensus.15 The subcommittee ultimately did proceed under the rule of consensus and adopted the less detailed version of its report.

Final negotiations After the Legal Subcommittee session concluded, Leonard C. Meeker, deputy legal adviser in the State Department and the United States’ representative at the subcommittee, urged the Kennedy Administration to pursue negotiations on basic legal principles for outer space. On July 19, 1963, he wrote that the general sentiment of the COPUOS was in favor of some sort of agreement on space law. Meeker noted that the United States was about to reach an agreement on a limited test ban treaty with the Soviet Union. He suggested that the Kennedy Administration take advantage of improved relations after signing the limited test ban treaty to secure an agreement on basic principles for outer space. On July 26, 1963, three days after signing the limited test ban treaty in Moscow, the United States followed through on Meeker’s recommendation by sending a note to the Soviet Union asking for bilateral talks to complete the work on basic legal principles. The Soviet Union agreed to bilateral talks, but not until the COPUOS was convening six weeks later in September 1963. Despite the Soviet Union’s late reply, Ambassador Adlai Stevenson was optimistic because the Soviet reply was “businesslike,” and he interpreted the timing of the Soviet reply as aiming for an agreement later in the year rather than disinterest. The timing of the response, however, created a potentially awkward situation vis-à-vis the COPUOS. The bilateral talks could be duplicative of discussions at the COPUOS and send the wrong signal that the views of other nations were unimportant to the development of space law. After consulting with COPUOS Chairman Franz Matsch, however, the decision was made to proceed with parallel talks. This once again highlighted the point made years ago by the Soviet Union that any agreement in space required the support of both the Soviet Union and United States.16

96  The declaration of basic principles The focus of the bilateral talks turned to the two disarmament-related proposals in the Soviet draft Declaration, a ban on the dissemination of propaganda, and a prohibition of intelligence gathering from outer space. These were the only articles on which the Legal Subcommittee had not reached a consensus. The two articles remained important to the Soviet Union. For example, on September 10, 1963, the U.S. Ambassador in Moscow cabled that Soviet Foreign Minister Gromyko reported that the Soviet Union was genuinely interested in an agreement on space, but the Soviet government’s view “remains substantially same as before: i.e., any formulation of outer space rules must provide for prohibition of satellites for spying, propaganda or military purposes.” The Soviet representative at the COPUOS took the same position.17 The superpowers reached a compromise on the first issue of propaganda. The United States still viewed the issue as a disarmament issue that should be addressed by the Eighteen-Nation Disarmament Committee, not the COPUOS, but it was willing to recognize the basic point that propaganda should be avoided. The United States had already condemned propaganda designed or likely to provoke or encourage a threat to peace by voting in favor of U.N. Resolution 110 (II) in 1948. Rather than developing an entirely new article or separate agreement, the Soviet Union and the United States agreed that the preamble to the Declaration would refer to Resolution 110 (II) and state that the principles of that resolution apply to space. The Soviet Union and the United States could not reach an agreement on a prohibition of intelligence gathering from space, although on this point experience gained from negotiating the limited test ban treaty provided a way forward. Because an agreement to prohibit intelligence gathering was unlikely, the United States suggested that the Soviet Union accept the Declaration as a limited agreement without this provision. When presenting the agreement to the COPUOS, the Soviet Union and the United States would emphasize that the Declaration was a first step in the development of space law and was not intended to be comprehensive. Other principles not reflected in the Declaration could be adopted in the future. A similar approach had been taken with the limited test ban treaty when it became obvious that a ban on testing in all environments was not feasible. Rather than walking away with no agreement, the parties accepted a limited treaty to ban testing in the environments they could agree upon. Such limited agreements could build the trust needed for more comprehensive agreements in the future.18 The Soviet Union and the United States, after reaching an agreement on the draft Declaration among themselves in early November 1963, began consulting with members of the COPUOS to gather their opinions on the draft before reconvening the committee. The most significant concern raised by other members of the committee was a failure to reserve outer space for peaceful purposes. NonAligned nations, such as Brazil, Egypt, Japan, Lebanon, and India, continued to be the main advocates for demilitarization. Although the Soviet Union and the United States had rejected a complete ban on the military uses of space, only a month earlier on October 17, 1963, the United Nations had adopted Resolution 1884 (XVIII), which called upon states to refrain from placing weapons of mass

The declaration of basic principles 97 destruction in space. These states argued that, at the very least, the Declaration could reiterate this principle or refer to Resolution 1884. Brazil added another complaint that the draft Declaration failed to provide for the regulation of communication satellites as it had proposed. The Soviet Union, the United States, and other supporters of the draft Declaration responded to these concerns by emphasizing – as the Soviet Union and the United States had agreed during bilateral talks  – that the Declaration was only a first step and not intended to be comprehensive. The Soviet representative adopted a rather harsh tone by categorically refusing any amendments to the Declaration after noting that the draft represented the widest possible agreement of the COPUOS, and many principles that the Soviet Union wanted had not made it into the draft either. Others took a softer approach. Manfred Lachs, Chairman of the Legal Subcommittee, for example, stated that the Declaration was only a first step and did “not constitute a closed chapter.” Canada similarly emphasized that the Declaration represented the least common denominator of agreement. Under the rule of consensus, the committee should oppose the Declaration only if a state objected to a principle in the draft, not because the draft failed to include something that a state wanted. Other members of the COPUOS generally accepted this position, but not all were happy. Brazil, for example, agreed to support the adoption of the draft Declaration by the COPUOS but would not cosponsor the document to the U.N. General Assembly. On November  22, 1963, the COPUOS reconvened for a one-day meeting to formally adopt the Declaration so that the U.N. General Assembly to consider the text that year. The final draft contained nine articles. Legal Subcommittee Chairman Manfred Lachs led the committee through a summary of each article. Other members of the committee commented upon the articles for clarification or to provide their delegation’s understanding of an article and, where appropriate, made reservations.19 Articles 1–4 reformulated the most basic principles that the United Nations had adopted in Resolution 1721 (XVI). The articles provide for freedom to use and explore space on the basis of equality and the use of outer space for the interests of all mankind. The articles also prohibited territorial claims in space and on celestial bodies and reaffirmed the application of international law to outer space. Australia, France, and Hungary commented that the articles were vague and would require follow-up in the future to make them effective. Brazil complained that the articles failed to recognize that space should be used “for the benefit of States irrespective of their degree of economic or scientific development.” That language had instead been relegated to the preamble. Overall, however, the articles were unobjectionable.20 Article 5 required states to “bear international responsibility for national activities in outer space” and recognized a right to conduct space activities through international intergovernmental organizations. Private entities are allowed in space so long as their activities are under the “authorization and continuing supervision of the State concerned.” The United Kingdom commented that, for purposes of interpretation, all references to the rights and duties of “states” should also be read

98  The declaration of basic principles to refer to international organizations in light of Article 5. Canada and the United States commented that Article 5 would require clarification in the future to discuss how responsibility should be allocated for space activities conducted jointly by multiple states outside the context of an international organization.21 Article 6 required states to show “due regard” to the interests of other states and to engage in international consultations before conducting a potentially harmful experiment in outer space. The United States commented, as discussed during the Legal Subcommittee meetings, that the duty to consult could be discharged through discussions with COSPAR, although other methods of consultation may also be appropriate. A significant portion of the COPUOS was dissatisfied with Article 6. The main complaint was that Article 6 did not provide for any consequences if consultation did not resolve concerns about a potentially harmful experiment. Brazil and Peru suggested that the article should have provided for binding arbitration if consultations could not resolve concerns. Canada raised a different complaint that Article 6 failed to provide for the protection of the earth or space in its own right. Article 6 only required consultation if an experiment could cause “harmful interference” to another state. The article did not impose any obligation where an experiment could harm the environment, so long as there was no risk of harmful interference with another state. An experiment that severely damaged the moon’s environment, for example, would theoretically be permitted if it did not interfere with another state’s use of the moon.22 Article 7 extended a state’s jurisdiction to spacecraft and other space objects in outer space if the object is on the state’s registry. This was a limited exception to the principle that states have no sovereignty in outer space, similar to how states have jurisdiction over ships and aircraft in international waters or airspace. The COPUOS recognized that this article in particular would require follow-up because the concept of a “state of registry” had been introduced without any definition. Moreover, there was no legal duty to register spacecraft. The only registration system that existed at the time was a voluntary one under Resolution 1721 (XVI).23 Article 8 provided that a state “which launches or procures the launching” of a space object or “from whose territory or facility” a space object is launched is internationally liable for damage caused by that space object to a foreign state or its nationals. Here again the COPUOS agreed that the Declaration would have to be expanded upon. The committee would need to develop a treaty describing the circumstances of liability and the procedure for claiming compensation.24 Article 9 provided that states must render assistance to astronauts in the event of an accident, distress, or emergency landing in foreign territory or on the high seas. Astronauts would also have to be promptly returned to their home country without condition. The COPUOS had already agreed to work on a more specific resolution or treaty governing the rescue and return of astronauts. A related topic for a future agreement was the return of space objects landing in foreign territory.25 The final matter that the COPUOS discussed was the form of the agreement. The Soviet Union and the United States announced an agreement to adopt the Declaration as a nonbinding U.N. resolution, but the superpowers would each

The declaration of basic principles 99 recognize the articles of the Declaration as a reflection of existing customary international law. In other words, while the Declaration itself was not technically legally binding, the Declaration was simply putting into writing what was already international law. The Soviet Union added one caveat that it would recognize the Declaration as binding only if the United Nations adopted the document unanimously.26 While other members of the COPUOS generally welcomed the superpowers’ willingness to accept the Declaration as reflecting binding law, a number of states including Australia, Egypt, France, and India announced they would not be making the same commitment. For them, elements of the Declaration were still too vague to be binding. Indeed, most delegates had agreed that many of the articles required follow-up. Moreover, these states felt that state practice in space was still insufficient to establish any customary international law.27 Setting aside any reservations, on November  22, 1963, the COPUOS unanimously adopted the Declaration of Legal Principles Governing the Activities of States in the Use and Exploration of Outer Space. The Declaration was the first major step in the development of space law. Just as the Universal Declaration of Human Rights served as the basis for many subsequent human rights treaties, the Declaration of Legal Principles for outer space would serve as the basis for all subsequent treaties on outer space. But, as the COPUOS was celebrating its first major accomplishment, a tragedy was transpiring in the United States. Early in the afternoon of November 22, 1963, news outlets began reporting that a shooting had occurred in Dallas, Texas. The president’s motorcade had been fired upon. Within 10 minutes, Walter Cronkite was telling Americans that the president had been shot. An hour later, the official announcement came. President Kennedy was dead.

Notes 1 U.N. GAOR, USSR Proposal: Declaration of the Basic Principles Governing Activities of States Pertaining the Exploration and Use of Outer Space, U.N. Doc. A/AC.105/ C.2/L.1 (6 June  1962); U.N. COPUOS, Union of Soviet Socialist Republics: Draft Declaration of the Basic Principles Governing the Activities of States Pertaining to the Exploration and Use of Outer Space, U.N. Doc. A/AC.105/L.2 (10 September 1962); U.N. COPUOS Legal Sub-Committee. Summary Records. U.N. Docs. A/AC.105/C.2/ SR.7, 9–11, 13–14 (7, 12–14, 18–19 June  1962), Statements by Australia, Canada, Czechoslovakia, France, Poland, Romania, Soviet Union, United Kingdom, and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.12–13, 15 (14 September  1962), Statements by France, Hungary, and Soviet Union; U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1290 (4 December 1962), 51 (Peru). 2 U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1290, 1296 (4, 10 December 1962), Statements by Brazil and Peru; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.10–13 (10–13 September  1962), Statements by Brazil, Soviet Union and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.4–5, 7–10, 13 (4–5, 7–8, 12–13, 18 June 1962), Statements by Albania, Australia, Brazil, Canada, Czechoslovakia, France, Romania, Soviet Union, United Kingdom, and United States; United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 139,

100  The declaration of basic principles available at www.un.org/disarmament/publications/yearbook/volume-1945-1970/; U.N. COPUOS, Union of Soviet Socialist Republics: Draft Declaration of Basic Principles Governing the Activities of States in the Exploration and Use of Outer Space, U.N. Doc. A/AC.105/C.2/L.6 (17 April 1963); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.19–24, 26 (19, 22–25, 29 April, 1 May  1963), Statements by Argentina, Australia, Brazil, Canada, France, Hungary, Italy, Poland, Romania, Soviet Union, and United Kingdom; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.20–22 (9–13 September  1963), Statements by Austria, Poland, and United States; U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1342, 1346 (2, 5 December  1963), Statements by Brazil and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/ PV.24 (22 November 1963), 42 (Brazil); Stanley Meisler, United Nations: A History (New York: Grove Press, 1995), 228–230; Adlai Stevenson, Airgram from the Mission tot eh United Nations to the Department of State, 8 November 1963, available at https://history.state.gov/historicaldocuments/frus1961-63v25/d447; Eighteen-Nation Committee on Disarmament, Final Verbatim Records, U.N. Docs. ENDC/PV.10 (27 March 1963), 32–33 (Nigeria). 3 U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1294 (7 December  1962), Statements by Czechoslovakia; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.10–13, 15 (10–14 September  1962), Statements by Czechoslovakia, France, Soviet Union, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.7–10 (7–8, 12–13 June  1962), Statements by Bulgaria, Canada, Czechoslovakia, France, Italy, Romania, Soviet Union, and United Kingdom; U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1290, 1292, 1294 (4–5, 7 December 1962), Statements by Czechoslovakia, Peru, and Romania; U.N. First Committee, 17th Sess., Summary Records, U.N. Docs. A/C.1/SR.1290 (4 December 1962), 220 (Peru); U.N. Ad Hoc COPUOS, Report Under Paragraph 1(d) of the General Assembly Resolution 1348(XIII) (Working Paper Submitted by the Delegation of the United States), U.N. Doc. A/AC.98/L.7 (27 May 1959), 2; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.20–22 (9–13 September 1963), Statements by Austria, Soviet Union, and United States; U.N. First Committee, 18th Sess., Verbatim Records, U.N. Docs. A/AC.1/PV.1342 (2 December  1963), 52–55 (Austria); U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.17–18, 20–22, 24, 27–28 (17–18 April, 22–24 April, 29 April, 2–3 May  1963), Statement by Canada, Czechoslovakia, France, Hungary, India, Japan, Mexico, Soviet Union, United Kingdom, and United States; U.N. Ad Hoc COPUOS, Working Paper Submitted by the Delegation of Mexico, U.N. Doc. A/AC.98/L.8 (30 May 1959), 4. 4 Harrie Massey and M.O. Robbins, History of British Space Science (Cambridge: Cambridge University Press, 1986), 12–13, 109–110, 113, 119, 121, 136–142, 156, 225–240; Stephen E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space Co-Operation (International Astronautical Federation, 2012), 21, available at www.iafastro.org/wp-content/uploads/2014/04/IGY-ACHAStudy.pdf; U.N. COPUOS, Union of Soviet Socialist Republics: Draft Declaration of Basic Principles Governing the Activities of States in the Exploration and Use of Outer Space, U.N. Doc. A/AC.105/C.2/L.6 (17 April  1963); U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.7 (7 June 1962), Statements by Soviet Union and United States; U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1290, 1296 (4, 10 December 1962), Statements by Peru and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.17, 20–22, 27–28 (17 April, 22–24 April, 2–3 May  1963), Statement by Canada, France, Italy, Soviet Union, and United States; U.N. First Committee, 16th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1210 (4 December 1961),

The declaration of basic principles 101

5

6

7

8

Statements by United Kingdom; U.N. First Committee, 16th Sess., Summary Records, U.N. Docs. A/C.1/SR.1214 (11 December 1961), Statements by France; U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.987 (17 November  1958), Statement by Belgium; U.N. COPUOS. Verbatim Records. U.N. Docs. A/AC.105/PV.61–67 (8–15 September 1969), 115; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.22 (13 September  1963), Statements by Italy; U.N. First Committee, 18th Sess., Verbatim Records, U.N. Docs. A/AC.1/PV.1346 (5 December 1963), 190 (Nigeria). Dean Rusk, Telegram from the Department of State to the Embassy in Japan, 13 November  1963, available at https://history.state.gov/historicaldocuments/frus196163v25/d431; U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/ PV.1289–1291, 1293–1294, 1296–1297 (3–4, 6–7, 10 December 1962), Statements by Albania, Bulgaria, Czechoslovakia, France, Hungary, Peru, Poland, Soviet Union, and Sudan; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.10–13 (10–13 September  1962), Statements by Albania, Czechoslovakia, France, Hungary, Soviet Union, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.4–5, 7–10, 13 (4–5, 7–8, 12–13, 18 June 1962), Statements by Czechoslovakia, France, Romania, Soviet Union, United Kingdom, and United States; U.N. COPUOS, Union of Soviet Socialist Republics: Draft Declaration of Basic Principles Governing the Activities of States in the Exploration and Use of Outer Space, U.N. Doc. A/AC.105/C.2/L.6 (17 April 1963); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.17–18, 20–22, 24, 26–28 (17–18, 22–24 April, 29 April, 1–3 May 1963), Statement by Albania, Canada, Czechoslovakia, France, Hungary, Italy, Mexico, Soviet Union, and United Kingdom; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 88–89; U.N. First Committee, 16th Sess., Summary Records, U.N. Docs. A/C.1/SR.1212– 1213 (6–7 December 1961), Statements by Byelorussia and Hungary. U.N. COPUOS, United Arab Republic: Code for International Cooperation in the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/L.6 (14 September 1962); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.11–13, 15 (11–14 September 1962), Statements by Egypt, India, Japan; U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1290, 1293–1297 (4, 6–10 December  1962), Statements by Albania, Australia, Bulgaria, Byelorussia, Ceylon, Czechoslovakia, Egypt, Pakistan, Peru, Poland, and Yugoslavia; U.N. First Committee, 16th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1211 (5 December 1961), Italy; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.7 (7 June 1962), Statements by Italy; John F. Kennedy, Address at Rice University on the Nation’s Space Effort, 12 September  1962, available at www.jfklibrary.org/learn/ about-jfk/historic-speeches/address-at-rice-university-on-the-nations-space-effort; Stanley Meisler, United Nations: A History (New York: Grove Press, 1995), 224. U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1290–1295 (4–7 December 1962), Statements by Canada, Czechoslovakia, Italy, Mongolia, Romania, United Kingdom, and Yugoslavia; U.N. GAOR, Letter Dated 4 December 1962 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the Chairman of the First Committee, U.N. Doc. A/C.1/879 (4 December 1962); Fisheries Jurisdiction (United Kingdom v. Iceland), 1974 I.C.J. 4, 32 (July 25). U.N. GAOR, Letter Dated 8 December 1962 from the Representative of the United States of America to the Chairman of the First Committee, U.N. Doc. A/C.1/881 (8 December  1962); U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1296 (10 December  1962), Statements by United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.20 (22 April 1963), 11–13 (United States).

102  The declaration of basic principles 9 U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1296–1298 (10–11 December  1962), Statements by Bulgaria, Mexico, South Africa, Sweden, United Kingdom, and United States; U.N. GAOR, Canada and United States of America: Draft Resolution, U.N. Doc. A/C.1/L.320 and Add.1 (29 November 1962); United Nations, General Assembly Resolution 1802 (XVII), International Co-Operation in the Peaceful Uses of Outer Space, A/RES/1802(XVII) (14 December  1962); U.N. GAOR, 17th Sess. 1192nd plen. mtg., U.N. Doc. A/PV.1192 (14 December  1962), 1103–1104. 10 U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5549 (24 September  1963), 6–7; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.17 (25 February  1963), 1–7 (Chairman, Soviet Union, United States); Vladimir Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including the Moon and Other Celestial Bodies (U.N. Audio Visual Library of International Law), 2–3, available at https://legal.un.org/avl/ ha/tos/tos.html. 11 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.17–18, 20, 22, 24, 26 (17–18 April, 22 April, 24 April, 29 April, 1 May  1963), Statement by Brazil, Chad, Egypt, Hungary, Italy, Mexico, Soviet Union, and United Kingdom; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.20 (9 September 1963), 24–27 (Soviet Union); U.N. COPUOS, Union of Soviet Socialist Republics: Draft Declaration of Basic Principles Governing the Activities of States in the Exploration and Use of Outer Space, U.N. Doc. A/AC.105/C.2/L.6 (17 April 1963), 11–12. 12 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.17–18, 22–24, 28 (17–18 April, 24 April, 29 April, 3 May  1963), Statement by Argentina, Australia, India, Romania, Soviet Union, and United Kingdom; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.20 (9 September 1963), Statements Soviet Union. 13 U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1290, 1298 (4, 11 December 1962), Statements by Australia; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.17–24, 26, 28 (17–29 April, 1–3 May  1963), Statement by Argentina, Australia, Bulgaria, Canada, Czechoslovakia, Hungary, Japan, Mexico, Mongolia, Poland, Romania, Soviet Union, United Kingdom, and United States. 14 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.21–22, 24, 27–28 (23–24 April, 29 April, 2–3 May 1963), Statement by Albania, Canada, Lebanon, India, and United Kingdom; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.20–21 (9–12 September 1963), Statements by Hungary and Soviet Union. 15 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.27–28 (2–3 May 1963), Statement by Austria, Belgium, Bulgaria, Chairman, Canada, Czechoslovakia, Egypt, India, Italy, Lebanon, Mongolia, Poland, Soviet Union, and United States. 16 Leonard Meeker, Further Approach to Soviets on Outer Space Legal Questions, 19 July 1963, available at https://history.state.gov/historicaldocuments/frus1961-63v25/ d427; Adlai Stevenson, Telegram from the Mission to the United Nations to the Department of State, 10 September 1963, available at https://history.state.gov/historicaldocuments/frus1961-63v25/d429; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.20–21 (9–12 September  1963), Statements by Australia and United States. 17 Foy D. Kohler, Telegram from the Embassy in the Soviet Union to the Department of States, 10 September 1963, available at https://history.state.gov/historicaldocuments/ frus1961-63v05/d354; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/ PV.20, 22 (9, 13 September 1963), Statements by Czechoslovakia and Soviet Union;

The declaration of basic principles  103 18

19

20

21

22

U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1343 (3 December 1963), 170 (Bulgaria). U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.20 (9 September 1963), 10–11 (United States); Adlai Stevenson, Telegram from the Mission to the United Nations to the Department of State, 10 September 1963, available at https://history. state.gov/historicaldocuments/frus1961-63v25/d429; Foy D. Kohler, Telegram from the Embassy in the Soviet Union to the Department of States, 10 September  1963, available at https://history.state.gov/historicaldocuments/frus1961-63v05/d354. U.N. First Committee, 16th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1213 (7 December  1961), 32–33 (India); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.1, 7 (28 May, 7 June  1962), Statements by United States; U.N. First Committee, 17th Sess., Verbatim Records, U.N. Docs. A/C.1/ PV.1289 (3 December  1962), 13–17 (United States); U.N. First Committee, 17th Sess., Summary Records, U.N. Docs. A/C.1/SR.1289 (3 December 1962), 213 (United States); U.N. COPUOS Legal Sub-Committee, Summary Records. U.N. Docs. A/ AC.105/C.2/SR.18, 20–24 (18, 22–29 April, 3 May 1963), Statements by Australia, Brazil, Egypt, India, Italy, Lebanon, Japan, and United Kingdom; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.24 (22 November  1963), 2 (Austria), 3–5 (Poland), 4–5 (Chairman), 13 (United States), 14–15 (Canada), 17 (Australia), 31–35 (Austria), 37–38 (Japan), 42 (Brazil), 42–45 (India), 46–47 (Lebanon), 51–55 (Soviet Union), 56–60 (Chairman); U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1342–1346 (2–5 December 1963), 12 (United States), 41–42 (Soviet Union), 51 (Austria), 57–58 (Egypt), 61–65 (Egypt), 71 (United Kingdom), 168 (India), 169 (Hungary), 170 (Pakistan), 174–175 (Romania), 175 (Japan), 177 (Lebanon), 177 (Yugoslavia), 182 (Czechoslovakia), 186 (Argentina), 186–188 (Byelorussia), 189 (Canada), 190 (Brazil); U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5549 (24 September 1963); Dean Rusk, Telegram from the Department of State to the Embassy in Japan, 13 November 1963, available at https://history.state.gov/historicaldocuments/frus1961-63v25/d431; United Nations, The United Nations and Disarmament 1945–70 (New York: United Nations, 1970), 174, available at www.un.org/disarmament/publications/yearbook/ volume-1945-1970/; James S. Lay, Executive Secretary, Nation Security Council: U.S. Policy on Outer Space, NSC 5814, 20 June 1958, 5, 11–12; Arkady Sobolev, Union of Soviet Socialist Republics: Request for the Inclusion of an Item in the Provisional Agenda of the Thirteenth Session, U.N. Doc. A/3818 (17 March 1958). U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.24 (22 November 1963), 4–5 (Chairman Lachs), 7–11 (United States), 22 (Australia), 23–24 (France), 42 (Brazil); U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/ SR.1343, 1346 (3, 5 December 1963), 169 (Hungary), 190–191 (Brazil). U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.24 (22 November 1963), 6 (Chairman Lachs), 11 (United States), 16 (Canada), 27 (United Kingdom); U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1342–1344, 1345 (2, 4–5 December 1963), 73, 76–77 (United Kingdom), 169 (Hungary), 173 (Belgium), 182 (Czechoslovakia). U.N. First Committee, 16th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1211 (5 December 1961), 46 (Peru); U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1342–1344, 1346 (2–5 December 1963), 74–75 (United Kingdom), 169 (Hungary), 171 (Bulgaria), 176 (Peru), 190 (Nigeria); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.24 (22 November  1963), 6 (Chairman Lachs), 11–12 (United States), 16 (Canada), 42 (Brazil); U.N. GAOR, USSR Proposal: Declaration of the Basic Principles Governing Activities of States Pertaining the Exploration and Use of Outer Space, U.N. Doc. A/AC.105/C.2/L.1 (6 June 1962), 9; U.N. Ad Hoc COPUOS, Report of the Legal Committee, U.N. Doc. A/AC.98/2 (12 June 1959),

104  The declaration of basic principles

23

24

25

26 27

9; U.N. GAOR, 13th Sess., U.N. Docs. A/C.1/SR.981–995 (11–24 November 1958), Statement by China; U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4141 (14 July 1959), 18, 25. U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.10 (10 September 1962), 45 (Soviet Union); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.24 (22 November  1963), 12 (United States), 27–30 (United Kingdom), 38–41 (Japan); U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1342, 1344 (2, 4 December  1963), 17 (United States), 67 (Egypt), 76 (United Kingdom), 173 (Belgium), 175 (Japan); Dean Rusk, Telegram from the Department of State to the Embassy in Japan, 13 November  1963, available at https://history.state.gov/ historicaldocuments/frus1961-63v25/d431. U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1342 (2 December  1963), 41 (Soviet Union), 76–77 (United Kingdom); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.24 (22 November 1963), 12–13 (United States), 21 (Australia), 25–26 (France). U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.24 (22 November 1963), 13 (United States); U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5549 (24 September 1963); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.10 (10 September 1962), 44 (Soviet Union). U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1343, 1346 (3, 5 December 1963), 169 (Hungary), 189 (Canada). U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.24 (22 November 1963), 22–23 (Australia), 23–24 (France); U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1343, 1345 (5 December  1963), 168 (India), 183 (France); U.N. First Committee, 18th Sess., Verbatim Records, U.N. Docs. A/AC.1/ PV.1342 (2 December 1963), 66 (Egypt); U.N. COPUOS Legal Sub-Committee, Summary Records. U.N. Docs. A/AC.105/C.2/SR.57–59, 61 (12–14, 18 July 1966), Statements by Australia, Austria, Bulgaria, and France; U.N. GAOR, 18th Sess. 1280th plen. mtg., U.N. Doc. A/PV.1280 (13 December 1963), 1–2 (Costa Rica).

6 The outer space treaty

A pause in the development of outer space law ensued after the assassination of President Kennedy and the adoption of the Declaration of Basic Principles. From 1964 to 1965, a crisis that threatened the United Nation’s existence hampered the work of the Committee on the Peaceful Uses of Outer Space. During the same time period, the United States made great strides toward a moon landing. By the end of 1965, the United States was so confident that it would land on the moon that it proposed a new treaty to govern the moon and other celestial bodies. The COPUOS expanded the proposal to include outer space, giving the eventual treaty the colloquial name, the Outer Space Treaty. Negotiations moved rapidly, and the United Nations completed work on the treaty by the end of 1966.

Prelude to a treaty The United Nations created a great deal of the basic framework for outer space law by the end of 1963. The accomplishment was impressive considering that the first satellite had been launched only six years earlier, and when President Kennedy declared to the U.N. General Assembly on September 25, 1961, that “[a]s we extend the rule of law on earth, so must we also extend it to man’s new domain – outer space,” there was still no written law on outer space. Two years after President Kennedy’s statement, three United Nations resolutions and a treaty provided the basic rules. On December 20, 1961, the United Nations adopted Resolution 1721 (XVI), which declared that space and celestial bodies are not susceptible to territorial claims and that international law applies. On August 5, 1963, the Soviet Union, the United Kingdom, and the United States signed the limited test ban treaty prohibiting nuclear tests in space. On October 17, 1963, the United Nations adopted Resolution 1884 (XVIII) banning the emplacement of weapons of mass destruction in space. Finally, on December 13, 1963, the United Nations adopted the Declaration of Legal Principles. Upon the adoption of the Declaration, U.S. Ambassador Adlai Stevenson remarked upon the tone set by the new laws of outer space to the U.N. General Assembly. He compared the Space Age to the Age of Discovery, when the world’s then-superpowers Portugal and Spain had divided the Western hemisphere among themselves. Plundering, nationalistic competition, and imperialism then ensued in

106  The outer space treaty a scramble for resources. The Declaration and other laws of outer space showed that a different path would be taken in the Space Age. The focus would be on international cooperation. Discovery no longer meant conquest.12 The COPUOS’s work, however, was far from over. In the very next resolution after adopting the Declaration, the U.N. General Assembly directed the committee to continue to study and report on legal problems, and to “draft international agreements on liability for damage caused by objects launched into outer space and on assistance to and return of astronauts and space vehicles.” When the COPUOS met in 1964, the committee decided as a first step to determine what its next priority should be in the development of space law. In accordance with the General Assembly’s instructions, the majority of the committee assumed that the next topic would either be an agreement on the rescue of astronauts and return of space objects or a convention on liability for space vehicle accidents. To the surprise of many, the Soviet Union again said that basic legal principles were the committee’s priority. The Soviet Union wanted to convert the nonbinding Declaration into a binding treaty. The Soviet representative noted that among the General Assembly’s instructions was a comment for the COPUOS to consider “in international agreement form, in the future as appropriate, legal principles governing the activities of States in the exploration and use of outer space.” Further, drafting a treaty would give the COPUOS the opportunity to clarify many of the principles in the Declaration and to address other principles that had been left out. For example, Resolution 1884 (XVIII) banned weapons of mass destruction in space, but that should be reflected in a binding treaty. The Soviet Union also noted that the operation of private entities in space required further regulation. For example, that year in 1964, the United States and 15 other mostly Western European nations established the International Telecommunications Satellite Organization, or INTELSAT. INTELSAT was to design, build, and launch the world’s first global communication satellite system. Though the Declaration made states responsible for nongovernmental entities and international organizations in space, the law was unclear on a case like INTELSAT, which was partly an intergovernmental organization mixed with private ownership. Other topics, such as the dissemination of propaganda and intelligence gathering in space, also needed to be addressed.3 The COPUOS rejected the Soviet suggestion and focused instead on rescue and liability. The Western delegates felt, not unfairly, that the Soviet Union had its turn to have its interests heard when the committee focused on writing the Declaration. Moreover, working on a treaty for basic principles so soon after the Declaration reopened arguments that threatened to paralyze the committee. For example, Third World nations wanted to revisit a total ban on the military use of outer space in a basic principles treaty, a proposition the superpowers had already soundly rejected. The COPUOS, under the rule of consensus, accordingly turned to other matters that had no opposition. A crisis began to emerge at the United Nations, however, that hampered the COPUOS’s work in 1964–65. This crisis had its origins in the Congo Crisis, which resulted in the deployment of the largest U.N. peacekeeping force in history at the

The outer space treaty 107 time. That crisis, beginning in July 1960, would not run its course until 1965. During this timeframe, the United Nations’ intervention placed an enormous strain on the organization’s budget. Even without the cost of the intervention, the United Nations faced chronic budget shortfalls in its early years due to the failure of members states to pay dues. The Congo Crisis exacerbated that problem when some states withheld some or all of their dues because they opposed the U.N. intervention. Chief among these states were France and the Soviet Union. By December 1964, the outstanding dues from France and the Soviet Union led the United States to invoke Article 19 of the U.N. Charter, which states that a member whose outstanding dues exceeds two years of contributions “shall have no vote in the General Assembly.” The invocation of Article 19 led to a standoff at the United Nations. The United States argued that the vote-loss sanction was automatic, so France and the Soviet Union could not vote until they paid their dues. The Soviet Union argued that the sanction required the General Assembly to vote to affirmatively revoke a member’s right to vote. The United Nations could not proceed with any vote without first resolving whether France and the Soviet Union could vote. If France and the Soviet Union could not vote, there was a risk that two of the five veto-wielding Security Council members would withdraw from the organization. Memories of Germany and Japan walking out on the League of Nations before the Second World War came to mind. To prevent a potential collapse of the United Nations, the organization avoided voting on anything. The result was that the United Nations addressed only uncontroversial housekeeping matters that did not require a vote, such as filling vacancies on committees, between 1964 and 1965. Because the General Assembly was unable to act on the substantive work of any of its committees, such as the COPUOS, these committees met only for a limited amount of time, if they met at all. The COPUOS Legal Subcommittee, for example, only met for 10 days in 1965, compared to its usual sessions that last for a month or longer. The Technical Subcommittee’s session was canceled altogether. The only formal vote held by the United Nations in 1964 was a bid by Albania to return to normal voting procedures. This was defeated 97 to 2, with only Albania and Mauritania in favor. The impasse ended only on August 16, 1965, when U.S. Ambassador to the United Nations Arthur Goldberg conceded that the United Nations would not apply the Article 19 lossof-vote sanction.4 One thing that the United Nations did accomplish in 1965 was the appointment of a new chairman to the COPUOS, Kurt Waldheim of Austria. Franz Matsch, also of Austria, had served as chairman until this time. To maintain the Cold War balance of the committee, the United Nations decided that the chairman should continue to be someone from neutral Austria. Waldheim was certainly a neutral figure and known for his pliancy. He had a very successful career as a diplomat, eventually rising to Secretary-General in 1971. His elevation to that office, however, became a source of embarrassment when it became public knowledge that the U.N. War Crimes Commission had charged him with facilitation of genocide in 1948. The basic allegations were that he had, as a German intelligence officer

108  The outer space treaty in the Balkans, prepared situation reports that allowed civilians to be shipped to concentration camps. The charges against Waldheim may have been politically motivated and forgotten when the political situation changed, but the fact that the charging document had been overlooked in the United Nations’ own archives while he served as secretary-general was discomfiting. Curiously, Manfred Lachs, Chairman of the Legal Subcommittee, worked at the U.N. War Crimes Commission. If he had any involvement in Waldheim’s case or knew of it, he gave no indication.5 While the COPUOS’s progress on writing the law of outer space became hobbled by the situation at the United Nations, the Soviet Union and the United States were accomplishing dramatic new feats in outer space. The United States showcased one such feat at the COPUOS on October 7, 1965, when astronauts Edward White and James McDivitt presented the committee with a flag of the United Nations that had been carried aboard their Gemini spacecraft four months earlier during the first American spacewalk. The superpowers were beginning to master manned spaceflight in low earth orbit between 1964 and 1965, and these were the years when the United States overtook the Soviet Union in the Space Race.6 The United States took the lead in the Space Race under the Gemini program. NASA officially began the Gemini program in December  1961. The goal was to develop a second-generation, two-man spacecraft to replace the single-seater Mercury spacecraft. Gemini was a steppingstone to test new technologies and gain experience operating in outer space that would be needed for an eventual mission to the moon. The Gemini program would prove the feasibility of rendezvous in space, test how humans reacted long-term in zero-g, experiment with spacewalks, and provide opportunities to learn to land a spacecraft with precision. Trapped between the excitement of the Mercury program, which put the first Americans into space, and the Apollo program, which put Americans on the moon, the Gemini program was like the middle child that did not receive enough attention. Though the moon landing would not have been possible without it, the government often cut its funding in favor of the Apollo program. By far the most important goal of the Gemini program was mastery of orbital rendezvous. By its simplest terms, a rendezvous is two spacecraft meeting in space. But it is not simply having the two spacecraft intersect with one another. That is a relatively easy task and can be achieved by setting a collision course. A true rendezvous refers to the controlled flight of a spacecraft to achieve the same orbital path as another spacecraft and, when the two are in close proximity to one another, have no relative motion between them. Rendezvous has been achieved when the spacecrafts travel together without further course change. Rendezvous is a critical skill needed for advanced space activities, such as docking to build a space station. Any long-term space program requires mastery of rendezvous. Rendezvous was also an absolutely necessary skill if NASA was to land on the moon before the end of the decade as President Kennedy had laid out. NASA initially calculated that for a rocket to carry humans to the moon and back, the rocket would have to put out a gargantuan 12 million pounds of thrust. For reference, the Saturn V rocket, which did carry humans to the moon and back, put out

The outer space treaty 109 7.5 million pounds of thrust. Even today, NASA’s Space Launch System to return to the moon under the Artemis Program will only put out 8.8 million pounds of thrust. NASA determined that a moon landing before the end of the decade would be possible only with a less powerful rocket coupled with rendezvous. NASA explored two options. The first option was earth orbital rendezvous or EOR. This plan essentially involved building a spacecraft in orbit through multiple launches. Once the segments of the spacecraft were complete, they could be docked and the journey to the moon and back could begin. EOR, however, presented significant problems. Because each mission to the moon would require multiple launches to build a single spaceship, there was a risk of delay. Each launch takes time to prepare. Safety and quality control hurdles must be passed each time. Then there would be weather delays, a not insignificant issue at Cape Canaveral. Each launch also carried a risk of failure. And more launches meant higher cost. The option NASA eventually chose was lunar orbital rendezvous or LOR. This plan called for two spacecraft launched on the same rocket: a command module and a lunar lander. Once the spacecraft reached lunar orbit, the lander would detach from the command module and land on the moon. Once the lunar surface mission was complete, the lander would return to lunar orbit and rendezvous with the command module. The astronauts and their cargo would then transfer to the command module, and the lander would be jettisoned before the command module made the journey home. Under this approach, the lander would not waste fuel carrying equipment to the moon’s surface that had to be brought back to lunar orbit for the journey home. This plan had its own risks, such as the morbid chance that, if rendezvous failed, there was little that could be done to bring the astronauts on the lander home. An astronaut in the command module would be left with the agonizing decision to stay in lunar orbit to watch his colleagues starve and risk the same fate or to leave them behind. The plan would also require NASA to commit resources to develop two spacecraft, but NASA had already concluded that a single all-purpose spacecraft and lander was too complicated. There was also a major upside to LOR. It meant a moon landing could be done with the single launch of a Saturn V rocket.7 The Soviet Union also appreciated the importance of rendezvous and tried to beat NASA to achieving that feat first. In August 1962, the Soviet Union launched Vostok 3 and Vostok 4 in close succession, thus taking the title for first multispacecraft mission. Because the spacecrafts had been launched near in time and from nearly the same place, they flew in a similar trajectory and close to one another in orbit. Neither craft, however, could maneuver. In June 1963, the Soviet Union repeated the feat with Vostok 5 and Vostok 6. To add something new, this time the Soviet Union launched the first woman, Valentina Tereshkova, aboard Vostok 6. Like the first dual launch, these two spacecrafts could not maneuver. Although the Soviet Union billed these Vostok missions as “rendezvous” missions, they do not qualify. The fact that the spacecrafts could not maneuver alone disqualifies their candidacy as rendezvous missions. All that the Soviet Union had done was launch two objects from nearly the same place in quick succession.

110  The outer space treaty It is not surprising that the objects would travel in similar trajectories under this situation. Neither set of missions gave the Soviet Union any experience in terms of navigating in space.8 NASA, meanwhile, was almost ready to begin manned Gemini missions by the end of 1964. On April 8, 1964, NASA launched Gemini I as a first unmanned test. The test was critical for confirming that the Titan-II rocket, which lifted the spacecraft, was “man-rated” for Gemini. With the test a success, NASA began planning a second unmanned launch before proceeding with the manned missions. The preparation of the second spacecraft, however, took more time than anticipated, and hurricane weather in Florida added to the delay. The result was that the first manned mission would not occur until early 1965.9 The Soviet Union took advantage of the delays to upstage NASA with the Voskhod missions. On October 12, 1964, the Soviet Union launched Voskhod 1, which carried three cosmonauts: Vladimir Komarov, flight commander; Boris Yegorov, a physician; and Konstantin Feoktistov, the engineer. This mission claimed the title of first multi-crewed spacecraft, denying the United States that anticipated title with the launch of the two-person Gemini spacecraft. On March 18, 1965, the Soviet Union launched Voskhod 2 with cosmonauts Aleksey Leonov and Pavel Belyayev. This mission laid claim to the first spacewalk in history when Leonov donned his spacesuit and exited his spacecraft through an airlock. This mission was timed so that it occurred just months before NASA’s own anticipated spacewalk. Although the two Voskhod missions appeared to show that the Soviet Union maintained the lead in the Space Race, the Soviet Union’s lead was in fact superficial. The Soviets called the spacecraft in these missions the Voskhod to give the impression that, like the United States, it had developed a second-generation, multi-crew spacecraft. In fact, the Voskhod was the same spaceship as the Vostok that carried Yuri Gagarin into orbit in April 1961. This meant the Soviet Union’s capabilities in human spaceflight remained limited. For example, the Voskhod still could not maneuver just like the Vostok, and unlike Gemini. In addition, in order to fit three cosmonauts on Voskhod 1, equipment had to be removed, and the cabin became so cramped that none of the cosmonauts could wear a spacesuit. Thus, for Voskhod 2, the Soviets had to remove one cosmonaut to make room for a spacesuit to conduct the first spacewalk. The development of the Soviet Union’s real second-generation spacecraft, the Soyuz, was far behind schedule and would not launch until 1967. The engineers working on Soyuz complained that the Voskhod missions, especially Voskhod 1, had simply been a waste of time that diverted resources from Soyuz and had been done only at the request of politicians. The Soviet Union’s effort to maintain a superficial lead in space also nearly ended in disaster on multiple occasions during the Voskhod 2 mission. Because the Voskhod – really a Vostok – had never been designed to operate in a vacuum, Soviet engineers built an inflatable airlock to create a separate chamber that could be depressurized before conducting the planned spacewalk for Voskhod 2. Otherwise, the internal pressure of the spacecraft would have made the hatch difficult to open, and the contents of the cabin would have been blown out the door. This was

The outer space treaty 111 in contrast to Gemini, which had been designed with a spacewalk in mind, and the entire cabin could be depressurized. During the Voskhod 2 mission, Leonov successfully exited the spacecraft through the airlock, but problems began when he tried to reenter the spacecraft. His spacesuit had ballooned in the vacuum of space, and his mobility became limited as his gloves and boots moved away from his hands and feet. Though he had been instructed to enter the airlock feet first, so he would not have to do a somersault before taking his seat in the spacecraft, his limited mobility left him no choice but to enter headfirst. Once in the airlock, he tried desperately to turn around, and he became exhausted and drenched in sweat. He eventually managed to repressurize the airlock and return to his seat in the spacecraft. But the Voskhod 2’s problems continued after the spacewalk. The crew ejected the airlock after the spacewalk, and the force of the ejection caused the spacecraft to spin. The crew, however, had to save fuel and could not correct the spin until shortly before reentry. Then the crew realized the spacecraft was leaking oxygen because the hatch had not been fully closed after the spacewalk. To maintain cabin pressure, the spacecraft’s automatic systems released more oxygen. This created a new risk of fire as oxygen levels reached 45% of the atmosphere. Then ground control told the crew that automatic reentry was not working. The crew would have to prepare for manual reentry. Because the spacecraft was not originally designed for two people, to pilot the spaceship, Belyayev had to lay across both seats in the cabin to operate the controls while Leonov held him in place from under the seat like a human seatbelt. After orienting the ship for reentry, the cosmonauts rushed to get back to their seats, but in their bulky spacesuits, this took 46 seconds. By the time they fired the engine for reentry, they had overshot their intended landing site. Reentry occurred at a steeper angle than planned when the instrument compartment of the spacecraft failed to detach. The g-forces caused the blood vessels in the men’s eyes to burst. Voskhod 2 ultimately landed 386 km (240 miles) off target in the middle of a Siberian forest, where helicopters could not land, and ground recovery teams could not find them until nightfall. Hiding from wolves and starting a fire to stay warm, the cosmonauts were finally retrieved from the site two days after landing. The Voskhod missions proved to be the Soviet Union’s high point during the Space Race. To the public, the Soviet Union was still doing well because it of course did not inform the public of the many near disasters of the Voskhod 2 mission. The Soviet Union also patently lied by stating that the spacecraft was capable of maneuvering in space. But for the next two years, the Soviet Union would not launch a single human into space as it focused on completing the Soyuz spacecraft. And when the first manned Soyuz mission was undertaken in 1967, that mission resulted in the first death of an astronaut aboard a spacecraft in operation. While the Soviet Union’s star began to ebb, NASA’s was just beginning to rise. On March 23, 1965, five days after the Voskhod 2 mission, NASA began a series of manned Gemini missions. Over the course of the next 20 months between March 1965 and November 1966, NASA conducted 10 manned missions, more than all prior manned Soviet missions up to that time.10 The first mission, Gemini

112  The outer space treaty III, with Virgil “Gus” Grissom and John Young was the first American multicrew mission. Having flown on a Mercury spacecraft, Grissom also became the first person to return to space. The mission achieved another first when Grissom maneuvered the spacecraft and changed its orbit from elliptical to nearly circular. He then changed the spacecraft’s orbital plane. The second mission, Gemini IV, on June 3, 1965, launched with James McDivitt and Edward White. These were the men who later presented a U.N. flag carried aboard their spacecraft to the COPUOS. White conducted America’s first spacewalk during a live broadcast that entranced the world. When he was ordered back into the spacecraft, he could be heard saying, “It’s the saddest moment of my life.” As the Gemini missions picked up speed, NASA began taking steps toward the mastery of orbital rendezvous. During Gemini IV, McDivitt had tried to rendezvous with the booster rocket that had carried the spacecraft, but he found the booster seemed to move down and away from him each time he tried to approach. After the Gemini IV mission ended, NASA examined orbital mechanics more closely in anticipation of a rendezvous attempt during Gemini V. The realization dawned that rendezvous could not be achieved in orbit by simply pointing at a target and traveling in a straight line toward it as on the earth. Increasing speed increases orbital altitude. This was why McDivitt saw the booster move down and away from him. The solution was, paradoxically, to slow down. This would put the spacecraft into a lower orbit on an inside track, allowing it to close with the target. Once the distance had been closed, the spacecraft could increase speed to enter the same orbital altitude as the target. This is like two cars on a circular track; the car traveling on the inside track can gain on the car traveling on the outside track. On the next two Gemini missions, NASA attempted to conduct a rendezvous, but mishaps kept delaying the achievement. On August 21, 1965, Gordon Cooper and Pete Conrad launched aboard Gemini V. One of their tasks was to rendezvous with an evaluation pod jettisoned from the spacecraft. Unfortunately, the pod was lost after a power failure, but Cooper was able to practice “phantom” rendezvous by identifying a set of coordinates and learning to navigate toward them. On October 25, 1965, NASA was set to try another rendezvous attempt with Gemini VI. The plan was to launch a target vehicle, known as Agena, into orbit followed quickly by the launch of Gemini VI. Gemini VI would then navigate to and dock with the Agena. Shortly after launch, however, the Agena exploded, and NASA scrubbed the Gemini VI mission. From the failure of the Agena came the most daring of the Gemini missions and the achievement of rendezvous. By this time, NASA had achieved a steady clip of one launch every two months. As a result, when Gemini VI was scrubbed, Gemini VII was nearly ready to launch. NASA decided that rather than conducting a rendezvous with a target vehicle, a rendezvous could be done between two Gemini spacecraft instead. Serendipitously, Gemini VII’s primary mission was a long-duration 14-day flight. This gave NASA the greatest amount of time possible to reprepare the launchpad for second launch of what was now being dubbed Gemini VI-A while Gemini VII was still in orbit. On December 4, 1965, Frank

The outer space treaty  113 Borman and James Lovell went into orbit aboard Gemini VII. On December 13, 1965, Wally Schirra and Thomas Stafford followed on Gemini VI-A. After executing over six hours of maneuvers, Schirra brought Gemini VI-A into contact with its sistership. The two spacecrafts closed to within 40  m and traveled together with no relative motion between them. The first orbital rendezvous was finally achieved, rather appropriately, by identical spacecraft under a program named Gemini, the astrological sign for twins.11 The United States also took the lead in the Space Race in 1965 because NASA had solved a key engineering hurdle to reaching the moon: a new rocket engine. NASA calculated that to reach the moon, it needed a rocket engine that could put out 1.5 million pounds of thrust. This was a daunting task. When President Kennedy declared that the United States would land on the moon by the end of the decade, the most powerful rocket engine in the American arsenal was the H-1, which only put out 188,000 pounds of thrust. The new rocket engine that NASA needed, dubbed the F-1, would be a quantum leap in rocket engine technology. NASA encountered numerous technical challenges developing the F-1. The most difficult of these was combustion instability. Combustion instability occurs due to the uneven burning of fuel in the combustion chamber. A part of the chamber receiving more fuel can burn hotter than the rest of the chamber. At the temperatures at which rocket engines operate, this can create uneven pressure, leading to reverberations that can destroy the engine. The size of the F-1 exacerbated this problem. The F-1 was so powerful that it generated sound waves that disrupted the burning process. Moreover, no one understood what caused combustion instability or, more importantly, how to stop it. NASA initially tried to manage combustion instability through modifications to the injector plate. This plate is a circular slab of metal with holes drilled into it. On the F-1, the slab was three feet in diameter, four inches thick, weighed over 1,000 pounds, and had 6,300 holes in it. As fuel pumps bring liquid oxygen and kerosene into the combustion chamber, the two propellants hit the injector plate, and the holes on the plate create fanshaped sprays that distribute the fuel in the chamber. A pre-burner, or pilot light, ignites the sprays where they meet below the injector plate. NASA focused on modifying the injector plate with different hole patterns in an effort to distribute fuel more evenly, but instability kept emerging. NASA resolved the problem of combustion instability in 1965 by achieving dynamic instability, rather than trying to avoid combustion instability. The goal under dynamic instability was to ensure that the engine could survive instability. Because the F-1 was so large and powerful, eliminating all disturbances was impossible. The solution then was to ensure the engine could survive instability and resume normal operation within 400 ms. To test this, NASA began detonating explosives inside the combustion chamber while the engine ran to see if it could survive combustion instability. By late 1964, tests showed that by lowering the injector plate in the combustion chamber, the engine could survive explosive shocks. By January  1965, the F-1 engine was flight-ready. On April  16, 1965, NASA strapped five F-1 engines on a test stand in Huntsville, Alabama. This was the number of engines on the Saturn V rocket. The test was successful.

114  The outer space treaty The United States was confident by the end of 1965 that a moon landing would happen before the end of the decade. The confidence showed on September 23, 1965. Only a few weeks earlier, the United Nations resumed normal voting when the United States conceded that the loss-of-vote sanction would not apply to France and the Soviet Union. As the United Nations returned to normal, the United States informed the U.N. General Assembly that it would seek a treaty governing the use and exploration of the moon and other celestial bodies through the COPUOS. On October 5, 1965, the United States informed the COPUOS that it would submit a draft of the treaty the following year.12

Outlining the treaty On May 9, 1966, the United States submitted a letter from President Lyndon B. Johnson to the United Nations proposing that the organization draft a treaty to govern the moon and celestial bodies. The purpose was to “ensure that exploration of the moon and other celestial bodies will be for peaceful purposes only.”13 The essential elements of the treaty would guarantee that “celestial bodies are free for exploration and use by all countries;” that no country may lay a claim of sovereignty; that states should avoid harmful contamination; that astronauts be given assistance when in distress; and that weapons of mass destruction, weapon tests, and military maneuvers shall be forbidden on celestial bodies.14 The United States’ first goal was to assess whether there was interest in the proposed treaty. The task of making this assessment and negotiating fell to U.S. Ambassador to the United Nations Arthur C. Goldberg. Ambassador Goldberg began by sounding out the interest of the Soviet Union. As the only other nation capable of reaching the moon and other planets at the time, any treaty governing celestial bodies that did not have the Soviet Union’s support was virtually meaningless. On May 11, 1966, two days after President Johnson’s letter to the United Nations, Ambassador Goldberg sought a meeting with his counterpart Soviet Ambassador to the United Nations Nikolai Fedorenko. Ambassador Goldberg wanted to outline the articles that the United States would propose for the treaty in more detail, while still steering clear of minutiae. Ambassador Goldberg also prepared to meet with Chairman Waldheim and other members of the COPUOS with the assistance of Leonard Meeker, the United States’ usual representative at the committee, to gauge the interest of other nations. Within a few weeks, the Soviet Union signaled its interest in a treaty governing other celestial bodies. On May  30, 1966, the Soviet Union sent its own open letter to the United Nations, which called upon the organization to draft “an international agreement on legal principles governing the activities of States in the exploration and conquest of the Moon and other celestial bodies.” The letter, however, was not a response to President Johnson’s letter. The Soviet Union did not even acknowledge the American proposal. Instead, the Soviet Union claimed to be proposing the treaty because the recent success of Soviet lunar probes, such as Luna 9 and Luna 10, which “demonstrated the real possibility of man’s conquest of the Moon in the very near future.” Luna 9 had made the first soft landing

The outer space treaty 115 on the moon, and Luna 10 became the moon’s first artificial satellite. Although the Soviet letter did not acknowledge the American proposal, the Soviet Union did share the same goal as the United States. The Soviet Union stated that the purpose was to ensure that the exploration of celestial bodies would be “carried out in the interests of peace and progress exclusively, for the benefit of all mankind.” A key component was therefore a ban on “the use of the Moon and other celestial bodies for military purposes.”15 The Soviet Union and the United States each submitted a draft treaty to the United Nations for consideration on June 16, 1966. The two drafts confirmed that the superpowers had many overlapping interests and that an agreement was likely possible. Both proposals guaranteed the freedom to use and explore outer space, prohibited territorial claims, extended international law to space, banned weapons of mass destruction and military maneuvers, provided jurisdiction over spacecraft, required assistance to astronauts in distress, mandated that states avoid harmful contamination, and required the peaceful settlement of disputes. Although each draft captured these principles in a slightly different language, the essentials were the same. The fact that negotiations started from a point of general agreement was due very much to the adoption of the Declaration of Legal Principles in 1963. Many of the principles that the two superpowers now proposed were reflected in that document. Although both the Soviet Union and the United States were interested in a treaty for the same reasons and began generally from a point of agreement, they had different expectations as to when the treaty should be completed. The United States was candidly eager to finalize the treaty as soon as possible. For example, the United States submitted its draft to the COPUOS, and Ambassador Goldberg consulted with Chairman Waldheim and the committee to seek an early meeting of the Legal Subcommittee. The aim was to finalize the treaty by the end of the COPUOS’s session in the summer so that the U.N. General Assembly would have ample time to endorse the document in the fall. Indeed, once the United States saw how similar the Soviet proposal was to its proposal, the Johnson Administration became concerned not about the substance of the treaty but that the talks “could easily get tied up in the prolonged negotiations over the details of the wording.” As a result, the White House instructed Ambassador Goldberg to surrender “pride of authorship” and to allow the Soviets to use their language if there was no substantive difference in the effect of the treaty. The Soviet Union, on the other hand, submitted its draft to the U.N. General Assembly, which would not convene until September 1966. This suggested the Soviet Union did not expect a final draft until near the end of the year, and indeed, the Soviets did little to move negotiations along rapidly.16 On July 12, 1966, the COPUOS Legal Subcommittee met in Geneva. The subcommittee agreed to set aside its pending work on an agreement on the rescue and return of astronauts in distress and a convention on liability caused by space objects. The subcommittee’s sole focus that year was a treaty governing the moon and other celestial bodies. Members of the Legal Subcommittee appreciated the historic nature of their work that year. Ambassador Goldberg’s personal attendance at the Legal

116  The outer space treaty Subcommittee emphasized the seriousness of the negotiations. In all prior Legal Subcommittee meetings, the United States had been represented only by a State Department legal adviser or NASA general counsel. To have the U.S. Ambassador to the United Nations, one of the most senior officials in the diplomatic corps, in attendance sent a powerful message. Ambassador Goldberg was also an impressive figure and one of the best minds that could have been sent to negotiate the treaty. His last job before becoming ambassador was associate justice of the U.S. Supreme Court, a lifetime appointment that he resigned to accept the ambassadorship. He had a sharp legal mind aptly suited to the discussions in the Legal Subcommittee. As a diplomat, Ambassador Goldberg also had a reputation for being highly prepared, knowledgeable, and honest. Other dignitaries not usually at the Legal Subcommittee also made an appearance, which served to further emphasize the importance of the subcommittee’s work that year. Among these were Chairman Waldheim, who chaired the parent committee. He took the rare step of giving opening remarks at the Legal Subcommittee’s first session. Chairman Waldheim commented that humanity appeared to be close to a landing on the moon, and this development underlined the need for laws governing the moon and other celestial bodies before that moon landing happened. A representative from U.N. Secretary-General U Thant’s office, Constantin Stavropoulos, was also present and similarly gave opening remarks that focused on the pioneering nature of the subcommittee’s work that year. The atmosphere of the Legal Subcommittee was generally convivial. The only dark spot was a few Cold War barbs between the Soviet Union and the United States in their opening statements as each nation tried to frame itself as the key protagonist behind the development of outer space law. Soviet Ambassador Platon Morozov and Ambassador Goldberg began by recounting a history of the committee’s work, with each emphasizing the central role of their own nation. Apparently upset with the American version of events, Ambassador Morozov tried to rattle Ambassador Goldberg by criticizing the United States’ intervention in Vietnam. Ambassador Goldberg politely but firmly responded that Vietnam was a matter under discussion in other U.N. bodies. He then critiqued Ambassador Morozov’s version of history by noting that it had omitted a crucial point  – the Soviet Union’s boycott of the ad hoc COPUOS in 1959. This comment apparently riled Ambassador Morozov, who demanded that Ambassador Goldberg’s statement be “expunged” from the record. The rest of the subcommittee ignored the exchange, and the remainder of the Legal Subcommittee’s session was far more productive. There was some tussling over how the Legal Subcommittee’s discussion should proceed. The Soviet Union, seeking to claim credit for the first treaty on outer space, stated that its draft should be taken as the basis for discussion while promising to show “goodwill” in consideration of the American draft. Ambassador Goldberg objected that the proper procedure was to examine the American and Soviet drafts concurrently. India, speaking up for the Third World, noted that the discussions should not simply focus on the interests of the superpowers. There should be a concurrent review of the two drafts along with any proposals that other delegates may have. Chairman Lachs took the approach suggested by India

The outer space treaty 117 and facilitated the subcommittee’s discussion by organizing the articles in the two drafts and other proposals into related topics so that the subcommittee could discuss one topic at a time.17 Before turning to specific articles, the first substantive matter that the Legal Subcommittee had to address was the treaty’s cope. The United States had proposed a treaty that governs only the “moon and other celestial bodies.” Although the Soviet Union initially proposed the same scope, the draft it submitted to the Legal Subcommittee expanded the treaty to include “outer space, the moon, and other celestial bodies.” The overwhelming reaction of the Legal Subcommittee was to favor the expanded scope that included outer space. After reviewing the American draft, the subcommittee was virtually unanimous that there was no reason why the elementary principles proposed in the draft should not apply to outer space and celestial bodies. Ambassador Goldberg quickly acceded to the expanded scope. In this way, the proposal became known as the “outer space treaty.” One question that emerged in relation to the discussion on the scope was what the treaty meant by “celestial bodies.” At minimum, celestial bodies certainly refer to other planets and moons, but there could be an ambiguity as to whether smaller bodies, such as asteroids, comets, and meteors, are also celestial bodies. Though the Legal Subcommittee did not explicitly address this point, the subcommittee’s discussions indicate that even smaller bodies fall within the scope of the treaty. For example, at one point, India suggested that the treaty should refer only to outer space and not celestial bodies. Celestial bodies such as the moon are “in” outer space, so it appeared redundant to refer to both outer space and celestial bodies. Other delegates responded that India’s point was simply a drafting issue. The consensus was that the treaty applies to everything beyond the earth. In light of the subcommittee’s expansive view, it would appear that celestial bodies under the treaty include any object besides the earth that is native to outer space, except items like meteorites that reach the earth by natural means.18 The first set of articles that the Legal Subcommittee discussed concerned disarmament. The focus on these articles was natural as both the Soviet Union and the United States said the reason for the treaty was to reserve celestial bodies for peaceful purposes. Ambassador Goldberg reiterated during the Legal Subcommittee meetings that the “central object” of the treaty was to “ensure that outer space and celestial bodies were reserved exclusively for peaceful activities.” Ambassador Goldberg’s statement did have some irony. When the United States first proposed establishing the COPUOS in 1958, the words “peaceful uses” had been added to specifically exclude issues of disarmament from the committee’s terms of reference. Now the United States made disarmament the central objective of the committee’s first treaty on the law of outer space. The Legal Subcommittee discussed three articles designed to implement disarmament measures in outer space. All three had been proposed by the United States, with the Soviet Union introducing proposals that overlapped with two of the American articles. Ambassador Goldberg explained that the articles in the American draft had been lifted from the Antarctic Treaty of 1959, which had demilitarized that continent. The three articles would (1) declare that celestial

118  The outer space treaty bodies shall be used only for peaceful purposes, (2) require states to provide free access to all facilities on celestial bodies, and (3) create a duty to report on the results of missions on other celestial bodies. The first disarmament article was simply to declare that celestial bodies shall be used for peaceful purposes only. The American draft bluntly stated, “Celestial bodies should be used for peaceful purposes only.” The Soviet draft had an equally straightforward statement that “celestial bodies shall be used exclusively for peaceful purposes.” The same approach had been taken in Article I  of the Antarctic Treaty, which states that “Antarctica shall be used for peaceful purposes only.” Like the Antarctic Treaty, the Soviet Union and the United States also explicitly banned several non-peaceful activities. These included the building of military fortifications, testing weapons, and military maneuvers. A significant caveat in the superpowers’ proposals, however, was that only celestial bodies are reserved for peaceful purposes. Demilitarization would not apply to space. The other members of the Legal Subcommittee severely criticized the American and Soviet proposals for limiting demilitarization only to celestial bodies. Without a similar principle for outer space, conflict in orbit was a real possibility. The only limitation on the military use of outer space was a ban on the emplacement of weapons of mass destruction under the nonbinding U.N. Resolution 1884 (XVIII). The Soviet Union and the United States were willing to make Resolution 1884 a binding obligation under the Outer Space Treaty. But, for many members of the Legal Subcommittee, this did not go nearly far enough. The use of outer space for military purposes remained a serious danger. At the time, an especial source of apprehension was the Soviet Union’s research into a fractional orbital bombardment system or FOBS. The goal of the fractional orbital bombardment system was to evade radar and antimissile defense systems. The FOBS would do this by launching missiles on low orbital trajectories that dropped on a target before completing a full orbit. Unlike a traditional intercontinental ballistic missile, which travels in a high parabolic trajectory, the FOBS would keep missiles at a low altitude. This meant radar would not be able to detect the missiles until much later, when anti-missile defense systems might not be able to respond in time. Because the missile under the fractional orbital bombardment system never completed a full orbit, it was technically in compliance with U.N. Resolution 1884 (XVIII), which only banned the stationing of weapons of mass destruction in outer space. For the non-superpower states, the FOBS demonstrated precisely why stronger prohibitions were needed on the military use of outer space. The archenemies of the Cold War, however, stood firm together against the demilitarization of outer space. Certain military uses of space, such as reconnaissance and communication satellites, were too critical for either side to give up. Ambassadors Goldberg and Morozov urged the Legal Subcommittee to accept that demilitarization of celestial bodies was the most that could be achieved. Ambassador Goldberg urged the subcommittee to focus on “practical solutions” and issues that had a “genuine prospect” for agreement, not an idealized result. In the end, the rest of the subcommittee had no choice but to accept limited demilitarization.

The outer space treaty 119 It remained true that any agreement on the law of outer space without the support of both superpowers was meaningless. The United States sought one clarification on the demilitarization of celestial bodies. Ambassador Goldberg asked that the treaty specifically permit the use of military equipment and personnel for scientific research or other peaceful purposes. The clarification was necessary because, at the time, all astronauts were members of the military. Some equipment, such as a rocket, could also be interpreted as a military equipment. A similar exception had been written into Article I of the Antarctic Treaty. There was little opposition to the American proposal, but the Soviet Union was hesitant. It did not want to create a loophole. The Soviet Union, however, did not reject the concept; the problem was simply finding mutually acceptable language that captured the idea without creating an unnecessarily large gap in the ban on the military use of celestial bodies.19 The second disarmament article was a requirement that states offer other nations free access to their facilities on celestial bodies. The Soviet draft proposed that “there shall be free access to all regions of celestial bodies.” The United States’ draft contained a similar statement but went further to require that states give access to “stations, installations, equipment, and space vehicles on celestial bodies . . . at all times.” Here too the United States was drawing from the Antarctic Treaty, which guaranteed access not only to “[a]ll areas of Antarctica” but also to “stations, installations and equipment within those areas.” The article in the Outer Space Treaty would serve to facilitate international scientific cooperation by ensuring that scientists had access to areas and resources. The article was also a way to give meaning to the prohibition on territorial claims. Latecomer space powers were guaranteed that they could explore celestial bodies just as freely as other nations, even though existing space powers may have already occupied the celestial bodies by the time of their arrival. The main purpose of the article, however, was to allow states to verify compliance with disarmament. The free access guarantee had been included in the Antarctic Treaty for this purpose as well so that inspectors could confirm that no one was militarizing the continent. A free access provision for facilities on celestial bodies served a similar role. The Soviet Union sought to place some qualifications on the right to access facilities. Ambassador Morozov argued that the free access provision from the Antarctic Treaty could not be applied to outer space without acknowledging the different environments. Astronauts could not open a hatch on a whim to let someone into a base on the moon. The treaty had to account for safety concerns, the needs of the facility’s crew, and the need to maintain normal operations. Any visit required some planning. As a result, Ambassador Morozov rejected the American proposal that access to facilities be provided “at all times.” Instead, access to a facility should be given only “on the basis of reciprocity” and upon mutual agreement. The requirement for “reciprocity” created substantial confusion and was acceptable only depending on word’s precise meaning. Some states asked, for example, whether reciprocity meant a state had to offer access to a facility of its own before it could access another state’s facility. This created problems for

120  The outer space treaty states that did not have their own facility. Ambassador Morozov rather unhelpfully stated that “reciprocity” should be interpreted in the traditional sense of the word. Ambassador Goldberg, however, commented that reciprocity was a term of art under international law. It meant that a state could withdraw a treaty right as a countermeasure for another party’s breach of duty under the treaty. For example, a state may refuse another state access to its facility in response to that state’s failure to consult before conducting a potentially harmful experiment. Ambassador Goldberg was willing to accept the requirement for “reciprocity” on the understanding that it referred to countermeasures available under existing international law. This instance was a prime example of Ambassador Goldberg exercising the discretion that the White House had given him to accept the Soviet language as necessary to reach an agreement if the language made no difference in substance. The Soviet Union’s requirement for “mutual agreement” before giving access to a facility created a divide that was more difficult to bridge. The main purpose of the article was to allow states to verify disarmament. To be effective, visitations had to have some element of surprise so that a state could not hide military activities from inspection. If a formal, bilateral agreement was needed for each visit, there could be unreasonable delay in obtaining access. Ambassador Morozov agreed that an unreasonable time or condition on access “would be a clear violation of the treaty.” Nevertheless, some limitations had to be imposed on access to facilities. Italy and Japan offered a compromise that a state needs to grant access only if it would not endanger experiments, personnel, or normal operations of a facility. By the end of the Legal Subcommittee’s session, there was agreement on the principle of free access and consensus that there could be some limitations on the right to access, but the delegates had not found language describing those limitations that were acceptable to everyone.20 The third disarmament article that the United States sought was a duty to make public the results of activities on celestial bodies. Specifically, the United States wanted states to promptly inform the U.N. Secretary-General of the “nature, conduct, and locations” of the activities and to “make the findings of such activities freely available to the public and the international scientific community.” By requiring states to disclose the nature and location of their activities on celestial bodies, other nations could observe and ask for inspections. The article thus acted as yet another measure to verify compliance with disarmament on celestial bodies. The proposal to disclose the nature and location of activities would also facilitate scientific cooperation. Article III of the Antarctic Treaty contained a similar requirement to exchange information on scientific programs and observations in Antarctica “to the greatest extent feasible and practicable.” The United States’ proposal to share scientific research was consistent with practices incorporated into NASA’s founding statute, the 1958 Space Act. The Act requires NASA to “provide for the widest practicable and appropriate dissemination of information concerning its activities and the results thereof.” NASA followed this dictate even when disclosure of information was harmful to it. For example, NASA broadcasted its intentions throughout the Space Race, even though the Soviet Union used these announcements to upstage the United States. This was seen repeatedly

The outer space treaty  121 with the Soviet Union launching Voskhod 1 to claim the first multi-crewed mission before the United States, and Voskhod 2 to claim the first spacewalk as well after NASA announced its intent to do a spacewalk. NASA even shared highquality photographs of the moon that were better than anything the Soviet Union had. NASA was aware the Soviets might use the photographs to identify lunar landing sides, but NASA officials felt its statute required the disclosure of the photographs. The vast majority of the Legal Subcommittee supported a duty to disclose activities undertaken on celestial bodies and to share scientific research. Delegates commented that the free exchange of information was critical to fulfilling numerous other principles in the Outer Space Treaty and the 1963 Declaration of Legal Principles. Sharing information, for example, would give meaning to the vague requirement that space activities be conducted “for the benefit and in the interests of all countries.” Disclosure of the nature and location of activities would also help to implement the principle of noninterference by allowing the international community to express concerns about potentially harmful interference caused by planned activities. Finally, disclosure would allow states to police compliance with other treaty obligations, such as the duty to register spacecraft and the duty to pay for damage caused by spacecraft. The Soviet Union and Eastern bloc nations were the only states to oppose a duty to disclose activities and to share scientific information. Some of these states argued that creating a legal duty to share information was unnecessary because states generally shared information anyways. In addition, the space powers should have a right to withhold information if that was what they wanted. Hungary, for example, argued that the Soviet Union had made “the greatest sacrifices to promote the exploration of outer space” and accordingly had the right to do what it saw fit with information gathered from its activities. The Soviet Union and Eastern bloc nations argued that the duty to share information should be voluntary only, though that would mean it technically was not a duty. Although the majority of the Legal Subcommittee favored a requirement to share information, no one was willing to risk derailing negotiations on this issue. Some criticized the Soviet Union for declaring that outer space should be used for the “benefit and in the interests of all countries” on the one hand while refusing to share information on its activities on the other. By the end of the Legal Subcommittee’s session, however, Egypt introduced a proposal that states need to provide information only “on a voluntary basis.” Because this proposal signaled that Third World nations would not insist on a mandatory duty to share information, the United States had limited political capital to continue pursuing a mandatory requirement.21 Of the remaining articles to discuss, all but one reflected law that had already been adopted in the Declaration of Legal Principles. This led to some debate as to whether or not the Outer Space Treaty should include the same principles as the Declaration, and if so, in what form. No one disputed that the Outer Space Treaty would be an advancement because the Declaration was a nonbinding U.N. resolution, and the treaty would be binding international law. The main problem was

122  The outer space treaty that the Declaration had been adopted as an aspirational document and many of the principles therein were often imprecise as a result. Austria, for example, noted that the Declaration called on states to treat astronauts as “envoys of mankind,” a requirement that the Soviet Union adopted in its draft of the Outer Space Treaty. But there was no understanding as to what legal obligation that imposed under a binding treaty. While many concepts from the Declaration inspired articles of the Outer Space Treaty, the Legal Subcommittee had to clarify many of those concepts for purposes of a treaty.22 There were three principles from the Declaration that the subcommittee discussed in detail and, in some cases, expanded upon for the Outer Space Treaty. These were (1) the use of outer space “for the benefit and in the interests of all mankind,” (2) the principle of noninterference and the duty to consult prior to conducting a potentially harmful experiment in space, and (3) the duties of international organizations. The first paragraph of the Declaration declared that the exploration and use of outer space must be “carried on for the benefit and in the interests of all mankind.” This aspirational language was a quintessential example of why some states believed the language of the Declaration was too imprecise to be adopted verbatim in the Outer Space Treaty. Argentina and Brazil had first proposed the language found in the first paragraph of the Declaration during the ad hoc COPUOS in 1959. The language was especially important to developing nations, which wanted to prevent the space powers from monopolizing the use of outer space. Egypt went further to suggest the language required the space powers to help developing nations exploit outer space. The Soviet Union supported the position of developing nations by including the language in its draft treaty. But other delegates, especially those from the West, argued the duty to use and explore space “for the benefit and in the interests” of all was far too vague. They suggested the language be moved to the preamble, where aspirational statements are usually collected. Some developing states resisted as they believed that the principle was important and should remain in the body of the treaty, even if the duty was unclear. India, which acknowledged the language was aspirational, suggested a compromise. The obligation to explore and use space for the “benefit and in the interests” of all would remain in the body of the treaty as the first article on the understanding that the first article was only an introduction to other articles in the treaty, similar in effect to a preamble. The Legal Subcommittee adopted this compromise.23 Another principle from the Declaration that required clarification in the Outer Space Treaty was the principle of noninterference. The Declaration required states to engage in international consultations if it “has reason to believe that an outer space activity or experiment planned by it or its nationals would cause potentially harmful interference with the activities of other States.” When the COPUOS included this principle in the Declaration, the purpose had been to address experiments such as the United States’ West Ford Project and nuclear testing in orbit, which had interfered with astronomy and other uses of outer space. As the committee was adopting the Declaration, Canada noted that the principle appeared to

The outer space treaty  123 have a glaring gap. International consultations were required only if there was a potential for interference with another state’s use of outer space. Consultations were not necessary for activities that did not interfere with a state, even if they were nevertheless harmful, such as detonating a nuclear bomb on a remote asteroid or planet. In other words, there was no law protecting the natural environment of outer space or celestial bodies in their own right. In the intervening years between the adoption of the Declaration and the discussion on the Outer Space Treaty, the scientific community grew more concerned about environmental damage caused by outer space activities. In 1964, the Committee on Space Research conducted a study on the possible effects of environmental contamination due to space activities. One focus of the study was on biological contamination of the earth and other celestial bodies because the Soviet Union and the United States had begun sending probes to other planets and the moon. COSPAR submitted a report on its study to the COPUOS Technical Subcommittee. After reviewing the report, the COPUOS concluded that states should avoid “possible harmful changes in the natural environment caused by space activities.” The Legal Subcommittee agreed with the Technical Subcommittee and sought to make protection of the natural environment of outer space an independent legal duty. Both the American and Soviet draft treaties reflected this. The American draft said that nations must “take appropriate steps to avoid harmful contamination.” Meanwhile, the Soviet draft said that states “shall conduct research on celestial bodies in such a manner as to avoid harmful contamination.” Based on these proposals, the Legal Subcommittee found language acceptable to all parties.24 The last principle from the Declaration that the Legal Subcommittee discussed in detail related to the responsibility of international organizations in outer space. The Declaration recognized that states could conduct space activities through international intergovernmental organizations so long as the duty to comply with the Declaration was “borne by the international organization and by the States participating in it.” The Declaration included this provision on international organizations at the request of Western European states, which had by this time established the European Launcher Development Organization and the European Space Research Organization to engage in space activities. Now that the Legal Subcommittee was drafting the Outer Space Treaty, some Western European states wanted to clarify how international organizations would assume legal responsibility for space activities. There were two views on how international organizations might bear responsibility. Western European states argued that international organizations must affirmatively accept the responsibilities in the same way that a state accepts international responsibility by ratifying a treaty. The Western European view was based on the idea that international intergovernmental organizations had international personality just like a country. As a result, legal duties could not be imposed on an international organization by fiat. The Soviet Union, on the other hand, believed that international organizations have no international personality and are

124  The outer space treaty mere subjects of international law – a thing like airspace or the high seas. As a result, the Soviet Union believed that the treaty should simply state that international organizations are legally responsible for outer space activities. Western European states argued that this was unfair because imposing legal obligations on an international organization without that organization’s consent effectively imposed those same duties on the underlying state members without consent. This was a violation of sovereignty. The United Kingdom offered a compromise that tried to protect the interests of the Western European states. The United Kingdom suggested that the treaty include a provision stating that an international organization could issue a declaration accepting the terms of the treaty. The declaration would essentially act as an adoption and ratification of the treaty in the same way as a state. The Soviet Union was concerned, however, that nothing required international organizations to accept the treaty, and states might evade legal responsibility by conducting space activities through international organizations. To address that concern, other delegates added a requirement that states who are party to the treaty and a member of an international organization must make reasonable efforts to ensure that the organization issued a declaration accepting the Outer Space Treaty. The Legal Subcommittee rejected the United Kingdom’s proposal to allow international organizations to accept the treaty via a declaration. The idea at this time was simply too novel. There was no precedent for such a process under international law, and lawyers are nothing if not conservative in the embrace of entirely new ideas. The Soviet Union remained categorically opposed to giving special status to international organizations, and even some Western European states were uncertain of the United Kingdom’s proposal. In the future, the United Kingdom’s proposal would be adopted in other treaties on outer space law. For now, however, the Legal Subcommittee decided simply to adopt the same position taken in the Declaration – that responsibility shall be borne by both the international organization and state members of the organization without specifying how the responsibility would be accepted.25 The last topic of the treaty that the Legal Subcommittee discussed was a Soviet proposal that states “accord equal conditions to States engaged in the exploration of outer space.” Initially, the Soviet proposal provoked only confusion. No one had any idea what the Soviet Union meant by requiring states to accord “equal conditions” to states engaged in space exploration. When Ambassador Goldberg asked for clarification, Ambassador Morozov explained that if a state offered services for outer space activities to one state, then it must offer the same service to all other states. For example, “if State A permitted State B to build a tracking station on its territory, State C, which was pursuing the same peaceful aims in space, should be given the opportunity to build a similar station in A’s territory.” The Soviet proposal for “equal conditions” met with a torrent of opposition from states outside the Eastern bloc. There were a number of problems with the Soviet proposal. First, it imposed onerous obligations on states. For example, if one state offered to launch a satellite for free for another state, the launching state was now obligated to launch satellites for free for all nations. Second, the

The outer space treaty  125 Soviet proposal ignored the necessity of bilateral treaties to facilitate cooperation. For example, the construction of a tracking station in a foreign nation requires a bilateral treaty to address the details, such as the location, size, and cost of the facility, and whether it would be staffed by domestic or foreign nationals. Finally, the Soviet proposal would discourage international cooperation. Because a state that aided one nation would have to aid to all nations, some states may choose not to offer any aid at all to avoid incurring unintended obligations. For many, the Soviet proposal was simply bizarre. The Soviet Union, however, remained insistent on the proposal, and the Legal Subcommittee was unable to find an acceptable consensus resolution.26 The Legal Subcommittee concluded its session on August 4, 1966, after having drafted most of the Outer Space Treaty. The subcommittee’s draft included nine articles, all of which had been adopted previously in some form either in the Declaration of Legal Principles or in Resolution 1884 (XVIII). These articles provided for (1) the freedom to use and explore outer space, (2) a ban on territorial claims, (3) the extension of international law to outer space, (4) a duty to register space objects and jurisdiction over those space objects, (5) the reservation of celestial bodies only for peaceful purposes and a ban on weapons of mass destruction in outer space, (6) a duty for states and international organizations to bear responsibility for space activities, (7) a requirement to avoid experiments that interfere with the use of outer space by others or that could cause harmful contamination, (8) a duty to render assistance to astronauts in distress, and (9) liability for damage caused by space objects. The United Nations’ adoption of these principles in some form previously was instrumental to the subcommittee’s ability to rapidly adopt these articles for the Outer Space Treaty. There were only four issues that the Legal Subcommittee could not resolve. Perhaps unsurprisingly, these issues concerned new matters that the United Nations had not previously addressed. First, there was the United States’ request that military personnel and equipment be allowed on celestial bodies if they were engaged only in peaceful activities, such as scientific research. The second issue was under what conditions did a state have to allow access to its facility on a celestial body, and specifically whether access required mutual agreement. Third was whether states had an obligation to disclose their activities and the results of scientific investigations on celestial bodies. Finally, there was the Soviet Union’s demand that states offer services for outer space activities on “equal conditions.” Although some issues remained open, the Legal Subcommittee was close to a final agreement. Evincing its optimism, the subcommittee decided not to end its session for the year but to suspend it in the hopes that the subcommittee could reconvene later after private consultations resolved the outstanding issues. Because the only unresolved issues concerned new matters that either the Soviet Union or the United States had proposed, the superpowers consulted with one another to resolve their differences. Indeed, Ambassador Goldberg had already begun bilateral talks with the Soviet Union. Once the superpowers agreed, the Legal Subcommittee could reconvene to review the result and adopt it.27

126  The outer space treaty

Bilateral negotiations Private talks between Ambassadors Goldberg and Morozov revealed that the only issue that prevented an agreement was the Soviet Union’s request that states accord “equal conditions” to other states exploring outer space. The Soviet Union’s real concern was its inability to secure tracking station to monitor its spacecraft throughout their orbit. NASA, by contrast, could monitor its spacecraft continually in orbit after reaching agreements to establish tracking stations in the territories of 23 other nations. The Soviet Union complained of “discrimination” because these same nations refused to allow Soviet tracking stations. The Soviet Union sought to rectify the situation by imposing what Ambassador Morozov characterized as a “most-favored-nation” clause. This is a concept from trade agreements that requires a country that makes a trade concession to one trading partner to make the same concession to all other trading partners. For the Outer Space Treaty, this meant a state that provided tracking stations to one nation must allow other nations to do the same. The Soviet Union was willing to limit the “equal conditions” requirement to tracking stations only and not other space activities, such as launch services. The Soviet Union’s focus on tracking stations helped narrow the problems presented by the “equal conditions” proposal, but it remained problematic. Primarily, the proposal was a potential infringement of sovereignty. A state under the “equal conditions” requirement would have to allow another state to build a tracking station on its territory apparently with or without consent simply because the territorial state allowed some other nation to build a tracking territory under a bilateral agreement. The Soviet request also left unaddressed practical problems, such as how the article would be implemented. The United States offered to include language to encourage states to cooperate in tracking services, but it believed the most-favored-nation clause was “politically impractical.” Ambassadors Goldberg and Morozov found common ground on the three remaining issues left unresolved from the Legal Subcommittee session. Two of the issues were settled simply by adopting language from the Antarctic Treaty. The first of these was the United States’ request that the Outer Space Treaty explicitly allows the use of military personnel and equipment on celestial bodies for peaceful and scientific purposes. The Soviet Union did not oppose the suggestion because it too relied on military personnel and equipment for outer space activities. The only problem was finding appropriate language that did not create a loophole in the general prohibition against the military use of celestial bodies. The agreed-upon language was ultimately taken directly from Article I of the Antarctic Treaty, which states that the “use of military personnel or equipment for scientific research or for any other peaceful purpose” shall not be prohibited. The other issue concerned the disclosure of activities and the exchange of scientific research on celestial bodies. The Soviet Union had opposed a mandatory duty to share research conducted on celestial bodies “at great expense.” To assuage Soviet concerns, Ambassador Goldberg once again borrowed the language from Article III of the Antarctic Treaty, which requires states to share information “to

The outer space treaty  127 the greatest extent feasible and practicable.” The Soviet Union, having adopted this duty for Antarctica, had few grounds to object to the adoption of the same language for celestial bodies. The last issue was the duty of states to offer other nations free access to installations on celestial bodies. Here, the added difficulties of visitation on celestial bodies as compared to visitation in Antarctica meant that Ambassador Goldberg could not lift language from the Antarctic Treaty as he had with other issues. The Antarctic Treaty makes clear that visits and inspections may be conducted “at all times.” Because visits to a base on the moon or another celestial body could affect safety and normal operations, the Soviet Union and United States agreed that some reasonable advance notice should be given prior to a visit. There was disagreement, however, over who had ultimate control over the timing of the visit. Ambassador Goldberg insisted that the party asking for access should have final say on timing to make this an effective disarmament provision. Ambassador Morozov argued that the state receiving the visitor must control the timing of access as it would know best when a visit was safe to proceed. The ambassadors ultimately agreed to paper over their differences with ambiguous language. They agreed that access must be given subject to “reasonable advance notice of a projected visit, in order that appropriate consultations may be held.” This language avoids addressing who controls the timing of the visit. Ambassador Goldberg later told the Legal Subcommittee, however, that the language absolutely prohibits a state from vetoing a visit.28 On September  12, 1966, the Legal Subcommittee reconvened to discuss the status of the Outer Space Treaty. Ambassadors Goldberg and Morozov reported on the compromises reached regarding the use of military personnel and equipment on celestial bodies for peaceful purposes, the duty to share information to the greatest extent feasible and practicable, and free access to facilities on celestial bodies with advance notice of a visit. The Legal Subcommittee adopted the compromise language on these points. On the last issue of “equal conditions” for tracking stations, the vast majority of the Legal Subcommittee supported the United States’ view that the most-favored-nation clause was unworkable. Ambassador Morozov offered to amend the provision to ensure that states hosting tracking stations “shall be reimbursed.” But the issue was not about cost. It was about how such an agreement could be implemented. A bilateral treaty would be necessary to work out the administrative details for the operation of a tracking facility on a case-by-case basis, something that the most-favored-nation clause did not recognize. Despite the unresolved matter of “equal conditions” for tracking stations, the United States was optimistic that the Outer Space Treaty would soon be finalized. The State Department had predicted that the Soviet Union would seek to delay an agreement, and there appeared to be no serious disagreement on the treaty. The Soviet demand for “equal conditions” was so unreasonable and provocative that the State Department believed that the proposal had been raised simply to prevent an agreement until Soviet representatives could receive further instructions from their government. Meanwhile, the State Department reported that other nations,

128  The outer space treaty including Non-Aligned Nations, universally supported the Outer Space Treaty and thanked the United States for proposing it. The State Department believed that the Soviet Union could not delay a conclusion of the treaty indefinitely. Accordingly, the United States asked the U.N. Secretary-General to place the treaty on the General Assembly’s agenda that year, even though an agreement had not been reached. Secretary of State Dean Rusk reported to President Johnson that the treaty should be complete by the end of the year when more senior officials in the Soviet Union devoted their attention to the matter.29 Those more senior Soviet officials began to arrive in New York in late September  1966 for the opening of the United Nations’ 21st annual session. On September  19, 1966, a day before the official opening of the annual session, Ambassador Nikolai Fedorenko replaced Ambassador Morozov as the Soviet Union’s representative at the COPUOS. Ambassador Fedorenko, as the Soviet Union’s permanent representative to the United Nations, was Ambassador Goldberg’s counterpart, whereas Ambassador Morozov was the Soviet Union’s deputy ambassador. Though the COPUOS simply adopted the reports of its subcommittees and did no substantive work, the Soviet Union’s decision to send an equivalentranking diplomat to the COPUOS was a subtle suggestion that someone with authority could now deal with the United States seriously. On September 22, 1966, the Soviet Union and the United States held a highlevel meeting with senior members of their respective diplomatic corps. From the United States were Secretary of State Dean Rusk, Ambassador Goldberg, Ambassador-at-Large Llewellyn Thompson, Ambassador to the Soviet Union Foy Kohler, and Ambassador William Foster from the U.S. Arms Control and Disarmament Agency. From the Soviet Union were Foreign Minister Andrei Gromyko, Ambassador Fedorenko, Ambassador to the United States Anatoliy Dobrynin, Ambassador to the Disarmament Committee Alexey Roschin, and Deputy Delegate to the United Nations Lev Mendelevitch. Noticeably absent was Ambassador Morozov, who had up to this point represented the Soviet Union in the negotiations on the Outer Space Treaty. The meeting included discussions not only about the Outer Space Treaty but other pending negotiations for a civil aviation agreement and a nuclear nonproliferation treaty. The discussion on the Outer Space Treaty during this high-level meeting focused on the one outstanding matter of tracking stations. Secretary Rusk stated that the United States had given the Soviet Union as much as it could on this issue. The United States would encourage other nations to cooperate with the Soviet Union to establish tracking stations and supported language in the treaty encouraging cooperation. But, the United States had received clear feedback from other nations that they would not accept that the Soviet Union had a right to build a tracking station on their sovereign territory simply because the United States had one under the guise of a most-favored-nation clause. Secretary Rusk’s counterpart, Foreign Minister Gromyko, asked the United States to view the Soviet request with more “objectivity.” The Soviet Union continued to believe that other nations were discriminating against the Soviet Union by allowing American tracking stations but not Soviet ones.30

The outer space treaty  129 Although the impasse remained after the high-level meeting, signs of progress appeared two weeks later on October  3, 1966. During a call between Foreign Minister Gromyko and Ambassador Goldberg, the foreign minister referred to the Outer Space Treaty as an “hors d’oeuvre which depended on getting a picture of the main meal.” Ambassador Goldberg reported that, based on the tenor of the conversation, the foreign minister meant to convey that the Outer Space Treaty was not the Soviet Union’s primary goal, and it would allow the treaty to proceed if progress could be made on some other issue of interest to the Soviet Union, such as nuclear nonproliferation or the conflict in Vietnam. The following day, October  4, 1966, the Soviet Union introduced a revised draft of the Outer Space Treaty to the U.N. General Assembly for consideration. In light of the Soviet penchant for announcements on anniversaries, it appears that the Soviet Union was trying to delay an agreement until this day – the ninth anniversary of Sputnik’s launch. The Soviet draft incorporated all of the compromise language previously discussed. On the issue of tracking stations, the Soviet Union proposed that states “consider on the basis of equality” any request by a state to observe the flight of space objects (i.e., tracking stations). As to the details for building tracking stations, expenses and other matters “shall be determined by agreement between the states concerned.” The Soviet proposal essentially adopted the position of the United States and the rest of the Legal Subcommittee – that the treaty should include only an aspirational statement encouraging cooperation, not a duty, and that any agreement to establish a tracking station requires a bilateral treaty.31 The Soviet draft resolved all disagreements on the substantive articles of the Outer Space Treaty, but the treaty remained unfinished. The procedural articles on ratification, amendment, and similar aspects still had to be negotiated. The order of the articles also had to be rearranged, and some language had to be further clarified and made uniform. These remaining issues, however, were minor and resolved without any significant dispute over the next two months. On December 15, 1966, a group of 43 nations, including the members of the Committee on the Peaceful Uses of Outer Space, endorsed a “Treaty Governing the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.” A few days later on December 19, 1966, the U.N. General Assembly commended the treaty for adoption by states as well in U.N. Resolution 2222 (XXI).32 * * * After the United Nations’ endorsement of the Outer Space Treaty, the Soviet Union, the United Kingdom, and the United States held simultaneous signing ceremonies in their respective capitals on January 27, 1967. Under the terms of the treaty, these three nations are the depositary nations, thus giving them the honor of holding the ceremonies. In Washington, DC, over 60 ambassadors and numerous high-ranking officials from NASA attended at the White House. Among these were NASA Administrator James Webb, the Center Director for the

130  The outer space treaty John F. Kennedy Space Center Kurt Debus, and a few astronauts including Neil Armstrong. Three astronauts – Gus Grissom, Edward White, and Roger Chaffee – were not present because they were conducting in a preflight test of the Apollo spacecraft in Cape Canaveral, Florida. After the White House ceremony, many of the attendees migrated to a reception at the International Club on 19th Street, Northwest. During the reception, Administrator Webb and Director Debus were asked to take an urgent phone call. Their absence was shortly noted, and rumors spread that something had happened. There was mention of a fire. Administrator Webb gathered a group of senior NASA personnel and announced that they must return to work immediately. A fire had indeed broken out inside the command module of the Apollo spacecraft. Gus Grissom, Edward White, and Roger Chaffee were dead. NASA would posthumously recognize them as members of the Apollo 1 crew.33

Notes 1 In a remarkably offensive example of a conqueror’s revisionist glorification of its history, the Spanish representative responded to Ambassador Stevenson’s remarks by glossing over slavery and the mass rapes, mass murders, and genocides committed by conquistadores and proclaimed that Spain and Portugal had divided the New World to “ensure its civilization,” as if no civilization existed before the arrival of Europeans. 2 U.N. First Committee, 18th Sess., Verbatim Records, U.N. Docs. A/AC.1/PV.1342 (2 December 1963), 6 (United States), 88–90 (Spain); United Nations, General Assembly Resolution 1962 (XVIII), Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, A/RES/1962(XVIII) (13 December 1963); U.N. First Committee, 18th Sess., Report of the First Committee, U.N. Doc. A/5656 (10 December 1963). 3 U.N. First Committee, 18th Sess., Verbatim Records, U.N. Docs. A/AC.1/PV.1342 (2 December 1963), 52 (Austria); U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1345 (5 December 1963), 184 (Iran); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.26, 28–31 (27, 29–30 October, 2–3 November 1964), Statements by Belgium, Bulgaria, Czechoslovakia, France, Hungary, India, Poland, Soviet Union, and United Kingdom; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.28 (3 May 1963), 8 (United Kingdom); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/ AC.105/C.2/SR.29–37 (9–26 March 1964), 1–6, 9–10 (Soviet Union), 12–13 (Czechoslovakia), 14 (Hungary), 17–18 (Poland), 18 (Mongolia), 20–21 (Romania), 46 (Egypt), 75–76 (Brazil); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.38 (5 October 1964), 4 (Soviet Union), 5–6 (United States); U.N. COPUOS, Interim Report of the Bureau on the Organization of the Work of the Committee in 1964, A/AC.105/16 (6 February  1964); U.N. COPUOS, Interim Report of the Bureau on the Organization of the Work of the Committee in 1964, A/AC.105/16/ Add.1 (22 May  1964); Agreement Establishing Interim Arrangements for a Global Commercial Communications Satellite System, 20 August  1964, 514 U.N.T.S. 25, available at https://treaties.un.org/doc/Publication/UNTS/Volume%20514/volume514-I-7441-English.pdf; United Nations, General Assembly Resolution 1963 (XVIII), International co-operation in the peaceful uses of outer space, A/RES/1963(XVIII) (13 December 1963). 4 U.N. GAOR, 19th Sess., Resolutions and Decisions adopted by the General Assembly during its 19th session, Supplement No. 15, U.N. Doc. A/5815 (1 December 1964–1

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6 7

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9 10

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September  1965), available at https://research.un.org/en/docs/ga/quick/regular/19; Frederic L. Kirgis, “United States Dues Arrearages in the United Nations and Possible Loss of Vote in the U.N. General Assembly,” American Soviet of International Law, Vol. 3, No. 8 (3 July 1998), available at www.asil.org/insights/volume/3/issue/8/ united-states-dues-arrearages-united-nations-and-possible-loss-vote-un; Central Intelligence Agency, The United Nations Financing and Peacekeeping Problems, 23 July 1965, available at https://history.state.gov/historicaldocuments/frus1964-68v33/ d359; U.N. GAOR, 17th Sess., 1126th plen. mtg., U.N. Doc. A/PV.1126 (21 September 1962), 8 (Japan), 28–30 (Norway); Solid Front Presented on United Nations Debts, CQ Almanac 1964, 20th Ed., 321 (Washington, DC: Congressional Quarterly, 1965), available at http://library.cqpress.com/cqalmanac/cqal64-1304492; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), 1962 I.C.J. 151 (July 20), available at www.icj-cij.org/en/case/49; Joel I. Bell, “A Legal Analysis of Article 19 of the United Nations Charter,” McGill Law Journal, Vol. 11, No. 2 (1965): 148–161, available at https://lawjournal.mcgill.ca/wp-content/uploads/pdf/6684243bell.pdf; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.37–39 (5–7 October  1965), 7 (Chairman), 56 (Argentina), 58 (Japan), 85–86 (Australia); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.29 (30 October  1964), 29 (Australia); U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/6042 (12 October 1965), 1. U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/6042 (12 October 1965), 1; Stanley Meisler, United Nations: A History (New York: Grove Press, 1995), 185–195; Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Leiden: Matinus Nijhoff, 2010), ix–x. U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.39 (7 October 1965), 70. Barton C. Hacker and James M. Grimwood, On the Shoulders of Titans: A  History of Project Gemini (Washington, DC: NASA, 1977), vi, xv–xvii, 3–6, 9–10, 55–56, 63–64, 73–74, 108, 125–126, 287; Charles Murray and Catherine Bly Cox, Apollo (New York: Simon & Schuster, 1989), Chapter 7, Chapter 9. Barton C. Hacker and James M. Grimwood, On the Shoulders of Titans: A History of Project Gemini (Washington, DC: NASA, 1977), 95, 139, 162; Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–1974 (Washington, DC: NASA, 2000), 363, 369. Barton C. Hacker and James M. Grimwood, On the Shoulders of Titans: A History of Project Gemini (Washington, DC: NASA, 1977), xvii, 165–168, 197–205. Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945– 1974 (Washington, DC: NASA, 2000), 380–386, 383–384, 409–411, 423–425, 446–460, 567; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 176, 179; Barton C. Hacker and James M. Grimwood, On the Shoulders of Titans: A History of Project Gemini (Washington, DC: NASA, 1977), vi, xviii, 205, 233; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.26–27, 30 (27–28 October 1964, 2 November 1964), Statements by Italy, India, and Soviet Union; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.37 (5 October 1965), 17–18. Barton C. Hacker and James M. Grimwood, On the Shoulders of Titans: A  History of Project Gemini (Washington, DC: NASA, 1977), 219, 233–235, 237, 239, 246– 250, 256–259, 262–263, 268–269, 276, 283–284, 286–287, 294, 310–311, 319, 321, 332, 345, 349, 358–359, 364, 374–376, 381; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/6042 (12 October  1965), 3; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.37 (5 October 1965), 6, 17–18; Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–1974 (Washington, DC: NASA, 2000), 448. U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.37 (5 October  1965), 32 (United States); Ivan A. Vlasic, “The Space Treaty: A  Preliminary Evaluation,”

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California Law Review, Vol. 44, No. 2 (May 1967): 508; Charles Murray and Catherine Bly Cox, Apollo (New York: Simon & Schuster, 1989), Chapter 10. U.N. GAOR, Letter Dated 9 May  1966 from the Permanent Representative of the United States of America to the United Nations Addressed to the Secretary-General, U.N. Doc. A/6327 (10 May 1966). U.N. First Committee, 20th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1421 (18 December  1965), 421–422 (United States); U.N. GAOR, Letter Dated 9 May  1966 from the Permanent Representative of the United States of America to the United Nations Addressed to the Secretary-General, U.N. Doc. A/6327 (10 May 1966). U.N. GAOR, Letter Dated 30 May 1966 from the Representative of the Union of Soviet Socialist Republics to the Secretary-General, U.N. Doc. A/6341 (31 May 1966). U.N. COPUOS, Draft Treaty Governing the Exploration of the Moon and Other Celestial Bodies: Letter Dated 16 June 1966 from the Permanent Representative of the United States of America Addressed to the Chairman of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/32 (17 June 1966); Dean Rusk, Telegram from the Department of State to the Mission to the United Nations, 10 May 1966, available at https://history.state.gov/historicaldocuments/frus1964-68v11/d128; Roger W. Tubby, Telegram From the Mission to the United Nations European Office to the Department of State, 28 July 1966, available at https://history.state.gov/historicaldocuments/frus1964-68v33/d387; U.N. GAOR, Letter Dated 30 May 1966 from the Representative of the Union of Soviet Socialist Republics to the Secretary-General, U.N. Doc. A/6341 (31 May 1966); Spurgeon Keeny, Celestial Bodies Treaty, 24 June 1966, available at https://history.state.gov/historicaldocuments/frus1964-68v33/d384; U.N. GAOR, Letter Dated 16 June 1966 from the Permanent Representative of the Union of Soviet Socialist Republics to the United Nations Addressed to the Secretary-General, U.N. Doc. A/6352 (16 June  1966); U.N. COPUOS Legal Sub-Committee, United States of America: Draft Treaty Governing the Exploration of the Moon and Other Celestial Bodies, U.N. Doc. A/AC.105/C.2/L.12 (11 July 1966); U.N. COPUOS Legal Sub-Committee, Letter Dated 11 July 1966 Addressed to the Chairman of the Legal Sub-Committee by the Representative of the USSR, U.N. Doc. A/AC.105/C.2/L.13 (11 July 1966). U.N. COPUOS Legal Sub-Committee, Summary Records. U.N. Docs. A/AC.105/C.2/ SR.57–58, 61–62 (12–13, 18–19 July  1966), Statements by Representative of the Secretary-General), Chairman of COPUOS, Belgium, Canada, Czechoslovakia, France, India, Japan, Lebanon, Soviet Union, United Kingdom, and United States; U.N. GAOR, Letter Dated 16 June 1966 from the Permanent Representative of the Union of Soviet Socialist Republics to the United Nations Addressed to the Secretary-General, U.N. Doc. A/6352 (16 June  1966); U.N. COPUOS Legal Sub-Committee, United States of America: Draft Treaty Governing the Exploration of the Moon and Other Celestial Bodies, U.N. Doc. A/AC.105/C.2/L.12 (11 July 1966); U.N. COPUOS Legal Sub-Committee, Letter Dated 11 July 1966 Addressed to the Chairman of the Legal Sub-Committee by the Representative of the USSR, U.N. Doc. A/AC.105/C.2/L.13 (11 July 1966); U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fifth Session (12 July–4 August and 12–16 September 1966) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/35 (16 September 1966), Annex I at 10; Stanley Meisler, United Nations: A History (New York: Grove Press, 1995), 180; Spurgeon Keeny, Celestial Bodies Treaty, 24 June  1966, available at https://history.state.gov/historicaldocuments/frus1964-68v33/d384. U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.57, 63–64 (12, 20–21 July  1966), Statements by France, India, Lebanon, and United States; Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Leiden: Matinus Nijhoff, 2010), 44, 50 n. 27–28. U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.57–58, 62, 65–66 (12–13, 19, 22–25 July  1966), Statements by Austria, India,

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Hungary, Mexico, Soviet Union, and United States; U.N. COPUOS Legal SubCommittee, United States of America: Draft Treaty Governing the Exploration of the Moon and Other Celestial Bodies, U.N. Doc. A/AC.105/C.2/L.12 (11 July 1966); U.N. COPUOS Legal Sub-Committee, Letter Dated 11 July 1966 Addressed to the Chairman of the Legal Sub-Committee by the Representative of the USSR, U.N. Doc. A/ AC.105/C.2/L.13 (11 July  1966); Vladimir Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including the Moon and Other Celestial Bodies (U.N. Audio Visual Library of International Law), 4, available at https://legal.un.org/avl/ha/tos/tos.html; U.N. First Committee, 20th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1422 (20 December 1965), 429 (United States); U.N. First Committee, 21st Sess., Verbatim Records, U.N. Docs. A/AC.1/PV.1492 (17 December 1966), 48–50 (Austria); U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fifth Session (12 July–4 August and 12–16 September 1966) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/35 (16 September 1966), Annex III at 4, 7; U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.86 (14 December 1967), 11 (Japan), 16 (Canada). U.N. COPUOS Legal Sub-Committee, United States of America: Draft Treaty Governing the Exploration of the Moon and Other Celestial Bodies, U.N. Doc. A/ AC.105/C.2/L.12 (11 July 1966); U.N. COPUOS Legal Sub-Committee, Letter Dated 11 July 1966 Addressed to the Chairman of the Legal Sub-Committee by the Representative of the USSR, U.N. Doc. A/AC.105/C.2/L.13 (11 July 1966); U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fifth Session (12 July–4 August and 12–16 September 1966) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/35 (16 September 1966), Annex III at 2, 14 (Italy), 16 (Japan); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.57, 60, 63–64, 70 (12, 15, 20–21 July, 3 August 1966), Statements by Argentina, Australia, Canada, Hungary, India, Italy, Japan, Lebanon, Mexico, Soviet Union, United Kingdom, and United States; Roger W. Tubby, Telegram from the Mission to the United Nations European Office to the Department of State, 28 July  1966, available at https://history.state.gov/historicaldocuments/frus196468v33/d387. U.N. COPUOS Legal Sub-Committee, United States of America: Draft Treaty Governing the Exploration of the Moon and Other Celestial Bodies, U.N. Doc. A/ AC.105/C.2/L.12 (11 July 1966); Vladimir Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including the Moon and Other Celestial Bodies (U.N. Audio Visual Library of International Law), 5, available at https://legal.un.org/avl/ha/tos/tos.html; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fifth Session (12 July–4 August and 12–16 September 1966) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/35 (16 September  1966), Annex III at 3 (Soviet Union), 5 (Egypt); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.64–65, 70–71 (21–22 July, 3–4 August  1966), Statements by Argentina, Brazil, Bulgaria, Canada, Egypt, Hungary, India, Italy, Japan, Lebanon, Mongolia, United Kingdom, and United States; Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–1974 (Washington, DC: NASA, 2000), 447–452; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 194. U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.57–59, 61–62 (12–14, 18–19 July  1966), Statements by Australia, Austria, Bulgaria, Czechoslovakia, Mongolia, Poland, and United States. U.N. COPUOS Legal Sub-Committee, Letter Dated 11 July  1966 Addressed to the Chairman of the Legal Sub-Committee by the Representative of the USSR, U.N. Doc. A/AC.105/C.2/L.13 (11 July 1966), Art. 1; United Nations, General Assembly

134  The outer space treaty

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Resolution 1472 (XIV), International Co-Operation in the Peaceful Uses of Outer Space, A/RES/1472(XIV) (12 December 1959), Preamble; U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.63–65, 71 (20–22 July, 4 August 1966), Statements by Brazil, India, Italy, and United Kingdom; U.N. First Committee, 21st Sess., Verbatim Records, U.N. Docs. A/AC.1/PV.1492 (17 December 1966), 63 (Brazil). U.N. COPUOS Legal Sub-Committee, United States of America: Draft Treaty Governing the Exploration of the Moon and Other Celestial Bodies, U.N. Doc. A/AC.105/ C.2/L.12 (11 July  1966); U.N. COPUOS Legal Sub-Committee, Letter Dated 11 July 1966 Addressed to the Chairman of the Legal Sub-Committee by the Representative of the USSR, U.N. Doc. A/AC.105/C.2/L.13 (11 July 1966); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.68 (26 July 1966), 3; United Nations, General Assembly Resolution 1962 (XVIII), Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, A/RES/1962(XVIII) (13 December 1963); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.24 (22 November  1963), 16 (Canada); U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5785 (13 November  1964), 9, 12–16; U.N. COPUOS, Verbatim Records, U.N. Docs. A/ AC.105/PV.39 (7 October 1965), 77; U.N. COPUOS, Verbatim Records, U.N. Docs. A/ AC.105/PV.30 (2 November 1964), 10 (India); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.29–37 (9–26 March  1964), 80 (India); U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5785 (13 November 1964). U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.57–58, 66–67 (12–13, 25 July 1966), Statements by Australia, Canada, Italy, Soviet Union, and United Kingdom; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fifth Session (12 July–4 August and 12–16 September 1966) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/ AC.105/35 (16 September 1966), Annex III at 8; Vladimir Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including the Moon and Other Celestial Bodies (U.N. Audio Visual Library of International Law), 6, available at https://legal.un.org/avl/ha/tos/tos.html. U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fifth Session (12 July–4 August and 12–16 September 1966) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/35 (16 September 1966), Annex III at 12; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.63–64, 71 (20–21 July, 4 August 1966), Statements by Australia, Austria, Brazil, Hungary, Italy, Japan, Lebanon, Mongolia, Soviet Union, United Kingdom, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.73 (16 September  1966), 8–9 (Australia), 9 (Japan); Roger W. Tubby, Telegram from the Mission to the United Nations European Office to the Department of State, 28 July 1966, available at https://history.state.gov/ historicaldocuments/frus1964-68v33/d387. U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fifth Session (12 July–4 August and 12–16 September 1966) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/35 (16 September 1966), 1 (Chairman), Annex II at 2–10; U.N. COPUOS Legal Sub-Committee, Interim Report by the Chairman, U.N. Doc. A/AC.105/C.2/L.16 (6 September 1966); United Nations, General Assembly Resolution 1962 (XVIII), Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, A/ RES/1962(XVIII) (13 December 1963); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.70–71 (3–4 August 1966), Statements by Chairman, Canada, Egypt, Hungary, Soviet Union, and United States; U.N. COPUOS

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Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.72 (12 September 1966), 3; U.N. COPUOS. Verbatim Records. U.N. Docs. A/AC.105/PV.44–45 (19 September 1966), 12–13 (Chairman); Roger W. Tubby, Telegram from the Mission to the United Nations European Office to the Department of State, 28 July 1966, available at https://history.state.gov/historicaldocuments/frus1964-68v33/d387; Benjamin H. Read, Negotiation of an Outer Space Treaty, 10 August 1966, available at https:// history.state.gov/historicaldocuments/frus1964-68v33/d389. Roger W. Tubby, Telegram From the Mission to the United Nations European Office to the Department of State, 28 July 1966, available at https://history.state.gov/historicaldocuments/frus1964-68v33/d387; Benjamin H. Read, Negotiation of an Outer Space Treaty, 10 August 1966, available at https://history.state.gov/historicaldocuments/ frus1964-68v33/d389; Nathaniel Davis, NSC Meeting on 20th General Assembly, Undated, available at https://history.state.gov/historicaldocuments/frus1964-68v33/ d396; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fifth Session (12 July–4 August and 12–16 September  1966) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/35 (16 September  1966), Annex IV at 2–4, 6; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.44 (19 September 1966), 21–22 (United States), 31–33, 36–37 (Soviet Union); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/ AC.105/C.2/SR.70 (3 August  1966), 2 (Soviet Union); U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.73 (16 September 1966), 3 (United States), 6–7 (Soviet Union), 7–8 (Italy), 12 (Canada). Roger W. Tubby, Telegram From the Mission to the United Nations European Office to the Department of State, 28 July 1966, available at https://history.state.gov/historicaldocuments/frus1964-68v33/d387; Benjamin H. Read, Negotiation of an Outer Space Treaty, 10 August 1966, available at https://history.state.gov/historicaldocuments/ frus1964-68v33/d389; Foy D. Kohler, Telegram from the Embassy in the Soviet Union to the Department of States, 13 September 1966, available at https://history.state.gov/ historicaldocuments/frus1964-68v14/d173; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fifth Session (12 July–4 August and 12–16 September 1966) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/35 (16 September 1966), Annex IV at 2; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.72–73 (12–16 September 1966), Statements by Brazil, France, Italy, Soviet Union, and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.44 (19 September 1966), 23–25 (United States); U.N. GAOR, United States of America: Request for the Inclusion of an Additional Item in the Agenda of the Twenty-First Session, A/6392 (19 September 1966). U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.44 (19 September 1966), 1–8, 16; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/6431 (22 September 1966); Memorandum of Conversation: Outer Space Agreement (Part III of IV), 22 September 1966, available at https://history.state.gov/ historicaldocuments/frus1964-68v11/d151. Joseph J. Sisco, Goldberg Meeting with Gromyko, 3 October 1966, available at https:// history.state.gov/historicaldocuments/frus1964-68v11/d154; David H. Popper, Latest Developments on Outer-Space Treaty, 5 October 1966, available at https://history. state.gov/historicaldocuments/frus1964-68v11/d155; U.N. GAOR, Letter Dated 4 October 1966 from the Representative of the Union of Soviet Socialist Republics to the Secretary-General, U.N. Doc. A/6352/Rev.1 (5 October 1966). Vladimir Kopal, Treaty on Principles Governing the Activities of States in the Exploration and Use of Space, Including the Moon and Other Celestial Bodies (U.N. Audio Visual Library of International Law), 5, available at https://legal.un.org/avl/ha/tos/tos. html; U.N. First Committee, 21st Sess., Afghanistan, Argentina, Australia, Austria,

136  The outer space treaty Belgium, Brazil, Bulgaria, Canada, Chad, Chile, Czechoslovakia, Dahomey, Denmark, Finland, France, Hungary, Iran, Iraq, Ireland, Italy, Japan, Jordan, Lebanon, Mexico, Mongolia, Morocco, Nepal, Niger, Poland, Romania, Sierra Leone, Sudan, Sweden, Turkey, Union of Soviet Socialist Republics, United Kingdom of Great Britain and Norther Ireland, United States of America, Uruguay: Draft Resolution, U.N. Doc. A/C.1/L.396 (15 December 1966); U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fifth Session (12 July–4 August and 12–16 September 1966) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/35 (16 September 1966), Annex III at 13, Annex IV at 5; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.73 (16 September  1966), 9 (Australia); U.N. GAOR, 21st Sess., Provisional Verbatim Record, U.N. Docs. A/PV.1499 (19 December 1966), 71–22; United Nations, General Assembly Resolution 2222 (XXI), Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, A/RES/2222(XXI) (19 December 1966). 33 Charles Murray and Catherine Bly Cox, Apollo (New York: Simon & Schuster, 1989), Chapter 14, Chapter 17; Edward S. Goldstein, Gregory C. La Rosa, and David S. Schuman, “Present at the Creation: Paul G. Dembling, Author of NASA’s Founding Legislation,” 50th Magazine, NASA, available at www.nasa.gov/50th/50th_magazine/ demblingInterview.html; Neil Armstrong, “NASA Johnson Space Center Oral History Project,” Interview of Neil Armstrong by Stephen E. Ambrose and Douglas Brinkley, 19 September  2001, Transcript, available at https://historycollection.jsc.nasa.gov/ JSCHistoryPortal/history/oral_histories/ArmstrongNA/ArmstrongNA_9-19-01.htm.

7 Transition into détente

The Committee on the Peaceful Uses of Outer Space entered a period of transition at the end of 1966 after the completion of the Outer Space Treaty. Within the committee itself, there were significant changes in leadership and key representatives. Manfred Lachs of Poland, the eminent international lawyer and chairman of the Legal Subcommittee since 1961, left the committee after his election to the International Court of Justice in October 1966. Mihail Haseganu of Romania, who had served as the COPUOS vice chairman since the committee’s inception, received another appointment in September 1966. Victor Andres Belaunde, the articulate attorney of international law from Peru, died in December 1966. Leonard Meeker, the U.S. State Department Legal Adviser who had so ably represented the United States and advised Ambassador Goldberg during the Outer Space Treaty negotiations eventually received an appointment as Ambassador to Romania in 1969.1 Besides a change in the cast of characters at the COPUOS, there was also a broader transformation occurring in international relations. Disarmament, while still an important issue, no longer dominated attention in the same way that it had in the 1950s and early 1960s under the Eisenhower and Kennedy Administrations. This was especially true in relation to the discussions on outer space. The Outer Space Treaty largely settled the question of disarmament in space for the time being, and the Space Race was about to come to an end. Other matters, such as the growing conflict in Vietnam, drew world attention. Meanwhile, the international community was becoming more multilateral. Decolonization during the 1950s and 1960s had seen the United Nations’ membership swell. These largely Third World and developing nations coalesced to form their own voting blocks that advocated for international issues apart from those highlighted by the East– West divide of the Cold War. This wider change in the international community impacted the COPUOS’ agenda in the late 1960s after the completion of the Outer Space Treaty.

The rescue agreement The COPUOS’s first task on April 17, 1967, when it convened for the first time since the conclusion of the Outer Space Treaty, was to identify its next priority in the development of outer space law. Prior to the Outer Space Treaty, committee had

138  Transition into détente been working on an agreement for the rescue and return of astronauts and space objects as well as a convention on liability for space vehicle accidents. Although the United States had experienced the Apollo 1 tragedy only three months earlier, this event did not initially motivate the committee to focus on a rescue agreement. Indeed, the United States informed the committee that it would prefer to complete work on the liability convention. A week later, however, another tragedy in the Space Race gave the committee a clear priority.2 On April  24, 1967, cosmonaut Vladimir Komarov died instantly when his Soyuz 1 spacecraft slammed into the ground at 90 miles per hour. The Soyuz was the Soviet Union’s second-generation spacecraft designed to compete with NASA’s Gemini spacecraft and beyond. The Soyuz has had a long and illustrious career and continues to be used to this day as a ferry to the International Space Station. The early history of the Soyuz, however, left something to be desired. Trying to catch up in the Space Race, the Soviets pushed the development and testing of the Soyuz beyond what was safe or advisable, especially with the benefit of hindsight. During the Soyuz 1 mission, the first launch of a manned Soyuz spacecraft, the Soviets planned to conduct a rendezvous, docking, and exchange of crew members between two spacecraft. They were in essence attempting to accomplish all that NASA had achieved in a half dozen Gemini missions in the maiden voyage of Soyuz. Shortly after Soyuz 1 launched, a series of problems emerged that caused the Soviets to cancel the planned launch of a second spacecraft for a rendezvous and to refocus their efforts on simply bringing Komarov home alive. A  solar panel failed to deploy, the solar attitude control sensor was contaminated with exhaust, and a backup antenna for telemetry was inoperable. The sum result of these equipment failures was that Soyuz 1 was both navigationally blind and running low on power. Komarov had to manually reorient the spacecraft for reentry – a procedure for which cosmonauts had not been trained on the ground. After skillful piloting for reentry, however, Soyuz 1’s parachute system failed, and the spacecraft struck the ground, with Komarov likely aware of his imminent fate.3 While the COPUOS had been rather ambivalent about its next priority before the Soyuz 1 incident, when the Legal Subcommittee convened on June 20, 1967, the subcommittee immediately focused on the completion of a rescue and return agreement. The Soviet representative argued that the Apollo 1 fire in January and the Soyuz 1 accident in April underlined the danger of space exploration and the urgency of a rescue and return agreement. The Legal Subcommittee responded by establishing a working group dedicated to the completion of the agreement.4 Fortunately for the Legal Subcommittee, it was not starting from scratch. The 1963 Declaration of Legal Principles already reflected the idea that states must render “all possible assistance in the event of accident, distress, or emergency landing on the territory of a foreign State or on the high seas.” A similar high-level principle was in Article V of the Outer Space Treaty. Between 1964 and 65, the Legal Subcommittee had also drafted most of the details for a rescue and return agreement, even though the subcommittee’s sessions had been shortened those years by the United Nations’ crisis. The subcommittee had completed so much

Transition into détente  139 work that, had it not refocused on the Outer Space Treaty in 1966, the subcommittee likely would have completed that rescue and return agreement that year. These prior discussions centered on two main issues: the duty to rescue astronauts, and the duties to return astronauts and space objects.5 On the rescue of astronauts, the debate mainly concerned on who should control rescue operations. Rescue operations could take place in one of two legally relevant jurisdictions. Either a rescue would occur in an international area such as the high seas or the national territory of a foreign state. The Soviet Union wanted launching states to have the “exclusive right” to conduct rescue operations in international areas and the ability to direct rescue operations in foreign national territory. Both positions met with heavy resistance. The United States opposed an “exclusive right” to conduct rescue operations in international areas because it feared this could give a foreign state the ability to direct U.S. naval forces in a rescue operation. The United States also felt that every nation had a humanitarian duty to rescue when in a position to do so, and that duty should not be excused by the launching state. Third World nations, recognizing that they covered most of the world’s landmass and were most likely to have rescue operations conducted in their territory, objected to the idea that a space power could have the right to direct activities in their national territory. The Legal Subcommittee reached compromises on the duty to rescue in both international areas and sovereign territory. In international areas, the launching state would not have an exclusive right of rescue as the Soviet Union demanded, but other states would extend assistance only “if necessary” to assure a speedy rescue. For rescues in sovereign territory, rescue operations would remain under the control of the territorial state, although the territorial state would be required to engage in “close and continuing consultation” with the launching state.6 On the second issue of return, the debate centered around whether there should be any exceptions to the duty to return an astronaut or a space object after rescue or an unintended landing. The United States categorically opposed any conditions on return, especially in the case of astronauts, due to the humanitarian nature of rescue operations. The Soviet Union favored exceptions to the duty to return astronauts and space objects where they had not been launched for “peaceful purposes” or in accordance with principles of outer space law. In addition, the Soviet Union wanted to return a space object only if the launch of the object had been “officially announced,” such as through registration. The Soviet position was motivated by a desire not to return any intelligence gathering equipment that might fall into its hands. France also thought that there should be conditions on return, but for different reasons. France wanted to ensure that its national law would be respected. For example, an astronaut who violates national law after rescue should be detained. In addition, an astronaut who claims asylum after landing in its territory need not be returned.7 When the Legal Subcommittee resumed its attempt to draft the rescue and return agreement in 1967, the discussions focused upon this second issue – the conditions for return – as the main point of disagreement. The Soviet Union maintained that it was ridiculous to require the return of an astronaut who had engaged

140  Transition into détente in hostile acts or space objects launched for aggressive purposes. That was like returning an enemy soldier or unexploded munitions fired in a state of war. The Western delegations, including Belgium, France, the United Kingdom, and the United States, pointed out that under scenarios involving hostilities, the law of war would supersede the law of outer space under the principle of lex specialis (i.e., specialized law supplants general law). They also pointed out that the Outer Space Treaty, which they had just adopted, partially resolved the question of return. Article V of the treaty requires states to “safely and promptly” return astronauts without condition. There was no reason why the rescue agreement should adopt a narrower obligation than the Outer Space Treaty. Faced with the language it had already accepted in the Outer Space Treaty, the Soviet Union acknowledged that there should be no conditions on return of astronauts, but it sought to exclude space objects from the scope of the agreement. In this way, the rescue agreement would be consistent with Article V of the Outer Space Treaty, which only referred to the rescue and return of astronauts, not space objects. After working for years on an agreement that encompassed both astronauts and space objects, however, the majority of the Legal Subcommittee rejected the Soviet proposal. This was especially true of the Western delegations, which argued that the rescue agreement should not simply repeat the Outer Space Treaty. The prospect of completing the rescue agreement in 1967 at first seemed dim. The Legal Subcommittee concluded its session on July 14, 1967, without resolving their differences on the conditions for the return of astronauts and space objects. The fortunes for an agreement abruptly improved, however, when the COPUOS met on September 13, 1967, in advance of the U.N. General Assembly session. As the committee debated whether or not it should resume talks on a rescue agreement, Ambassador Morozov unexpectedly announced that the Soviet Union was now willing to include astronauts and space objects within the scope of the treaty. Other members of the committee immediately commented that, in light of the change in the Soviet position, a consensus could be reached on the rescue agreement. But the committee decided not to resume negotiations that session. Instead, it recommended that the matter be taken up again the following year. The General Assembly endorsed that view on November 3, 1967, in U.N. Resolution 2260 (XXII).8 Despite the COPUOS’s decision not to resume work until the next year, the Soviet Union and the United States continued to refine a draft rescue agreement in bilateral talks. On December  12, 1967, the superpowers presented the draft agreement to the Legal Subcommittee and asked for a special two-day session on December 14–15, 1967, to consider the matter. The draft was short and simple with only five substantive articles, but the fact that the superpowers had continued negotiations after the COPUOS had decided as a whole to resume next year produced resentment, especially from Third World nations. Egypt and India complained that they had been excluded from the talks in what was supposed to be a multilateral treaty. They were now presented with a fait accompli and expected to endorse the draft within 48  hours. The representatives of Sierra Leone and

Transition into détente  141 Sweden stated that they simply had no time to consult with their government to obtain instructions. The displeasure with the Soviet Union and the United States was due in part to fears that the finalization of the rescue agreement would impede the conclusion of a liability convention. India, for example, noted that the rescue agreement benefited only the space powers since they were the only states with astronauts who might need rescue. A convention on liability, on the other hand, benefited primarily the non-space powers and Third World nations that had little hope of reaching outer space on their own but were most likely to suffer damage from a falling satellite or launch mishap. India, therefore, felt that the negotiations for the rescue agreement and the liability convention had to proceed in parallel; otherwise, the non-spacefaring nations had no leverage to convince the space powers to accept liability for damages. Indeed, India announced that even if the committee adopted the rescue agreement, its government would not ratify the treaty until a liability convention was complete. Other nations joined this position.9 On December 19, 1967, despite reservations about how the treaty had been finalized, the U.N. General Assembly endorsed the “Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objected Launched into Outer Space” under U.N. Resolution 2345 (XXII) without opposition. The Rescue Agreement, however, proved to be the last treaty on outer space law drafted primarily by the superpowers.10

End of the space race A factor that helped put an end to the superpowers’ dominance in the writing of space law was the conclusion of the Space Race. With the end of the Space Race, the superpowers turned to more cooperative ventures in space. After the Soviets launched the first satellite in 1957, the United States sought to soothe its ego by achieving a notable first of its own in outer space. But time and again, the Soviet Union upstaged the United States by launching the first man into orbit, the first probe to reach the moon, and the first probe to enter solar orbit. This resulted in President Kennedy’s call in May 1961 to land on the moon. In the midst of this competition, each side sought to emphasize the scientific value of space exploration and international cooperation while avoiding an arms race in space. Although efforts to avoid an arms race led to the 1963 Declaration of Legal Principles and the 1967 Outer Space Treaty, genuine technical cooperation between the Soviet Union and the United States remained elusive until the end of the Space Race on July 19, 1969. By the mid-1960s, the Soviet Union had lost the Space Race, if the finishing line of that race was a manned landing on the moon. Internecine conflict between Soviet engineering bureaus fatally undermined the nation’s ability to compete. While NASA had resolved all major engineering problems with the development of the Saturn V rocket by the end of 1965, the Soviet Union was still trying to decide what rocket to build for its journey to the moon. There were two choices. One was Sergei Korolev’s N-1, which improved upon the design of the R-7 that

142  Transition into détente carried Sputnik into orbit. As with the R-7, the N-1 would use liquid cryogenic fuels, namely oxygen and hydrogen, which had a good efficiency rating but made it a poor military weapon. As a result, in September 1964, Korolev faced competition from a rival engineering design bureau led by Vladimir Chelomey, which proposed the UR-700 rocket. Using a solid fuel, this rocket was much more appealing to the military, and Chelomey sold it as a missile capable of taking the Soviets to the moon to boot. Rather than making an early decision to focus the nation’s resources on one rocket, the Soviet Union spent years investing in both. Smaller engineering projects, which Korolev had been relying upon to provide key components for the N-1, had to be canceled due to financial constraints caused by funding two large rocket programs. The Soviet Union did not fully commit itself to a single rocket design for a moon landing until November 1966. After a review of both the N-1 and UR-700, the Soviet government finally decided to back the N-1. By this time, however, it was too late. In January 1966, Korolev unexpectedly died during a low-risk surgical procedure. Korolev was key to the Soviet Union’s space program not so much because he was an engineering genius but because of his ability to navigate Soviet bureaucracy and manage other engineers. Korolev’s successor, Vasily Mishin, was not so adept in these areas. Moreover, the earlier funding cuts to the N-1 program resulted in the cancellation of quality control checks and ground testing, which ultimately resulted in the failure of the N-1 when tested. Quality control was especially important when it came to the N-1’s design. Unlike the United States’ Saturn V rocket, which relied on five powerful F-1 engines in the first stage, the N-1 relied upon a cluster of 30 engines in the first stage. Korolev made the decision to cluster more but less powerful engines to avoid the engineering challenges created by combustion instability from a larger engine, a problem that NASA spent considerable resources solving. With so many rocket engines in the first stage, however, more could go wrong, and quality control became even more critical. If even a single engine failed, the rocket’s course could deviate, or the entire rocket could explode. But with the funding cuts to the N-1 program, the Soviet Union tested only two of every six randomly selected group of engines. This lackluster quality control contributed to the overall failure of the N-1. As the problems with the N-1 program grew, the Soviet Union tried to manage public expectations in the Space Race by emphasizing a goal other than a moon landing. At first, the Soviet Union set a goal to conduct the first manned circumlunar mission with a Soyuz spacecraft. With the Soyuz 1 accident in April 1967, however, achieving this goal in the short term became unrealistic. The Soviet Union then began to focus on sending an unmanned probe to retrieve a lunar sample on the moon’s surface before returning to the earth. An unmanned lunar sample retrieval mission would have the benefit of demonstrating the Soviet Union’s ability to achieve the same mission as NASA at less cost and without risk to human life.11 Meanwhile, NASA proceeded full steam ahead toward a moon landing. A critical moment came on November 9, 1967, when NASA conducted the first “all-up”

Transition into détente  143 test of a Saturn V rocket during the Apollo 4 mission. Normally, rocket stages are tested one at a time to prove that each stage works before combining all the stages in one last test. NASA saved time and money by testing all stages at the same time in an “all-up” test. NASA was able to commit to an all-up test because, unlike the Soviet Union, it had invested in quality control for each component during the manufacturing process, especially after the scrutiny that NASA faced following the Apollo 1 fire. With good quality control, NASA could conduct an all-up test with confidence. After the success of Apollo 4, NASA marched ahead with further missions. On January 22, 1968, the Apollo 5 mission tested the lunar module in orbit. On April 4, 1968, the Apollo 6 mission performed a second all-up test of the Saturn V. On October 11, 1968, Apollo 7 made history by launching the first American astronauts into space since the Apollo 1 accident.12 As NASA resumed manned spaceflight, the Soviet Union made headway toward its own goal to retrieve a lunar sample using an unmanned probe. On September 15, 1968, the Soviet Union launched Zond-5, the first probe to enter circumlunar orbit and return to the earth. Although the Soviet Luna 3 probe had made it to the moon and back in 1959, this probe returned to the earth immediately following a figure-8 trajectory, whereas Zond-5 had actually orbited the moon before returning to the earth. Zond-5 carried aboard it an assortment of biological experiments, including tortoises, and was the first probe to photograph the earth as a whole from the moon. The Zond-5 mission was so successful that the Soviet Union reconsidered its plan to conduct the first manned circumlunar mission using a Soyuz spacecraft. On October 25 and 26, 1968, the Soviet Union attempted to put its manned spaceflight program back on track by making a second attempt at the Soyuz 1 mission. As in the original mission, the plan was to launch two Soyuz spacecraft and have them dock in orbit. This time, the Soviet Union launched the unmanned Soyuz 2 first. Soyuz 3, piloted by Georgiy Beregovoy, launched the next day. Although Beregovoy managed to rendezvous with Soyuz 2, he was unable to dock due to piloting error that expended too much of Soyuz 3’s available fuel.13 In December 1968, NASA dashed the Soviet Union’s hope of conducting the first manned circumlunar mission with the Apollo 8 mission. Apollo 8 is perhaps the most stunning mission during the Apollo program – more so than even the Apollo 11 moon landing. On December 21, 1968, Frank Borman, James Lovell, and William Anders rocketed through the atmosphere on their mission to the moon. Three hours into launch, they received a humble instruction, “You are go for TLI.” The message, which told the crew to ignite the S-IVB engines for translunar injection (TLI), accelerated the astronauts to speeds faster than any human being had ever experienced and put the three astronauts on course to become the first humans to exit the earth’s gravitational field. That historic moment occurred on December 23, 1968, as the spacecraft slowly decelerated to 1,218 meters per second as it exited the earth’s gravity before accelerating again as it was caught by the moon’s gravity. This moment was like a skateboarder losing speed while rising to the top of a crest before gaining speed coming down the other side. On Christmas Eve 1968, Apollo 8 entered lunar orbit. For the first time, the unaided human

144  Transition into détente eye saw the dark side of the moon and earthrise. In a live television broadcast, the crew read from the book of Genesis, and Borman ended by saying, “And from the crew of Apollo 8, we close with goodnight, good luck, a Merry Christmas, and God bless all of you-all of you on the good earth.” On Christmas morning, Apollo 8 began its journey home and landed in the Pacific Ocean on December 27, 1968. After the stunning success of Apollo 8, the Soviet Union pivoted further to other outer space objectives in a desperate effort to minimize the coming public relations disaster of an American moon landing. In addition to emphasizing unmanned missions to the moon, the Soviet Union began touting efforts to build the first space station. In January 1969, the Soviet Union finally succeeded in a docking mission between Soyuz 4 and Soyuz 5. The Soviet Union described the docking and crew transfer between the two spacecraft as the first experimental space station. NASA meanwhile completed the last two Apollo missions in anticipation of a moon landing. On March 9, 1969, the Apollo 9 mission tested the lunar module in low earth orbit to confirm that its engine would ignite in a vacuum. On May 18, 1969, the Apollo 10 mission conducted a dry run of the moon landing that performed virtually every step of the moon landing mission except the landing itself. During this second manned mission to the moon, Thomas Stafford and Eugene Cernan piloted the lunar module to an altitude of 47,000 feet above the moon before returning to the command module. Had NASA wished to and planned beforehand, Apollo 10 could very well have been the moon landing mission. But NASA reasoned that to ensure the greatest possible chance of success, the actual mission to land on the moon should encounter the fewest number of firsts. By conducting a near landing, the astronauts were able to gain insights about the moon’s uneven gravitational field, examine possible landing sites, and practice communication procedures between two spacecraft – the lunar module and the command module – while in lunar orbit. With the successful end of the Apollo 10 mission on May 26, 1969, it was obvious that NASA would soon land on the moon. The Soviet Union, however, was not losing the Space Race without a fight. On July 16, 1969, NASA launched Apollo 11 with Neil Armstrong, Buzz Aldrin, and Michael Collins. On their way to the moon, the crew learned that the Soviet Union had launched Luna-15 on July 13, 1969, just a few days before their own launch. The Soviets planned to use Luna-15 to make a soft landing on the moon to retrieve a lunar sample before returning to the earth. Although Luna-15 had launched first and reached the moon by July 17, it needed to perform a series of maneuvers over the next three days to correct its orbital path. Thus, Luna-15 was not in position for a landing until July 20, 1969, the same day that Apollo 11 entered lunar orbit. The Soviets planned to land Luna-15 just two hours before Apollo 11, though the Soviets ultimately delayed their landing another 18  hours to correct Luna-15’s trajectory. At 8:17 PM UTC, the Apollo 11 lunar module, Eagle, landed on the moon, and approximately six hours later, Armstrong and Aldrin set foot on the lunar surface. The next day, the astronauts lifted off from the moon and returned to the command module for the journey home. Two hours before they left the lunar surface, the Soviet Union attempted to land Luna-15, but the Soviet Union lost

Transition into détente  145 contact with the spacecraft during descent. It struck the side of a mountain. The Soviet Union, in its characteristic need to save face rather than face reality, spun the failure as a success because Luna-15 “reached” the moon. Some of the key provisions of the 1967 Outer Space Treaty were applied in practice for the first time as a result of the Apollo 11 mission. For example, NASA acknowledged beforehand that the decision to unfurl an American flag on the moon could lead to accusations that the United States was violating Article II of the treaty by claiming the moon. The NASA Legislative Affairs Office responded by issuing a statement that disclaimed assertions of sovereignty and cited the Outer Space Treaty. NASA also told Armstrong to avoid any statements that might be interpreted as laying claim to the moon. After the Apollo 11 mission, the United States distributed lunar samples to every country, which was done for reasons of public relations, but the act was also consistent with the duty in Article XI to inform the public “to the greatest extent feasible and practicable” of the results of activities on celestial bodies.14 After the moon landing, the Soviet Union and the United States finally sought genuine cooperation in outer space. Some efforts at cooperation had been made during the early 1960s, as reflected by the Blagonravov-Dryden agreement in 1962. These early efforts, however, had always been impeded in scope by the broader context of the Space Race. After Apollo 11, NASA Administrator Thomas O. Paine contacted the Soviet Academy of Sciences with the tacit support of the Nixon Administration to explore a potential expansion of cooperation in outer space. By July 1970, the discussions advanced to the point where President Nixon publicly acknowledged the United States’ interest in cooperating with the Soviet Union in space. One promising project that the Soviet Union and the United States agreed upon was the development of a compatible docking system. The project had been inspired in part by the 1969 Academy Award-winning movie Marooned, in which a Soviet spacecraft comes to the aid of American astronauts stranded in orbit. A compatible docking system would be necessary in the event of any future rescue mission between American and Soviet spacecraft. The rescue scenario became more probable in April 1970 when an oxygen tank explosion aboard Apollo 13 nearly resulted in the first fatalities in space, although the possibility of sending a rescue spacecraft had only been given fleeting consideration during that mission. With the Soviet Union now focused on building the world’s first space station, Salyut 1, which would launch in April 1971, a compatible docking also appeared necessary if an American spacecraft were to ever pay a visit. These talks eventually led to the Apollo-Soyuz Test Project in 1975. As the 1970s dawned, a general détente fell on the Cold War. A détente was possible not only because of the end of the Space Race but because the Soviet Union had achieved a fundamental change in the global military-strategic situation. During the 1950s and 1960s, much of the Soviet Union’s bluster reflected its insecurity. The United States had surrounded the Soviet Union with airbases and strategic bombers capable of dropping a nuclear bomb on every major Soviet city, and the Soviet Union had no way to respond in kind. By the late 1970s,

146  Transition into détente however, the Soviet Union no longer felt so insecure. Enough intercontinental ballistic missiles had been constructed to attain a measure of strategic parity. At the same time, the conflict in Vietnam was sapping the United States’ strength and its international reputation. From a position of relative equality, a détente between the superpowers became possible.15 Détente and the end of the Space Race also meant that the Soviet Union and the United States no longer dominated the development of outer space law. Certainly, the view of these space powers remained important, and in many cases necessary, to the adoption of a law for space. But with the matter of disarmament in space largely settled by the Outer Space Treaty and growing cooperation between the superpowers, the Soviet Union and the United States were no longer the protagonists in the development of the law. From 1970 onward, the Committee on the Peaceful Uses of Outer Space devoted itself to legal issues of interest primarily to other states, especially developing nations, rather than the interests of the superpowers.

Notes 1 Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Leiden: Matinus Nijhoff, 2010), ix–x; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.44 (19 September 1966), 1–8; U.N. First Committee, 21st Sess., Verbatim Records, U.N. Docs. A/AC.1/PV.1492 (17 December 1966), 6; Office of the Historian, State Department, Leonard Carpenter Meeker (1916–2014), available at https:// history.state.gov/departmenthistory/people/meeker-leonard-carpenter. 2 U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.47–48 (17–19 April 1967), Statements by Canada, France, Hungary, India, Lebanon, Japan, Mexico, Soviet Union, United Kingdom, and United States. 3 Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945– 1974 (Washington, DC: NASA, 2000), 446–447, 454, 460, 463, 556–560, 571–576, 581–590. 4 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.76 (20 June 1967), 4 (Soviet Union); U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Sixth Session (19 June–14 July 1967) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/37 (14 July 1967), 2–3; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.49–51 (13–15 September 1967), 4–5. 5 U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4141 (14 July  1959), 17; U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.2 (29 May 1962), 4–6; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Second Session (16 April–3 May 1963) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/12 (6 May  1963), 2–4, Annexes; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.16 (16 April 1963), 4; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.24 (22 November 1963), 38–41 (Japan); U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1342, 1344, 1346 (2, 4–5 December 1963), 67 (Egypt), 175 (Japan), 176 (Peru), 190 (Nigeria); United Nations, General Assembly Resolution 1962 (XVIII), Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, A/RES/1962(XVIII) (13 December 1963); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.20 (9 September 1963),

Transition into détente  147 27 (Soviet Union); U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5785 (13 November  1964), 11; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.29–37 (9–26 March 1964), 15, 31, 34; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (5–23 October 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/21/Add.2 (23 October 1964), 5; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.26–30 (27 October–2 November 1964), Statements by Australia, Austria, France, Italy, Hungary, Poland, Soviet Union, United Kingdom, and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.39 (7 October 1965), 80 (France). 6 U.N. COPUOS, Union of Soviet Socialist Republics: Draft Declaration of the Basic Principles Governing the Activities of States Pertaining to the Exploration and Use of Outer Space, U.N. Doc. A/AC.105/L.2 (10 September 1962); U.N. COPUOS Legal Sub-Committee, United States of America Proposal, International Agreement on Assistance to and Return of Astronauts and Objects Launched into Outer Space, U.N. Doc. A/AC.105/C.2/L.9 (9 March 1964); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.29–37 (9–26 March 1964), 15, 25, 31–32, 34, 38, 40, 51–52, 56, 58, 65, 68, 75–76; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.38–39 (5–6 October 1964), 6; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (9–26 March 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/19 (26 March 1964), Annex I at 7, 10, 12–14, 20, 23–25; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (5–23 October 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/21/Add.2 (23 October  1964), 4, 10–13, 15–16, Annex IV at 4–5; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (5–23 October 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/21/Add.2 (23 October  1964), Annex I at 3–4; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.30 (2 November 1964), 11 (Brazil); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.45 (23 September 1965), 5–6. 7 U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (5–23 October 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/21/Add.2 (23 October 1964), 5, 17–20, Annex IV at 2–5; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (9–26 March 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/19 (26 March  1964), Annex I  at 10, 14, 20, 24; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/ AC.105/C.2/SR.29–37 (9–26 March 1964), 15, 32–34, 58–59; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.30 (2 November 1964), 11 (Brazil). 8 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.42–44, 46–47 (21–24 September 1965), Statements by Argentina, Australia, Belgium, Bulgaria, Canada, France, Hungary, Lebanon, Mexico, Poland, Romania, Soviet Union, United Kingdom, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.76 (20 June 1967), 5, 7; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.85 (14 July 1967), 3–8, 11; U.N. COPUOS Legal Sub-Committee, Report of the Legal SubCommittee on the Work of Its Sixth Session (19 June–14 July 1967) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/37 (14 July 1967), Annex I at 1; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.49–51 (13–15 September 1967), Statements by Australia, Czechoslovakia, India, Poland, Soviet Union, Sweden, and United States; U.N. First Committee, 22nd Sess., Official Records, U.N. Docs. A/C.1/PV.1497–1501 (17–20 October 1967), Statements by Australia, Austria, Bulgaria, Canada, France, India, Italy, Japan, Ukraine, and United States; United

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9

10 11 12

13 14

15

nations, General Assembly Resolution 2260 (XXII), Report on the Committee on the Peaceful Uses of Outer Space, A/RES/2260 (XXII) (3 November 1967); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.86 (14 December 1967), 3 (Chairman), 4–5 (Soviet Union), 11 (Japan). U.N. COPUOS Legal Sub-Committee, Draft Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space, U.N. Doc. A/AC.105/C.2/L.28 (12 December 1967); U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Special Session (14–15 December  1967) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/ AC.105/43 (15 December 1967), 1; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.86–87 (14–15 December 1967), Statements by Chairman, Bulgaria, Egypt, India, Sierra Leone, and Sweden; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/6804 (27 September 1967), 34; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.111–131 (9 June–4 July 1969), 135 (India); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.52 (16 December 1967), 27–30 (Sierra Leone), 36–40 (India); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.30 (2 November 1964), 12 (Brazil), 14 (India), 19 (Lebanon). United Nations, General Assembly Resolution 2345 (XXII), Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, A/RES/2345 (XXII) (16 December 1967). Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945– 1974 (Washington, DC: NASA, 2000), 227, 319–321, 325, 393, 418–421, 480–483, 498, 514, 546, 554–560, 581–590, 675, 682–683, 696. Charles Murray and Catherine Bly Cox, Apollo (New York: Simon & Schuster, 1989), Chapters  10–11, 17, 20, 22; William David Compton, Where No Man Has Gone Before: A  History of Apollo Lunar Exploration Missions (Washington, DC: NASA, 1989), 114, 132; Courney G. Brooks, James M. Grimwood, and Loyd S. Swenson, Jr., Chariots for Apollo: A History of Manned Lunar Spacecraft (Washington, DC: NASA, 1979), 242, 266–267. Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945– 1974 (Washington, DC: NASA, 2000), 616–618, 653–656, 658–661; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.53–60 (15–22 October 1968), 4. Charles Murray and Catherine Bly Cox, Apollo (New York: Simon & Schuster, 1989), Chapters 22–25; William David Compton, Where No Man Has Gone Before: A History of Apollo Lunar Exploration Missions (Washington, DC: NASA, 1989), 132–141; Courney G. Brooks, James M. Grimwood, and Loyd S. Swenson, Jr., Chariots for Apollo: A  History of Manned Lunar Spacecraft (Washington, DC: NASA, 1979), 235, 257–559, 276, 278, 281, 284, 290, 300, 307, 310–312, 329–330, 340, 342–344, 353–354; Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–1974 (Washington, DC: NASA, 2000), 662, 670–678, 694–696; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 225; Edward S Goldstein, Gregory C. La Rosa, and David S. Schuman, “Present at the Creation: Paul G. Dembling, Author of NASA’s Founding Legislation,” 50th Magazine, NASA, available at www.nasa.gov/50th/50th_magazine/demblingInterview.html; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.61–67 (8–15 September 1969), 36. U.N. COPUOS Legal Sub-committee, Report of the Legal Sub-Committee on the Work of Its Tenth Session (7 June–2 July 1971), U.N. Doc. A/AC.105/94 (8 July 1971), 3; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.152–169 (7 June–2 July 1971), 9–10, 22, 28–30, 33–35, 37–38; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.99–100 (2–3 September  1971), 31 (United States), 64 (Sweden); Edward Clinton Ezell and Linda Neuman Ezell, The Partnership: A History of the Apollo-Soyuz Test Project (Mineola, NY: Dover Publications, Inc., 2010), 4, 97–99, 138–139.

8 The peaceful uses of outer space

After completing the Outer Space Treaty, the COPUOS was finally able to turn to its original mandate: the peaceful uses of outer space. When the United States first proposed the COPUOS in 1958, “peaceful uses” had been added to the moniker specifically to exclude matters of disarmament from the committee’s purview. As demonstrated by the ad hoc committee’s session in 1959, which took place without the participation of the Soviet Union, the issues that the committee was meant to address were matters such as liability for space vehicle accidents, the registration and tracking of space objects, and the rescue of astronauts. It proved impossible, however, to make progress on the peaceful uses of outer space without the Soviet Union, and the Soviet Union refused to participate until disarmament had been addressed. The Outer Space Treaty finally settled the matter of disarmament, which now allowed the COPUOS to address the peaceful uses of outer space. The first matter that the committee turned to had been the Rescue Agreement in 1967. Between 1968 and 1974, the committee addressed two other matters on the peaceful use of outer space: liability and registration.

Framework for liability The COPUOS had long recognized the need for a liability convention. In 1959, the ad hoc COPUOS identified liability for space vehicle accidents as one of the most pressing legal issues created by space activities. When the permanent COPUOS convened for the first substantive meeting in 1962, the United States suggested forming a panel of experts to begin drafting a treaty. In 1963, Belgium introduced a draft liability convention titled “Unification of Certain Rules Governing Liability for Damage Caused by Space Vehicles.” That same year, the United Nations recognized that states are “internationally liable for damage to a foreign State or to its natural or juridical persons” caused by a space object in the Declaration of Legal Principles. Article VII of the Outer Space Treaty contains virtually the same language.1 Space objects falling from the sky also served as an occasional reminder that a liability convention was necessary. During a U.N. General Assembly meeting on September 14, 1962, the United States showcased a 14-pound fragment of the Soviet spacecraft Korabl-Sputnik 1 that had landed in the middle of a street in

150  The peaceful uses of outer space Manitowoc, Wisconsin, as evidence of the urgent need for a liability convention. On June 5, 1969, fragments from a suspected Soviet satellite struck the Japanese freighter Dai Chi Chinei in the Strait of Tartary. According to Japan, the vessel was badly damaged, and five crew members were seriously injured. The Japanese delegation reported the incident to the COPUOS Legal Subcommittee as it was reconvening that year to discuss the liability convention. The Dai Chi Chinei incident is the only known case of a falling space object causing serious injury on the ground.2 The COPUOS Legal Subcommittee worked exclusively on drafting a liability convention starting in 1968. The focus had been driven in part by resentment from Third World nations after the adoption of the Rescue Agreement in 1967. These states felt that the Rescue Agreement should have been held in abeyance until there was also agreement on a liability convention. Fortunately, when the committee turned to the liability convention, it had already completed a substantial amount of work. In fact, by 1964, three nations – Belgium, Hungary, and the United States – had submitted draft liability conventions to the Legal Subcommittee. Based on the proposals of these three nations, the committee identified a number of areas of disagreement. Some of these disagreements broke along the lines of the Cold War, but many were simply due to differing legal cultures. The topics that the Legal Subcommittee discussed up to 1968 can be placed into three broad categories: (1) the standard for liability, (2) the elements that need to be satisfied for a claimant to obtain compensation, and (3) the procedure for claiming compensation.3 The first and most important issue that had to be resolved was the standard of liability under the treaty. There were two possible standards. The first was faultbased liability. In American legal parlance, this means that a claimant seeking compensation must prove that the launching state was negligent or failed to fulfill some duty and that negligence or failure caused injury to the claimant. The second option was absolute liability. Under this regime, the claimant need not prove negligence or the breach of duty. Hungary suggested that a different liability regime applies depending on the environment. Damage “caused in outer space” would be subject to fault-based liability while damage that “has occurred on the ground or in the atmosphere” would be subject to absolute liability. The philosophy behind the different liability regimes was that no one can reasonably be expected to protect themselves from an object falling from outer space, so a claimant need not prove negligence in this scenario. For a space power operating in outer space, however, reasonable measures can be taken to protect oneself, such as changing course to avoid the collision of spacecraft. At first, an agreement could not be reached on the standard of liability because the United States insisted that absolute liability should apply in all environments. The United States took this position in an attempt to avoid a legal definition of airspace and outer space. Under the Hungarian proposal, the treaty would seemingly need to define precisely where the atmosphere ended and where outer space began to delineate where absolute liability ends and where fault-based liability begins. Defining outer space, however, was extremely difficult. The Legal Subcommittee

The peaceful uses of outer space 151 had previously referred an attempt to define space to the Technical Subcommittee, which concluded that there are no durable technical criteria to define outer space. Moreover, a definition of airspace could result in demarcation of the upper boundary of national sovereignty, which in turn could hinder intelligence gathering by reconnaissance satellites if they had to orbit at higher altitudes to avoid infringing on sovereign airspace. Other members of the COPUOS pointed out, however, that the application of absolute liability in space made no sense. In a collision between two spacecraft, each nation would be required to pay for the cost of the other’s spacecraft. Criticism of the American position came not only from Eastern bloc nations but also from Canada, Italy, and Mexico. The United States suggested that the differences of opinion on the standard of liability could be avoided by limiting the scope of the liability convention to damage caused by a space object on the surface or the earth or in the air. The committee was unanimous that absolute liability applies in this scenario, so the committee could proceed where consensus existed. The proposal became untenable, however, after the adoption of the 1967 Outer Space Treaty. Article VII of the treaty provides that states are liable for damage “on the Earth, in air space or in outer space.” The committee did not want to take a step backward now by excluding space from the convention when liability in space had already been recognized by the Outer Space Treaty. Two critical compromises ultimately resulted in an agreement that absolute liability applies to damage on the earth and in the atmosphere and that fault-based liability applies to outer space. The first was a compromise on language to avoid references to the “atmosphere” or “outer space” as had been stated in the Hungarian proposal. Instead, the committee agreed that absolute liability applies to damage “on the surface of the earth or to aircraft in flight,” and fault-based liability applies to damage “caused to a space object of one State . . . by the space object of another State.” By wording the treaty to refer to objects damaged, rather than the environment in which the damage occurred, the committee carefully avoided the necessity of defining airspace or outer space. The second compromise was an agreement that the treaty would not apply to damage caused on the surface of a celestial body. If a probe fell on the moon and collided with a moon base, for example, there is some argument that absolute liability rather than fault-based liability should apply. The situation shared similarities to damage on the earth; someone on the surface of the celestial body might not be able to take any reasonable action to protect himself or herself from a falling space object. With the United States making strides toward a moon landing in 1968, this concern became more realistic. The committee agreed that the Liability Convention would have no application to damage on the surface of another celestial body. Subsequent edits to the draft liability convention, however, unintentionally suggested that the treaty does apply to the surface of celestial bodies. At some point, the COPUOS decided to clarify that fault-based liability applies to damage caused by one space object to the space object of another state only where the damage occurs “elsewhere than on the surface of the earth.” A concern had apparently been raised that without this additional language, the treaty could suggest

152  The peaceful uses of outer space that fault-based liability applies where a space object happens to damage a space object on the surface of the earth, such as a rocket sitting on the launch pad, when in fact absolute liability should apply. But the additional clause also had the effect of seeming to emphasize that fault-based liability – and therefore the treaty – applies anywhere other than the surface of the earth, including the surface of celestial bodies. Before the committee adopted the Liability Convention, Italy and Sweden pointed out the apparent error in drafting. The COPUOS chose not to correct the issue, but many members of the committee reiterated the understanding that the Liability Convention does not apply to the surface of celestial bodies. This error, caused by the difficulty of precise and technical writing, is just one example of the complexities the COPUOS faced when drafting the Liability Convention. The committee decided to include a few narrow exceptions to the application of absolute liability for damage caused on the surface of the earth or to aircraft in flight. The Soviet Union and the United States proposed that absolute liability does not apply where a claimant was grossly negligent or engaged in misconduct that contributed to the injury. The United States cited, as an example, an aircraft that ignores rocket launch warnings and flies into the path of a rocket. Hungary suggested that absolute liability should not apply in any case of force majeure, meaning an unforeseeable event like a natural disaster. This was rejected as an exception that would swallow the rule. While the committee accepted limited exceptions to absolute liability, developing nations such as Egypt and India did so only reluctantly.4 The second broad issue that the COPUOS discussed was the elements that a claimant had to prove to obtain compensation under the liability convention. There were four basic elements to any claim: (1) the victim had to be a qualified claimant, (2) the claim had to be brought against a launching state, (3) a space object caused the damage, and (4) the damage claimed is something for which the launching state has agreed to compensate under the treaty. The definition of a qualified claimant was more complicated than it might first appear. As a preliminary matter, only states can be claimants. The liability convention is an agreement between states, so only contracting states have standing to invoke it. A state, in turn, can claim compensation for damage occurring in its territory or to nationals, whether natural persons or corporations. A space object landing in a state’s territory gives that state a straightforward claim. A space object injuring a national outside the state’s territory, however, creates complications. A  risk arises that multiple states could file claims for the same injury. For example, if a national of Country A visits Country B and is then struck by a space object from Country C, Counties A and B would both have a potential claim against Country C. The COPUOS considered other permutations of this problem that added to the complications. For example, if a national of Country C was also in Country B and injured by the same space object from Country C, Country B would potentially have a claim against Country C for an injury to Country C’s own national. Many delegates found this latter hypothetical unpalatable and a violation of international norms that prohibit a national from suing his or her own country via another country. The COPUOS resolved these matters by applying

The peaceful uses of outer space  153 two general principles: there should be only one claimant per injury, and a claimant cannot assert damages on behalf of a launching state’s own national.5 Defining a “launching state,” or the defendant to a claim, also presented many problems. By the early 1960s, it was already commonplace for multiple states to be involved in a launch. NASA, for example, routinely offered launch services for scientific experiments to the United Kingdom and other states that did not have their own launch capability. Understandably, the United States did not want to be solely liable for every single one of these launches. Some developing nations, especially equatorial ones, also wanted to limit their liability where they offered the use of their territory for a launch. Kenya, for example, had entered an agreement with NASA and Italy in 1962 to allow the use of the San Marco launch platform, a modified oil rig off the Kenyan coast. At first, the United States suggested resolving the matter by making the “State of Registry” the liable state. This had the benefit of clearly identifying a single responsible party. The COPUOS, however, rejected this option as it would effectively require the committee to first define a state of registry and to create a mandatory registration system. Further, even if the COPUOS made the detour to define a “State of Registry,” the Liability Convention would still have to identify a liable launching state if no one registered the launch. The committee decided, therefore, that it was better off defining a launching state for purposes of the Liability Convention that was not dependent upon a state of registration. The committee agreed that there should be four overlapping definitions of a launching state – a state the launches, a state that procures a launch, a state from whose territory a launch is done, and a state from whose facility a launch is done. The committee incorporated all four categories into Article VII of the Outer Space Treaty in 1966 while the work on the Liability Convention was still pending. The overlapping definitions meant that many states could be considered a “launching state” for the same launch, which was precisely the committee’s intent. The COPUOS reasoned that the Liability Convention should be victim-oriented and allow the claimant to sue the greatest number of responsible states to ensure that victims are compensated. Using the same logic, the committee also adopted a rule of joint and several liability. This meant a claimant may seek full compensation for all damages from any one or more launching state without identifying all launching states. This rule places the burden on a launching state, not the claimant, to identify other potentially responsible parties if the launching state wants to spread its liability with other states. Some nations suggested that a launching state that lent the use of territory or a facility for a launch should be only secondarily liable, meaning subject to a claim only if a state that “launched” or “procured” a launch could not be found. The suggestion came from France and European states, which relied on places outside Europe, such as French Guiana, to conduct launches. The COPUOS rejected the proposal under the same victim-oriented philosophy that a claimant should have the maximum number of launching states to sue. Moreover, the allocation of liability was the responsibility of the launching states. For example, the committee reasoned that an equatorial state lending its territory for a launch would

154  The peaceful uses of outer space be responsible for specifying in a bilateral agreement the allocation of liability between itself and the state conducting the launch in its territory in the event of an accident. Of the various categories of launching states, the most ambiguous was a state that “procures” a launch. The committee debated the meaning of this category at length. The core criteria for procuring a launch was some ability to control the launch or subsequent operation of the space object. One example the committee discussed was a state that merely manufactured a rocket or a space object for another state; the committee agreed that the manufacturing state has not “procured” a launch in this case. Another example the committee discussed was a state that offers technicians to assist in a launch; such technical assistance without official capacity to control the launch does not mean the state is procuring a launch. These discussions served to assuage the United States’ concerns, which often provided equipment and technical assistance to other nations’ space programs.6 The third element of a claim was the definition of a “space object.” There was no dispute that space objects at minimum included objects that operate in space, such as spaceships, satellites, and space stations. The matter was complicated, however, because there are many components integral to a launch that are never intended to operate in or even reach outer space, such as first-stage rocket boosters. This made the definition of a space object more difficult than in analogous areas of law, such as aviation or maritime law, because aircraft and ships do not shed key components on the way to their operational environment. The committee agreed that a space object should be interpreted broadly so that every stage of the launch, the space vehicle, and any component part of these items are covered.7 The last element requiring definition was the meaning and scope of “damages.” The central debate here concerned claims for “indirect” or “consequential” damages. For example, if a space object fell on a factory, the damages that result from the incident might include the physical damage to a building as well as lost business while the factory halted production to conduct repairs. There was no question that, in a case such as this, compensation must be given for the physical damage to the building. The committee also agreed that “indirect” damages should also be covered, which meant that compensation might be provided for lost business. The problem, however, was how lost business might be calculated. Numerous national laws and customs impose varying obligations on a victim to mitigate damages, and other rules might limit certain profits or business loss as too speculative. The calculation of damages can become very nuanced and subject to specific circumstances. For example, if the owner of the factory damaged by the space object chose to simply close the business rather than conduct repairs to reopen, questions as to how and whether the factory owner should be compensated for any lost profits could vary significantly based on local custom and national law. The COPUOS identified three possible solutions to the calculation of “indirect” damages. All three proposals sought to refer to existing bodies of law for precise damage calculations. First, Hungary proposed the application of the national law of the launching state to calculate damages. This proposal received no support outside the Eastern bloc. The rest of the COPUOS argued it was unjust to apply

The peaceful uses of outer space 155 the law of the launching state to determine the victim’s compensation. Second, Belgium proposed the use of either the law of the claimant state or the national law of the place where the injury occurred. The vast majority of the COPUOS supported this approach as more victim oriented and just. The final option proposed by the United States was the use of principles of international law to determine damages. No one strongly opposed this approach, but many felt that there were too few precedents under international law to provide a precise calculation of damages, especially when compared to the mountains of precedential decisions in any national court system. The COPUOS was unable to come to any agreement on this point through 1968. The COPUOS also debated whether certain limits should be placed on damages. One proposal by Hungary was to exclude nuclear damages from the scope of the treaty. This proposal was understandable in the context of developing international law in the 1960s. The 1950s and early 1960s were a time when the Soviet Union and the United States were harnessing nuclear power for peaceful, civilian purposes. In 1954, for example, the Soviet Union began operating the world’s first nuclear power plant in Obninsk. In 1962, the United States launched the NS Savannah, the world’s first nuclear-powered merchant ship. These developments led to a series of new treaties governing the potential liability created by civilian use of nuclear power, including the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy, the 1962 Convention on the Liability of Operators of Nuclear Ships, and the 1963 Vienna Convention on Civil Liability for Nuclear Damage. A related suggestion by Hungary and the United States was for the Liability Convention to include a cap on the maximum amount of compensation owed for a single accident. Such caps on liability had been included in the various treaties on nuclear liability to encourage the nascent nuclear power industry. The United States suggested that a similar cap for space accidents might be of interest to developing nations to encourage their efforts to develop space capabilities by limiting their risk and insurance costs. But in 1968, after the signing of the Rescue Agreement, developing nations viewed these proposals to limit liability with suspicion and as another way that the law of outer space was being drafted to favor the space powers. As a result, the COPUOS was unable to reach a consensus on these limitations to damages.8 The last overarching topic for the Liability Convention was the procedure for seeking compensation. The COPUOS agreed fairly quickly on a few basic procedural aspects that a claimant had to follow. Namely, a claim must be presented within a limited amount of time, such as one year, the claim must be presented initially through diplomatic channels, and a claimant need not exhaust local remedies. This last agreement was important because a general principle of international law normally requires that a claimant goes through any local or national process before bringing a claim diplomatically. The elimination of the local remedy requirement was intended to speed up the compensation process. A claimant, however, would not be allowed to pursue a claim under the treaty and through local remedies at the same time. But the committee was unable to reach a consensus on how disputed claims should be resolved if diplomacy failed. The

156  The peaceful uses of outer space committee was unanimous that the Liability Convention should provide for some type of tribunal or arbitration process, the details of which were not hotly contested. The real area of disagreement was whether the arbitration process should be mandatory and binding upon the states. The Soviet Union and Eastern bloc states rejected any compulsory arbitration process as a violation of sovereignty whereas virtually all other members of the COPUOS felt that binding arbitration was essential to the Liability Convention.9

Liability after the New Delhi communique Between 1968 and 1971, the COPUOS Legal Subcommittee devoted its sessions entirely to the completion of the Liability Convention. When the subcommittee spent its first full session on the convention in 1968, there was an expectation – perhaps an unrealistic one – that the convention would be completed that year. Egypt and India certainly expected to be done by the end of the year after the COPUOS’s rapid adoption of the Rescue Agreement in 1967. The negotiations, however, only became more complicated in 1968 with Italy and India submitting additional drafts of a liability convention for consideration. India explained that its draft was not meant as a new proposal but an attempt to capture the consensus view on topics that the committee had discussed to date. But the fact that there were now five drafts of the same treaty from Belgium, Hungary, Italy, India, and the United States served rather to create the impression that the committee was more divided in 1968 than before. When the COPUOS session ended that year without a finalized document, India accused that the space powers of reneging on their promise to complete the Liability Convention immediately after the Rescue Agreement.10 India pressed for the completion of the Liability Convention even after the COPUOS’s session ended that year. In November  1968, India hosted informal discussions on the sidelines of the U.N. General Assembly session in a lastditch effort to finish the convention before the session closed, just as the Soviet Union and the United States had done in 1967 with the Rescue Agreement. When those talks failed, India hosted another round of discussions in New Delhi in March  1969 before the COPUOS reconvened. The representatives that met in New Delhi were from Belgium, Hungary, the Soviet Union, and the United States – the states that had submitted principal drafts to the committee. This conference ironically exposed India to criticisms that it was trying to finalize a treaty outside the COPUOS, which is exactly the accusation India made against the Soviet Union and the United States when they presented the Rescue Agreement. India insisted, however, that the discussions were not a secret and were open to all members of the committee. The reality though is that it appears the Indian diplomats were beginning to appreciate something that the Soviet and American diplomats had already known – focused negotiations with only the key parties can make negotiations considerably more productive. The informal discussions resulted in the New Delhi communique. The communique identified three outstanding issues that had to be resolved before the

The peaceful uses of outer space 157 Liability Convention could be finalized: (1) the scope and definition of damages, (2) the inclusion of international intergovernmental organizations within the scope of the treaty, and (3) the adoption of a compulsory dispute resolution process. The delegates at New Delhi developed proposals to resolve each issue, although the COPUOS rejected every single one of those proposals when it reconvened in 1969. The New Delhi communique, however, served to concentrate the committee’s attention on the few remaining points that prevented agreement.11 By the end of 1969, the COPUOS largely reached a consensus on the first issue concerning the scope of damages recoverable under the Liability Convention. The issues that had to be resolved with respect to damages were whether the treaty should include a cap on compensation, whether nuclear damages should be included in the convention, and what law should be used to measure a claimant’s damages. The committee resolved the first two issues rapidly. By 1969, the United States was the only delegation that still supported a cap on damages, but as the American representative said, the issue was only “marginal.” In light of the strong opposition to a cap from developing nations, the committee abandoned the idea. As to nuclear damages, the Soviet Union and Eastern bloc nations were the only ones that favored excluding that type of damage from the treaty. After the New Delhi discussions, the Soviet Union dropped all opposition to the inclusion of nuclear damages in the treaty, and the Eastern bloc nations followed suit. That left only the question of what law should apply to measure damages.12 The committee tentatively agreed that only international law should apply to calculate a claimant’s damages. Of the various options – international law, the claimant state’s law, the launching state’s law, or the law of the place where the damage occurred – international law was the only one that had not encountered serious resistance. The only criticism of international law had been the lack of precedents to calculate damages. The committee tried at first to supplement international law by stating that international law should be applied “taking into account” some national law. But the committee could not agree whether the claimant state’s law or the launching state’s law should be used. The result was an uneasy agreement to apply only international law because that was the only option on which the committee had consensus.13 The second issue that became a focus of discussion was the inclusion of international organizations as potential claimants and launching states under the Liability Convention. This issue reignited the debate about “international personality” from the Outer Space Treaty. Western European states had argued that international organizations like the European Launcher Development Organization and the European Space Research Organization have personality and must consent to treaty obligations. The Soviet Union argued that these organizations are only objects of international law, and duty can be imposed on them without consent. The matter was unresolved in the 1967 Outer Space Treaty, but in the interim, an article had been quietly included in the Rescue Agreement that adopted the Western European position. Article 6 of the Rescue Agreement states that an international organization can be subject to the terms of that treaty if the organization “declares its acceptance of the rights and obligations provided for

158  The peaceful uses of outer space in this Agreement and a majority of the States members of the organization are Contracting Parties to this Agreement” and to the Outer Space Treaty. In other words, international organizations were subject to the Rescue Agreement only if they issued a declaration accepting the treaty. States such as Australia, Canada, France, Italy, and the United Kingdom argued that the same approach should be adopted for the Liability Convention. The Soviet Union, however, feared that states would use international organizations to shield themselves from liability. For example, states could adopt the Liability Convention, but then conduct launches under an international organization that had not accepted the Liability Convention, thus allowing the member states to evade their treaty obligations. In September 1969, Belgium, France, Italy, Sweden, and the United Kingdom introduced a compromise with two critical points that addressed the Soviet Union’s concerns. First, states that were a party to the Liability Convention and an international organization would have to exercise best efforts to cause the international organization to issue a declaration accepting the Liability Convention. This made it clear that Western European states were not seeking to evade the obligations of the Liability Convention. Second, a claimant may present a claim to the international organization that launched a space object and to the member states of the organization simultaneously under the treaty’s joint and several liability provision. The Western European states had, at first, insisted that claims be presented only to international organizations, a position that seemed designed to shield member states from liability. By accepting that claims can be presented to the member states at the same time as the organization, this dispelled concerns that organizations could be used to shield states from liability. It was also an approach that was consistent with the victim-oriented philosophy of the treaty to find as many potential launching states for a claimant as possible. This compromise was acceptable to the Soviet Union, which allowed the committee to reach a consensus on the matter of international organizations.14 The final issue from the New Delhi communique was the adoption of a process for binding arbitration of disputed claims. The Soviet Union and Eastern bloc nations adamantly opposed any compulsory dispute resolution process. Czechoslovakia, Hungary, Romania, and the Soviet Union all argued that a binding judicial decision on a state violated sovereignty and that a moral obligation alone was sufficient to ensure that a state would pay for damage caused by its space object. A binding process should be adopted only on a case-by-case basis with the consent of the states involved. On the other side, Australia, Canada, France Italy, Iran, Japan, Sweden, the United Kingdom, and the United States argued that the Liability Convention was practically worthless without a binding dispute resolution process. There was no other way, they argued, for a claimant to ensure that it would be compensated by a powerful spacefaring nation. The COPUOS concluded its session in 1969 without reaching a consensus.15 For the remainder of the negotiations from 1970 to 1971, binding arbitration was the sole issue that prevented the finalization of the Liability Convention. Technically, the other issues identified by the New Delhi communique remained on the table because the Soviet Union insisted on a resolution of all issues under

The peaceful uses of outer space 159 a “package deal.” This was part of the Soviet Union’s effort to emphasize that it had made concessions on other points, such as acceptance of nuclear damages, and that others should make concessions on binding arbitration. What the committee needed at this point in the negotiations was a political compromise; the delegates could no longer use reason and carefully crafted technical language to reach an agreement. As a result, most of the discussions in 1970–71 took place off the record. For example, one COPUOS Legal Subcommittee session on June 11, 1970, lasted only five minutes. On other days, the subcommittee did not hold meetings at all. This ultimately led to a complaint by the committee’s Brazilian rapporteur that delegates were evading discussion on the record.16 Over time, some states began to accept that binding arbitration would never be adopted and sought other assurances that the Soviet Union would comply with a nonbinding arbitral decision. Brazil, which was the only non-Eastern bloc nation to agree with the Soviet Union, made compelling arguments that whether a judicial decision is “binding” under international law was an unimportant academic concept. There is no enforcement mechanism, penalty, or sanction for failure to comply with a judicial decision under international law. There are no police to enforce decisions in the international context. Even “binding” U.N. Security Council resolutions sometimes go unheeded. The focus for some states, therefore, shifted from demanding “binding” arbitration to ensuring that the arbitration process was impartial and public so that the moral force of any judicial decision would create political pressure that was impossible for a state to resist. Belgium and France led this effort for compromise by drafting a proposal that would require any arbitration decision to be in writing, to include the reasoning and basis for the decision, and to be disseminated as widely as possible through the U.N. Secretary-General.17 Despite efforts at compromise by some, the COPUOS was still unable to reach a consensus by the end of 1970. An increasingly small group of states including Argentina, Canada, and Sweden adopted hardline positions that refused to accept anything less than binding arbitration for disputed claims. They also insisted that the national law of the claimant state or the law of the place where the damage occurred be used to measure damages. The atmosphere began to turn pessimistic after three years of work by the Legal Subcommittee on nothing but the Liability Convention. The United States’ delegate, for example, said “people are rather tired of hearing what we have to say about the Liability Convention.”18 The French delegation similarly noted that discussions had become “somewhat irritating and humiliating.”19 When the COPUOS convened again in 1971, the consensus was that the Liability Convention must be completed that year or there would be no agreement at all. During the three years that the Legal Subcommittee focused on liability, it had ignored other legal issues that were becoming more important as the use of outer space expanded. These issues included the use of direct broadcast satellites, remote sensing, and the registration of space objects. In addition, a spate of falling space objects in 1970 served as a reminder of the need to finish the Liability Convention. The United States reported that around August 29, 1970,

160  The peaceful uses of outer space several objects ranging from 50 to 200 pounds fell near Pratt, Kansas; Beaver City, Oklahoma; and Adrian, Texas. All of the objects appeared to have been from the Soviet Union.20 Belgium, Brazil, and Hungary introduced a joint text to the Legal Subcommittee in 1971 that proposed to resolve the last two remaining issues that prevented the finalization of the Liability Convention. First, the joint text called for a threemember claims commission that could be invoked by either claimant or launching state. The commission’s decision would not be binding unless the parties agreed otherwise. In either case, the commission would issue reasons for its decisions in writing, and the decisions were to be made public. Second, the joint text proposed to resolve ongoing concerns about the sufficiency of international law to calculate damages by stating that compensation will be determined “in accordance with international law and the principles of justice and equity, in order to provide such reparation in respect of the damage as will restore the person . . . to the condition which would have existed had the damage not occurred.” This clause ensured that, whatever vagaries may exist under international law, the goal of the treaty was to restore claimant to its prior condition.21 The COPUOS reached a consensus on a complete draft of the Liability Convention based on the joint text, though that did not mean the document had every state’s full support. Canada, Japan, and Sweden remained grievously dissatisfied with the Liability Convention and only declined to object at the COPUOS so that discussion could continue before the U.N. General Assembly. Widespread dissatisfaction at the compromises that had been made to reach a consensus also led to numerous proposed amendments to the committee’s text. In response, the committee tried to accept as many amendments as possible to maintain consensus. This resulted in one rather peculiar article in the convention, proposed by Morocco, that if a falling space object presents “a serious large-scale danger to human life or seriously interferes with the living conditions of the population and vital centers,” states must “examine the possibility of rendering appropriate and rapid assistance” to the harmed state at that state’s request. This was the kind of article that was so vague and implied such a serious obligation that in normal times it would have been dissected in debate before being most likely rejected. But desperate to maintain consensus in the face of what was a small but vocal opposition, the article slipped through.22 Between November 4 and 11, 1971, the U.N. General Assembly’s First Committee considered the COPUOS’s draft Liability Convention. Belgium, as one of the states that drafted the joint text that resulted in consensus, stressed that the treaty was a product of compromise. Belgium warned that some appeared to have “murderous designs” because they remained dissatisfied with the text.23 Indeed, at the last minute, Canada introduced an amendment that threatened to derail the compromise. Canada suggested that the treaty include a provision allowing a state to issue a declaration stating that it would accept in advance that any decision by the Liability Convention’s claims commission as binding if the other states involved had made a similar declaration. Canada argued that existing international law allowed states to make such declarations to accept greater

The peaceful uses of outer space 161 legal obligations voluntarily, so there was no substantive change to the treaty. But Belgium, the Soviet Union, and the United States warned that the 11th-hour Canadian amendment would require delegates to consult with their governments again, potentially ending the chance of adoption that year and possibly ever. Alan Shepherd, recently back from the moon after commanding the Apollo 14 mission, spoke on the floor of the United Nations on behalf of the United States and urged Canada not to insist upon its amendment. A last-minute concession from Belgium allowed Canada to back down while saving face. Belgium added language to the First Committee’s resolution adopting the Liability Convention that said that “any State may, on becoming a party to the Convention, declare that it will recognize as binding, in relation to any other State accepting the same obligation, the decision of the Claims Commission.” The language would only appear in the resolution recommending the Liability Convention for adoption – not the Liability Convention itself. As a result, Canada agreed to withdraw its proposal shortly before the First Committee’s vote.24 On November  11, 1971, the First Committee formally adopted the Liability Convention. The U.N. General Assembly followed suit on November 29, 1971, in U.N. Resolution 2777 (XVI). The General Assembly adopted the resolution unanimously with only four states abstaining in protest: Canada, Iran, Japan, and Sweden.25

Registration convention A few months after the adoption of the Liability Convention, there were already complaints that the convention was ineffective without a supplemental registration convention. The complaints arose after five spherical titanium alloy pressure vessels fell near the town of Ashburton, New Zealand, between April 3 and May 12, 1972. New Zealand determined that the debris had most likely come from Cosmos-482, a Soviet probe launched on March  31, 1972, intended to explore Venus along with its sistership, Venera 8, which launched a few days earlier. When New Zealand attempted to return the debris under the Rescue Agreement, the Soviet Union denied responsibility. Speaking at the U.N. General Assembly’s First Committee, New Zealand complained that no nation was willing to accept responsibility for the debris. Serious damage had been averted only due to a slight difference in trajectory that caused the scorching hot debris to land in fields rather than in Ashburton itself. Had such damage occurred, New Zealand would have been unable to find a launching state willing to accept responsibility. New Zealand argued that this incident demonstrated the need for a binding Registration Convention to identify launching states, a position that developing nations vigorously supported.26 The COPUOS had acknowledged the potential need for a registration convention for over a decade at that point. A treaty governing registration had been one of the legal issues identified by the ad hoc COPUOS in 1959. In 1961, the U.N. General Assembly adopted Resolution 1721 (XVI), which established a voluntary registration system made public by the U.N. Secretary-General. As time passed,

162  The peaceful uses of outer space the voluntary registration system established by Resolution 1721 appeared to be increasingly inadequate. For one thing, there was no uniformity in the kind of that states provided in the registrations. For example, the United States gave orbital information, launch date, name of the launch vehicle, and other technical information including the purpose of the space object. The Soviet Union, on the other hand, only identified its space objects by popular names and provided orbital trajectory and the general purpose of the launch, but nothing more. Australia, France, and Italy, which had also registered spacecraft at the time, used other designation systems to identify their spacecraft. Moreover, the Outer Space Treaty had referred to certain rights and responsibilities of registration states, but the treaty did not define what it meant to be a registration state or make it mandatory to register space objects.27 The inadequacy of the voluntary registration system under Resolution 1721 (XVI) led to the proposal for a registration treaty. In 1968, France submitted the first draft of a treaty governing the registration of space objects. As the Legal Subcommittee had devoted itself exclusively to the completion of the Liability Convention at the time, the proposal was not discussed. Instead, the COPUOS referred the matter of registration to the Technical Subcommittee to examine the issue of marking. France had suggested that the Registration Convention require states to mark their space objects in some way, by symbols, materials, or otherwise, that could survive reentry so that states could identify the owner of space objects that had fallen from orbit. The Technical Subcommittee was to consider whether there were feasible and economically practical ways of marking every part of a space object for identification after reentry. Meanwhile, in early 1972, after the completion of the Liability Convention, Canada submitted its own draft Registration Convention for consideration.28 Canada and France revised their proposals to issue a joint draft Registration Convention after conferring in 1972. The main revision in the joint draft was a proposal to establish both national and international registrations. The French proposal in 1968 only required launching states to establish a national registry, but Italy and Japan expressed concern that the international community would not have access to a purely national registry. As a result, the revised joint draft with Canada now specified that states must give a copy of each registration in the national registry to the U.N. Secretary-General, who would then be responsible for maintaining a centralized international registry accessible by all nations. The draft Registration Convention also standardized the minimum information that must be in a registration.29 The Registration Convention initially had no support from either superpower, which seemed to doom the proposal. In 1968, when France first introduced a draft convention, the Soviet Union had opposed even identifying registration as an agenda item for the COPUOS Legal Subcommittee. Although the subcommittee was devoting itself to the Liability Convention at the time, the opposition to even listing the Registration Convention as an agenda item surprised many. Meanwhile, the United States’ attitude to the Registration Convention was lukewarm at best. For example, when the subcommittee finally discussed the Registration

The peaceful uses of outer space  163 Convention in 1972, the United States did not even have a delegate in the room. The United States was concerned about the feasibility and economic burden that could result from a duty to mark every part of a space object for identification after reentry.30 The United States, however, changed its mind during the U.N. General Assembly session in 1972. That October, U.S. Ambassador to the United Nations George H.W. Bush announced that the United States was “prepared to consider the desirability of transforming the existing voluntary United Nations registry maintained by the Secretary-General in accordance with a 1962 General Assembly resolution into an obligatory system by means of an appropriate international agreement.” Ambassador Bush explained that the United States had been absent from discussion that year due to a lack of personnel rather than lack of interest. The United States’ sudden support for the Registration Convention had likely been influenced by the approval of NASA’s plans to develop a space shuttle in early 1972. A reusable spaceship promised to make space travel look more like travel by air and sea. Because aircraft and ships are routinely registered, it made sense to do the same with reusable spacecraft. New Zealand’s complaint about falling space objects that year likely also encouraged the United States to participate in drafting a treaty lest the committee draft the convention in a manner unfavorable to it in the United States’ absence.31 The United States introduced its own draft Registration Convention to the Legal Subcommittee in 1973. The American draft was largely the same as the joint Canadian-French proposal. The main difference was that the United States would not require any marking of space objects. This was in response to the Technical Subcommittee’s report in 1970, which concluded that there was no economically practical way of marking space objects for identification after reentry. This was due in part to all the elements of a space object that would have to be marked, from the booster and various stages of the rocket to the satellite or spacecraft itself. Marking also had to be robust enough to survive reentry through the atmosphere, so insisting on marking could paradoxically result in more space objects landing on the earth and causing damage. Instead of tracking space objects through marking, the United States’ draft required every state with space tracking capabilities to assist with the identification of the origin of a space object upon request if the object caused damage. This provision directly addressed New Zealand’s concern about identifying responsible launching states under the Liability Convention.32 The issue of marking, however, prevented the COPUOS from reaching a consensus in 1973. Czechoslovakia and Poland indicated that the American proposal was acceptable, signaling the Soviet Union might accept the Registration Convention as well. But Argentina, France, India, and other delegates insisted that marking was a necessary part of the treaty and should be mandatory. In private discussions on the sidelines of the COPUOS, the delegates reached a compromise. The treaty would not require spacecraft to be marked in light of the economic burden, but states would be encouraged to mark their spacecraft. In addition, the treaty would include a review clause that required the committee to revisit the Registration Convention on a regular basis to determine whether marking

164  The peaceful uses of outer space had become economically feasible, in which case the committee could consider amendments. While this compromise had widespread support, at the last minute, the French delegate reported that based on new instructions from his government, the compromise was not acceptable.33 The COPUOS did not finalize and adopt the Registration Convention until 1974. That year, discussions about the Registration Convention continued along the same lines as the prior year. Again, the same compromise was reached to include a review clause to revisit the Registration Convention should marking ever become economically feasible. This time, France accepted the compromise, and the committee finalized the Registration Convention. On November 12, 1974, the U.N. General Assembly adopted the Registration Convention in U.N. Resolution 3235 (XXIX).34

Notes 1 U.N. Ad Hoc COPUOS, Draft Report of the Working Group, U.N. Doc. A/AC.98/C.2/ WP.5 (4 June  1969), 4–5; U.N. Ad Hoc COPUOS, Report of the Legal Committee, U.N. Doc. A/AC.98/2 (12 June 1959), 4; U.N. Ad Hoc COPUOS, Working Paper Submitted by the Delegation of Mexico, U.N. Doc. A/AC.98/L.8 (30 May 1959), 4; U.N. Ad Hoc COPUOS, Report Under Paragraph 1(d) of the General Assembly Resolution 1348(XIII) (Working Paper Submitted by the Delegation of the United States), U.N. Doc. A/AC.98/L.7 (27 May 1959), 3; U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4141 (14 July 1959), 23–24; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/ AC.105/C.2/SR.1–2 (28–29 May  1962), Statements by Czechoslovakia and United States; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Second Session (16 April–3 May 1963) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/12 (6 May 1963), 10; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5549 (24 September 1963), 12. 2 U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.15 (14 September 1962), 33–34, 36, 38; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.111–131 (9 June–4 July  1969), 197; “Spacecraft Debris Hits Freighter,” Pittsburgh Post-Gazette, Pittsburgh, PA, 5 July 1969, Vol. 42, No. 291. 3 U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (9–26 March 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/19 (26 March 1964), 4–5; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.29–37 (9–26 March  1964), 83 (Bulgaria); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.38 (5 October  1964), 5; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.27–30 (28 October–2 November  1964), Statements by Austria, France, Hungary, and Poland; U.N. COPUOS Legal Sub-Committee, United States of America: Revised Proposal, Convention Concerning Liability for Damage Caused by the Launching of Objects into Outer Space, U.N. Doc. A/AC.105/C.2/L.8/Rev.3 (24 September 1965). 4 U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Second Session (16 April–3 May 1963) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/12 (6 May 1963), Annex I at 11; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5549 (24 September  1963), 13 (Belgium); U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (9–26 March 1964) to

The peaceful uses of outer space 165 the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/19 (26 March 1964), Annex II at 3, 8, 14, 23; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (5–23 October  1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/21/ Add.2 (23 October 1964), Annex II at 3, 8, 30, Annex IV at 24–25, 57, 62–63; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fourth Session (20 September–1 October 1965) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/29 (1 October  1965), 3, Annex II at 8; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Seventh Session (4–28 June 1968) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/45 (11 July 1968), 4–5, 7, Annex I at 16, 41; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (9 June–4 July 1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July  1969), Annex II at 19–20; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (8 June–3 July 1970) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/85 (3 July 1970), Annex I at 14, Annex II at 35; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.1–2, 10–11, 13 (28–29 May, 13–14, 18 June  1962), Statements by Egypt, Italy, Japan, Sweden, United Kingdom, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.16 (16 April  1963), 4 (United States); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.29–37 (9–26 March  1964), 28, 53, 57, 86, 89–90; U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.50 (28 September 1965), 3 (Mexico), 3 (Italy), 3–5 (Soviet Union), 5 (United States), 5 (Belgium), 7 (Austria), 7 (Hungary); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.77–79 (23–27 June  1967), Statements by Canada, India, Italy, Japan, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.90–101 (4–18 June  1968), 4 (Czechoslovakia), 8–9 (Hungary), 10 (France), 17 (Romania) 18 (Italy), 37 (Sweden), 39 (Italy), 44 (United States), 45 (Italy), 50 (Japan), 55–56 (India, Italy, Canada, Hungary), 103–104, 123 (Chairman); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/ AC.105/C.2/SR.102–110 (19–28 June 1968), 56–60 (France); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.132–151 (8 June–3 July 1970), 23–24 (Sweden), 24–28 (Italy), 25 (Argentina), 27 (France), 28–29 (Belgium), 29 (Mexico); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.30 (2 November  1964), 13–14 (India); U.N. COPUOS Legal Sub-Committee, United States of America: Revised Proposal, Convention Concerning Liability for Damage Caused by the Launching of Objects into Outer Space, U.N. Doc. A/AC.105/C.2/L.8/ Rev.3 (24 September 1965). 5 U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (9–26 March 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/19 (26 March 1964), Annex II at 13, 17; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (5–23 October 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/21/Add.2 (23 October 1964), Annex IV at 22–25, 29; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Seventh Session (4–28 June 1968) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/45 (11 July 1968), 7, Annex I at 41, 44; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (9 June–4 July 1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July 1969), Annex II at 19, 36–37; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.29–37 (9–26 March  1964), 58 (Sweden), 64, 73 (Japan); U.N. COPUOS Legal Sub-Committee,

166  The peaceful uses of outer space Summary Records, U.N. Docs. A/AC.105/C.2/SR.49, 53 (28, 30 September  1965), Statements by Austria, Belgium, France, Romania, Soviet Union, and United Kingdom; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.77 (23 June 1967), 7 (United States); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.90–101 (4–18 June 1968), 38, 40 (Italy), 41 (Czechoslovakia, France), 61 (Italy), 80 (Japan, United Kingdom), 117 (Mexico), 118 (Czechoslovakia, Hungary, Poland), 155 (Australia). 6 United Nations, General Assembly Resolution 2222 (XXI), Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, A/RES/2222(XXI) (19 December 1966); U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (9–26 March  1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/19 (26 March 1964); U.N. COPUOS Legal SubCommittee, Report of the Legal Sub-Committee on the Work of Its Third Session (5–23 October  1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/21/Add.2 (23 October  1964), 39–42, 44–45, 54–55, 57–59 Annex IV at 8–10; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fourth Session (20 September–1 October 1965) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/29 (1 October 1965), 5; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Sixth Session (19 June–14 July 1967) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/37 (14 July  1967), Annex II at 24; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Seventh Session (4–28 June  1968) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/45 (11 July 1968), Annex I at 41; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (9 June–4 July  1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July 1969), 7–9, Annex II at 18, 38; U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.29–37 (9–26 March 1964), 27–28 (United States), 53 (United Kingdom), 57 (Sweden), 75 (Italy), 85–87 (Soviet Union), 90 (Romania); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.48, 51–53 (27, 29–30 September 1965), Statements by Argentina, Australia, Austria, Hungary, Italy, United Kingdom, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.77–78 (23–26 June  1967), Statements by Argentina, Belgium, Canada, France, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.90–101 (4–18 June 1968), 12–13 (France), 70 (France), 72 (Italy), 73 (United Kingdom), 75–76 (Chairman), 83–84 (United States); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.102–110 (19–28 June  1968), 37 (Australia); U.N. First Committee, 17th Sess., Summary Records, U.N. Docs. A/C.1/SR.1298 (11 December 1962), 6 (United Kingdom), 11 (Australia); U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1345 (5 December 1963), 183–184 (Australia); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.24 (22 November 1963), 17–18 (Australia); Stephen E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space Co-Operation (International Astronautical Federation, 2012), 64, available at www.iafastro.org/wp-content/uploads/2014/04/IGY-ACHA-Study.pdf; Harrie Massey and M.O. Robbins, History of British Space Science (Cambridge: Cambridge University Press, 1986), 105. 7 U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (9–26 March 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/19 (26 March 1964), Annex II at 2; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session

The peaceful uses of outer space 167 (5–23 October  1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/21/Add.2 (23 October 1964), Annex IV at 7–8; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (9 June–4 July  1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July 1969), 7–8, Annex II at 18, 39–40; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (8 June–3 July  1970) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/85 (3 July 1970), Annex I at 13, 15–16; U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.90–101 (4–18 June 1968), 37 (Sweden), 71 (Italy), 72 (United States); U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.102–110 (19–28 June  1968), 55–61 (Australia, Belgium, Canada, Czechoslovakia, France, India, Poland, Soviet Union, United Kingdom, United States); U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.132–151 (8 June–3 July 1970), 82 (Italy), 87 (Argentina). 8 U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (9–26 March 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/19 (26 March 1964), Annex II at 8, 11, 16, 23; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (5–23 October 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/21/Add.2 (23 October 1964), Annex II at 2, 7, 10, 16, 19, 28 Annex IV at 12–15, 18–19, 65; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fourth Session (20 September–1 October 1965) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/29 (1 October 1965), 6, Annex II at 9; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Sixth Session (19 June–14 July 1967) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/37 (14 July 1967), Annex II at 6, 13, 20; U.N. COPUOS Legal Sub-Committee, Report of the Legal SubCommittee on the Work of Its Seventh Session (4–28 June 1968) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/45 (11 July 1968), Annex I at 44; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (9 June–4 July 1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July 1969), 8, Annex II at 31, 38; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.2, 14 (29 May, 19 June 1962), Statements by Austria and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.29–37 (9–26 March  1964), 35–36 (Canada), 36 (Belgium), 58 (Sweden), 64 (Japan), 69 (Italy); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.48–49, 54–55 (27–28, 30 September, 1 October 1965), Statements by Austria, Belgium, France, Hungary, Mexico, Soviet Union, United Kingdom, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.77–79, 84 (23–27 June, 14 July 1967), Statements by Argentina, Brazil, Bulgaria, Canada, Czechoslovakia, Hungary, India, Italy, Sierra Leone, United Kingdom, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.90–101 (4–18 June  1968), 8 (Hungary), 13 (France), 30 (Soviet Union), 37 (Sweden), 43 (Austria, Brazil), 46–47 (Belgium, India, United Kingdom), 128 (Hungary); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.102–110 (19–28 June 1968), 51–52 (United States), 54–55 (Canada, United States); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.111–131 (9 June–4 July 1969), 29 (Argentina); U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5549 (24 September 1963), 12; U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1344 (4 December 1963), 178–179 (IAEA).

168  The peaceful uses of outer space 9 U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (9–26 March 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/19 (26 March 1964), Annex II at 27; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (5–23 October 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/21/Add.2 (23 October 1964), Annex II at 4, 15, 20, Annex IV at 15, 72–74; U.N. COPUOS Legal Sub-Committee, Report of the Legal SubCommittee on the Work of Its Sixth Session (19 June–14 July 1967) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/37 (14 July 1967), Annex II at 6; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Seventh Session (4–28 June 1968) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/45 (11 July 1968), 8–9; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (9 June–4 July 1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July 1969), 7, 9–10, Annex II at 22, 34, 37; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5549 (24 September 1963), 13; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.2 (29 May  1962), 7 (United States); U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.78 (26 June  1967), 9 (Czechoslovakia), 11 (France), 12 (Romania); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.29–37 (9–26 March  1964), 54 (United Kingdom), 69 (Italy), 73 (Argentina), 89 (Czechoslovakia), 90 (Romania); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.90–101 (4–18 June 1968), 154–155 (Chairman, India, Italy, Japan, Poland, United Kingdom, United States), 158 (Australia, Czechoslovakia, India, Soviet Union, United Kingdom), 159 (Poland), 160–165 (Argentina, Australia, Austria, Brazil, Canada, France, Hungary, Italy, United States); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.102–110 (19–28 June  1968), 23–25 (Austria). 10 U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Third Session (5–23 October 1964) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/21/Add.2 (23 October 1964), Annex IV at 16; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Special Session (14–15 December 1967) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/43 (15 December 1967), 2; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Seventh Session (4–28 June 1968) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/45 (11 July 1968), 1–3, Annex I at 1, 5, 9, 11, 16, 37–3; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.77, 79 (23, 27 June 1967), Statements by Austria and India; U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.86 (14 December 1967), 6–7 (United States); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.102–110 (19–28 June 1968), 70–76 (India), 89–96 (United States); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.53–60 (15–22 October 1968), 15–20 (India), 30–34 (United States), 123–125 (United States); U.N. First Committee, 22nd Sess., Official Records, U.N. Docs. A/C.1/PV.1499 (19 October 1967), 6 (Czechoslovakia); Delbert R. Terrill, Jr., The Air Force Role in Developing International Outer Space Law (Alabama: Progressive Management, 1999), 70; U.N. COPUOS Legal Sub-Committee, India: Proposal, Convention Concerning Liability for Damage Caused by the Launching of Objects Launched into Outer Space, U.N. Doc. A/AC.105/C.2/L.32/Rev.2 (3 July 1969). 11 U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Seventh Session (4–28 June 1968) to the Committee on the Peaceful Uses

The peaceful uses of outer space 169 of Outer Space, U.N. Doc. A/AC.105/45 (11 July 1968), Annex I at 45–46; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (9 June–4 July 1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July 1969), 1; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.53–60 (15–22 October 1968), 15–20 (India), 68 (Sweden), 119 (Austria), 145 (Sierra Leone); U.N. COPUOS, Verbatim Records, U.N. Docs. A/ AC.105/PV.61–67 (8–15 September  1969), 49 (India); U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.111–131 (9 June–4 July 1969), 28 (India), 66–71 (Italy), 82–83 (Canada, Soviet Union), 129 (India), 171 (Belgium); U.N. First Committee, 23rd Sess., Official Records, U.N. Docs. A/C.1/ PV.1644–1646 (17–18 December  1968), Statements by Australia, Austria, Bulgaria, Canada, India, Italy, Sierra Leone, United Kingdom, United States; U.N. COPUOS, Addendum to the Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/7621 (5 December 1969), 2. 12 U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (9 June–4 July 1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July 1969), 6, Annex II at 36; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.53–60 (15–22 October 1968), 125–126 (United States); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.111–131 (9 June–4 July  1969), 58–59 (Australia), 62 (France), 64 (Argentina), 70–71 (Canada), 73–74 (United States), 75 (Japan), 78 (Italy), 79 (Czechoslovakia), 80 (Brazil), 103 (Czechoslovakia), 104–105 (United States) 114 (Bulgaria), 124–125 (France), 128 (United States), 131–132 (United Kingdom), 133 (Canada), 134 (Egypt) 145 (Iran), 154 (United States), 159–159 (Soviet Union). 13 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.111–131 (9 June–4 July 1969), 64 (Romania), 69 (Iran), 71 (Canada), 72 (Belgium), 77 (Hungary, United Kingdom), 79 (Czechoslovakia), 81 (Brazil), 101–102 (Australia) 102 (France), 103 (Hungary) 104 (United States), 105–106 (Austria), 107–108 (India), 108–109 (Canada, United Kingdom, Sweden), 110 (Brazil, Chairman), 111–112 (Belgium), 113 (Bulgaria), 115 (United Kingdom), 124 (France), 127 (Poland), 129 (United States), 142–143 (Chairman, Belgium, Soviet Union), 146–149 (Chairman, Austria, Belgium, France, Italy, Soviet Union), 153–154 (Chairman, Australia, Canada, Soviet Union, United States); U.N. COPUOS Legal Sub-Committee, Report of the Legal SubCommittee on the Work of Its Ninth Session (9 June–4 July 1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July 1969), 6, Annex II at 30, 34–35. 14 U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Seventh Session (4–28 June 1968) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/45 (11 July 1968), 6, Annex I at 42–43; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (9 June–4 July 1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July 1969), Annex II at 21, 30–31; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.77–79, 84 (23 June, 14 July  1967), Statements by Austria, Belgium, Bulgaria, Czechoslovakia, France, Poland, United Kingdom, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.90–101 (4–18 June  1968), 12 (France), 19 (Italy), 37 (Sweden), 75 (France); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.102–110 (19–28 June  1968), 11 (France, United Kingdom), 37 (Poland), 38 (Soviet Union), 41–44 (Soviet Union); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.111–131 (9 June–4 July 1969), 59 (Australia), 62 (France), 63–64 (Argentina), 66 (Italy), 69 (Iran), 70 (Canada), 91–94 (United Kingdom, France, Belgium, Italy, Australia, Canada), 95 (Soviet Union, Czechoslovakia), 97 (Poland), 97–98 (Argentina),

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101 (Romania), 114 (Bulgaria), 115–116 (United Kingdom), 117 (Argentina), 119–120 (Soviet Union), 123 (Italy), 129 (United States), 132 (Canada), 147–151 (Romania); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.53–60 (15–22 October 1968), 126–127 (United States); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.61–67 (8–15 September  1969), 41 (United States), 52 (Belgium), 70 (Australia); U.N. COPUOS Legal Sub-Committee, Draft Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space, U.N. Doc. A/AC.105/C.2/L.28 (12 December 1967). U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.53–60 (15–22 October 1968), 128–129 (United States); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.61–67 (8–15 September  1969), 40 (United States), 52 (Belgium), 64 (Japan), 69 (Australia), 102 (Italy), 112 (Sweden), 116–117 (United Kingdom), 135 (India), 140 (Canada), 169 (Iran), 172–173 (Austria), 192 (Soviet Union); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.69 (17 September 1970), 258–269; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.111–131 (9 June–4 July 1969), 9–10 (Soviet Union), 59 (Australia), 62 (France), 64 (Argentina), 66 (Italy), 71 (Canada), 75 (Japan), 76 (Sweden), 77 (Hungary, United Kingdom), 104 (Hungary), 120 (Czechoslovakia, Soviet Union) 125–126 (France), 127–128 (Australia, Romania), 138 (Argentina), 145 (Iran), 161–163 (Soviet Union), 163 (India), 164–165 (Austria) 168–169 (Soviet Union); U.N. First Committee, 24th Sess., Official Records, U.N. Docs. A/C.1/PV.1718–1722 (10–12 December  1969), Statements by Belgium, Czechoslovakia, Egypt, Hungary, Iran, Japan, Philippines, Soviet Union, Sweden, United Kingdom, and United States; U.N. COPUOS, Addendum to the Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/7621 (5 December 1969), 1–2. U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.111–131 (9 June–4 July 1969), 82–83 (Soviet Union), 85–89 (Chairman, Soviet Union), 126 (Australia), 130 (India), 131 (Canada, Italy, Egypt, Soviet Union), 137 (Poland), 139 (Chairman, Australia), 147–151 (Soviet Union), 158–159 (Soviet Union, Belgium, United Kingdom, Australia), 167 (Brazil, Soviet Union), 171–172 (Canada); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/ AC.105/C.2/SR.132–151 (8 June–3 July  1970), 10, 13, 31–43, 47–48, 60, 72; U.N. First Committee, 24th Sess., Official Records, U.N. Docs. A/C.1/PV.1718–1722 (10– 12 December 1969), Statements by Belgium, Canada, Iran, Japan, Philippines, Sweden, and United States; U.N. COPUOS, Addendum to the Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/7621 (5 December 1969), 6; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (8 June–3 July 1970) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/85 (3 July 1970), Annex I at 2. U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.111–131 (9 June–4 July 1969), 80 (Brazil), 138–139 (Brazil); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.132–151 (8 June–3 July 1970), 54 (Brazil), 55 (Belgium), 57 (France), 67 (Bulgaria); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.61–67 (8–15 September 1969), 188 (Brazil); U.N. First Committee, 24th Sess., Official Records, U.N. Docs. A/C.1/PV.1720 (11 December 1969), 11 (Brazil), 15 (Lebanon). U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.102 (7 September 1971), 156 (United States). U.N. First Committee, 26th Sess., Official Records, U.N. Docs. A/C.1/PV.1823 (9 November  1971), 18–25 (France); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.132–151 (8 June–3 July 1970), 5–7 (France), 9–10 (Argentina), 48–49 (Canada), 50–51 (Sweden), 56 (France), 58 (Italy), 60 (Iran), 62 (Japan), 63–64 (Poland), 69 (United Kingdom), 73 (Austria), 79–81 (United

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States); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/ AC.105/C.2/SR.152–169 (7 June–2 July  1971), 9, 28–30, 49, 58; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.69 (17 September 1970), 280–286; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (8 June–3 July 1970) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/85 (3 July 1970), 4–5; U.N. COPUOS Legal SubCommittee, Report of the Legal Sub-Committee on the Work of Its Tenth Session (7 June–2 July 1971) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/94 (8 July  1971), 3; United Nations, General Assembly Resolution 2733 (XXV), International Co-Operation in the Peaceful Uses of Outer Space, A/RES/2733 (XXV) (7 December 1970). U.N. COPUOS. Letter Dated 8 September 1970 from the Permanent Representative of the United States Addressed to the Secretary-General, U.N. Doc. A/AC.105/87 (10 September  1970); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.111–131 (9 June–4 July 1969), 39 179; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.69 (17 September 1970), 281–286. U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (8 June–3 July 1970) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/85 (3 July 1970), Annex I at 3–4; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Tenth Session (7 June–2 July 1971) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/94 (8 July  1971), 4, 16–18; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.132–151 (8 June–3 July 1970), 49 (Canada), 50 (Sweden), 54 (Brazil), 62 (Japan), 65–66 (Australia), 69 (United Kingdom), 70 (Italy, Sweden), 74 (Iran), 77 (India), 78 (Argentina), 81 (Czechoslovakia, Poland), 84 (Australia, Belgium); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.152–169 (7 June–2 July 1971), 77 (Hungary). U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.152–169 (7 June–2 July 1971), 57–58 (Morocco), 78 (Japan), 79–81 (Lebanon), 82–83 (Mexico), 83 (Iran), 90–91 (Canada), 92 (United Kingdom), 93–95 (Argentina), 96–97 (Mongolia, Romania, Morocco), 98 (Sweden), 98–99 (France), 100 (Italy), 101–102 (Austria), 102–103 (Bulgaria), 109 (Morocco), 111 (Canada), 112 (Japan), 113–114 (Sweden), 114–116 (Australia), 116–118 (India), 121 (Italy), 122 (Egypt), 124 (Argentina), 125–127, 138–139 (Mexico), 139 (United Kingdom), 140–142 (United States); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.100 (3 September  1971), 68–71 (Australia); U.N. First Committee, 26th Sess., Official Records, U.N. Docs. A/C.1/PV.1822 (9 November 1971), 7 (United Kingdom); U.N. COPUOS Legal Sub-committee, Report of the Legal Sub-Committee on the Work of Its Tenth Session (7 June–2 July 1971), U.N. Doc. A/AC.105/94 (8 July 1971), 9–11, 13, 18–19; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/8420 (10 September 1971), 16. U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.101 (3 September 1971), 128–131 (Belgium). U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.98–103 (1–7 September  1971), Statements by Argentina, Austria, Belgium, Brazil, Bulgaria, Canada, India, Iran, Italy, Japan, Mexico, Mongolia, Poland, Romania, Soviet Union, Sweden, United Kingdom, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.111–131 (9 June–4 July 1969), 72 (Belgium), 81 (Brazil); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.152–169 (7 June–2 July  1971), 97 (United States), 98 (Canada); U.N. First Committee, 24th Sess., Official Records, U.N. Docs. A/C.1/PV.1720 (11 December 1969), 11 (Brazil); U.N. First Committee, 26th Sess., Official Records, U.N. Docs. A/C.1/PV.1819–1822, 1825 (4–10 November 1971), Statements by Chairman

172  The peaceful uses of outer space Waldheim, Alan Shepherd (United States), Belgium, Bulgaria, Canada, Indonesia, Italy, Liberia, New Zealand, Soviet Union, and Sweden; U.N. COPUOS Legal SubCommittee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (8 June–3 July 1970) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/85 (3 July 1970), Annex I at 3; United Nations, General Assembly Resolution 2777 (XXVI), Convention on International Liability for Damage Caused by Space Objects, A/RES/2777 (XXVI) (29 November 1971). 25 U.N. First Committee, 26th Sess., Official Records, U.N. Docs. A/C.1/PV.1826 (11 November 1971); U.N. GAOR, 26th Sess., Provisional Verbatim Record, U.N. Doc. A/PV.1998 (29 November 1971). 26 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.187–191 (2–5 May  1972), 4–5 (Japan), 9 (Mexico), 19 (Egypt), 20 (India), 22 (India); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.113 (7 September 1972), 18–20 (India), 38–41 (Mexico); U.N. First Committee, 27th Sess., Official Records, U.N. Docs. A/C.1/PV.1866–1867 (18 October 1972), Statements by Egypt, India, and New Zealand; Paul P. Heller, “Man-Made U.F.O.s – The Problem of Identifying the Launching State of a Space Object,” International Lawyer, Vol. 7, No. 4 (1973): 900–905. 27 U.N. Ad Hoc COPUOS, Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/4141 (14 July 1959), 24; United Nations. General Assembly Resolution 1721 (XVI), International Co-Operation in the Peaceful Uses of Outer Space, A/RES/1721(XVI) (20 December  1961); U.N. First Committee, 16th Sess., Verbatim Records, U.N. Docs. A/C.1/PV.1210–1212, 1214 (4–6, 11 December 1961), Statements by Hungary, Italy, Japan, Ukraine, and United States; U.N. First Committee, 18th Sess., Summary Records, U.N. Docs. A/AC.1/SR.1344 (4 December 1963), 173 (Belgium); U.N. COPUOS. Report of the Committee on the Peaceful Uses of Outer Space. U.N. Doc. A/5181 (27 September 1962), 5; U.N. COPUOS Legal SubCommittee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (9 June–4 July 1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July 1969), Annex IV; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.24 (22 November  1963), 27–30 (United Kingdom); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.38 (6 October 1965), 41–42 (Italy), 60 (Japan); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.47 (17 April 1967), 14–15 (United States), 23–30 (France); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.29–37 (9–26 March 1964), 34 (Australia), 40 (India), 64–65 (Lebanon); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.111–131 (9 June–4 July 1969), 49 (Argentina); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.152–169 (7 June–2 July  1971), 59–60 (Canada), 62 (Sweden); U.N. COPUOS Legal Sub-Committee, Registration with the United Nations of Objects Launched into Outer Space, U.N. Doc. A/AC.105/C.2/6 (27 June 1969). 28 U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Seventh Session (4–28 June 1968) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/45 (11 July 1968), 10–12; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (9 June–4 July  1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July 1969), 4, Annex I at 5; U.N. COPUOS Legal SubCommittee, Report of the Legal Sub-Committee on the Work of Its Tenth Session (7 June–2 July  1971), U.N. Doc. A/AC.105/94 (8 July  1971), 14–15; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Eleventh Session (10 April–5 May  1972), U.N. Doc. A/AC.105/101 (11 May  1972), 17–18, Annex II at 4, 7; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.102–110 (19–28 June 1968), 3 (France), 10 (France);

The peaceful uses of outer space  173

29

30

31

32

U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.111–131 (9 June–4 July  1969), 7–8 (France), 26–27 (United Kingdom), 30–31 (Japan), 41 (Egypt), 47–48 (France), 52 (Belgium), 53 (United States), 173 (Canada); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.152–169 (7 June–2 July  1971), 21 (Argentina), 40–41 (Chairman), 46 (France); U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/8020 (12 December  1970), 8–9; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/8420 (10 September  1971), 16; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.61–67 (8–15 September  1969), 211; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.100 (3 September  1971), 79 (France); U.N. COPUOS Legal Sub-Committee, Canada: Proposal, U.N. Doc. A/AC.105/C.2/L.55 (13 June 1969); U.N. COPUOS Legal SubCommittee, French: Proposal, Draft Convention Concerning the Registration of Objects Launched into Space for the Exploration or Use of Outer Space, U.N. Doc. A/AC.105/C.2/L.45 (18 June 1968); U.N. COPUOS Legal Sub-Committee, French: Proposal, U.N. Doc. A/AC.105/C.2/L.50 (21 June 1968). U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.111–131 (9 June–4 July  1969), 21–22 (Canada); U.N. COPUOS Legal SubCommittee, Text Considered by the Working Group on Registration, PUOS/C.2/ WG.2(XI)/5 (26 April  1972); U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Eleventh Session (10 April–5 May  1972), U.N. Doc. A/AC.105/101 (11 May 1972), 17–18, Annex II at 7; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.187–191 (2–5 May 1972), 12 (Canada). U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.53–60 (15–22 October 1968), 84 (United Kingdom), 137 (France), 143 (Canada); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.111 (6 September  1972), 22–25 (Soviet Union); U.N. First Committee, 23rd Sess., Official Records, U.N. Docs. A/C.1/PV.1646 (18 December 1968), 27 (France); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.102–110 (19–28 June  1968), 66–69 (Chairman, Austria, Japan, France, Soviet Union); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.111–131 (9 June–4 July  1969), 9 (Soviet Union), 12–14 (United States), 15 (Czechoslovakia), 16–17 (Italy), 37 (Hungary); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/ AC.105/C.2/SR.187–191 (2–5 May  1972), 9 (Soviet Union), 14–15 (Hungary), 16 (Poland), 30 (Bulgaria), 33–34 (United States). U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.111, 113 (6–7 September 1972), Statements by Sweden and United States; U.N. First Committee, 27th Sess., Official Records, U.N. Docs. A/C.1/PV.1861 (12 October 1972), 20–23 (United States). U.N. COPUOS Legal Sub-Committee, United States of America: Proposal, Convention on the Registration of Objects Launched into Outer Space, U.N. Doc. A/AC.105/ C.2/L.85 (19 March  1973); U.N. COPUOS Legal Sub-Committee, Canada and France: Proposal for a Convention on Registration of Objects Launched into Outer Space, U.N. Doc. A/AC.105/C.2/L.86 (27 March  1973); U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/8020 (12 December 1970), 8–9; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/8720 (15 September  1972), 28; U.N. COPUOS Scientific and Technical Sub-Committee, Information on the Technical Aspects of the Registration of Objects Launched into Outer Space, U.N. Doc. A/AC.105/L.52 (14 April 1970); U.N. COPUOS, Report of the Scientific and Technical Sub-Committee on the Work of Its Seventh Session, U.N. Doc. A/AC.105/82 (1 May 1970), 11–12; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Twelfth Session

174  The peaceful uses of outer space (26 March–20 April 1973), U.N. Doc. A/AC.105/115 (27 April 1973), 7–13. Annex II at 12–13; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/ AC.105/C.2/SR.152–169 (7 June–2 July 1971), 66 (United Kingdom); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.187–191 (2–5 May 1972), 24–25 (United Kingdom). 33 U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.111–113 (6–7 September 1972), Statements by Canada, France, Japan, and Sweden; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Twelfth Session (26 March–20 April 1973), U.N. Doc. A/AC.105/115 (27 April 1973), 13; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.193, 197–198, 201, 203–206 (30 March, 2–4, 11, 16–19 April 1973), Statements by Argentina, Australia, Austria, Brazil, Canada, Egypt, France, India, Japan, United Kingdom, and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.120, 123–126, 128 (25, 28–29 June–2, 5 July 1973), Statements by Chairman, Argentina, Austria, Brazil, Belgium, Canada, Egypt, France, India, Mexico, Poland, Sierra Leone, and United States; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/9020 (26 June 1973), 3, 23–24; U.N. First Committee, 28th Sess., Provisional Verbatim Records, U.N. Docs. A/C.1/PV.1978, 1980, 1982 (5–7 December 1973), Statements by Bulgaria, France, Soviet Union, and United States. 34 U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Thirteenth Session (6–31 May 1974), U.N. Doc. A/AC.105/133 (6 June 1974), 8, Annex II at 1–3; U.N. COPUOS Legal Sub-committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.208–225 (6–31 May 1974), 8 (Soviet Union), 10 (India), 10 (Canada), 13 (Chairman), 14 (Australia), 17 (France), 41–42 (Argentina, Iran, United States), 105 (Austria), 137–138 (United States); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.131–132, 134 (1–3 July  1974), Statements by Chairman, France, Soviet Union, Sweden, and United States; U.N. First Committee, 29th Sess., Provisional Verbatim Records, U.N. Docs. A/C.1/PV.1988 (11 October  1974), 7 (Chairman); United Nations, General Assembly Resolution 3235 (XXIX), Convention on Registration of Objects Launched into Outer Space, A/RES/3235 (XXIX) (12 November 1974).

9 The commercial uses of outer space

In the 1970s, the commercial use of outer space became a prime topic. Governments were beginning to recognize the potential large-scale economic impacts from the use of satellites. This recognition coincided with a time when developing nations grew aggressive about addressing global economic inequality. At the United Nations, the wants of developing nations displaced concerns about the Cold War and the prevention of conflict as the prime topics for outer space law. Developing nations demanded that the world – especially industrialized nations – recognize that natural resources beyond the sovereign territory of any nation are the “common heritage” of mankind. That concept is reflected today in the 1979 Moon Agreement.

New world order The Outer Space Treaty declares in the first article a right to “use outer space” for the “benefit and in the interests of all countries.” After the adoption of the treaty, questions arose as to what limits existed on the “use” of outer space. France was an early proponent of the idea that rules had to be developed to govern the commercial, public, and scientific uses of outer space. For example, France argued that space law needed to address environmental contamination and the problem of derelict satellites, which could create traffic hazards in orbit. The uses of outer space that had a direct impact on the earth, such as communication satellites and remote sensing satellites, became a focus of the United Nations’ attention during the 1970s.1 The first “use” of outer space to be given serious consideration was telecommunications. Communication satellites were one of the first widespread practical uses of outer space after the Space Age began in 1957. The United States was the leading pioneer in this field. By 1962, the United States had launched the world’s first relay satellites that carried telephone and television transmissions between North America, South America, and Europe. By 1963, the United States placed the first communication satellite in geosynchronous orbit. The United Nations had virtually no role in the regulation of these early communication satellites. Rather, the Committee on the Peaceful Uses of Outer Space deferred to the International Telecommunication Union, or ITU. The principal task of the ITU in this regard

176  The commercial uses of outer space was to issue regulations allocating radio frequencies for satellites to prevent interference. In October 1963, the ITU convened an Extraordinary Radio Conference to allocate frequency bands for space communications. The regulation of communication satellites became more complicated in 1964. That year, the United States led the creation of the International Telecommunications Satellite Consortium, or INTELSAT, along with over a dozen other mostly Western European nations and other American allies. The goal for INTELSAT was to create a global commercial satellite communication system, and despite the initial composition of INTELSAT’s membership, the agreement was open to all nations. The Soviet Union and Eastern bloc nations derided INTELSAT as an American corporate monopoly that perverted the peaceful and scientific uses of outer space into a commercial one. The Soviet Union raised concerns about responsibility and liability for conduct in outer space, since INTELSAT had been structured like a private corporation with shares owned by various nations or private entities. Notwithstanding these concerns, INTELSAT grew to 63 member states by 1968 and carried up to 95% of the world’s international telecommunications traffic. The one noticeable gap in INTELSAT’s coverage was over Eastern Europe and the Soviet Union. The Soviet Union could not deny that INTELSAT had been a success and needed to respond in kind. Thus, in 1968, the Soviet Union announced the launch of Intersputnik, a competing global satellite communication system supported by communist nations such as Bulgaria, Cuba, Czechoslovakia, East Germany, Hungary, Mongolia, Poland, and Romania. Intersputnik did not become operational, however, until July 12, 1972. The creation of Intersputnik in response to INTELSAT was – like the Comecon in response to the Marshall Plan, the Warsaw Pact in response to NATO, and the establishment of East Germany in response to West Germany – yet another major Cold War division. The creation of competing global satellite communication systems, one led by the Soviet Union and the other the United States, generated concerns about interference and cooperation in outer space. France and Sweden called upon the COPUOS to consider new regulations to harmonize the systems and possibly even create a single global telecommunication system. There was also a desire to promote greater participation in the satellite systems from developing nations in the Third World.2 While concerns arose about the prospect of two competing communication satellite networks, the prospect of a new technology, direct broadcast satellites, added another complication. Before 1974, communication satellites acted as relays. This meant they carried signals across continents to receiving stations that further distributed the signal within a country or region. Direct broadcast would send the signal to individual consumers via a satellite dish rather than through a receiving station. By 1968, the COPUOS recognized that direct broadcast would become an economically feasible technology within the next few years. The prospect of direct broadcast satellites created new legal issues that had to be addressed. For the Soviet Union and the Eastern bloc nations, direct broadcast presented a threat to the internal security of a state. Since the end of the Second World

The commercial uses of outer space 177 War, the Soviet Union had attempted to control the flow of information into its borders. For example, when the United States began supporting Voice of America broadcasts along the Soviet border in 1947, the Soviet Union jammed those transmissions at great cost. Direct broadcast offered yet another vector through which the West could transmit information into the East. The Soviet Union thus adopted the legal position that direct broadcast satellites cannot transmit into the territory of a foreign state without that nation’s prior consent. Otherwise, such transmissions constituted a violation of sovereignty and interference with the internal affairs of state. The United States and the West meanwhile took the position that the free flow of information should not be hampered. The Universal Declaration of Human Rights and other human rights laws recognized a freedom to information. Besides moral principle, there was also the practical problem that requiring prior consent for direct broadcast transmissions would effectively ban all direct broadcast satellites. The area of broadcast from a satellite cannot be tailored to national boundaries. Nations in close proximity to one another, say East Germany and West Germany, will inevitably receive spillover transmissions directed at the other nation. To require prior consent for such spillover transmissions would effectively prevent the use of direct broadcast satellites. While East and West argued over sovereignty versus freedom of information, developing nations in the Third World articulated their own concerns. Since the early 1960s, the Third World had begun to coalesce to advocate for their own interests, creating a third international political bloc in what had generally been a binary Cold War world. By 1964, the Third World formed the Group of 77, a figure which referred to the number of states in the group, although the group has since grown well beyond this initial size. This group of largely developing nations tried to redress what they perceived to be global cultural and economic imbalances. The Third World tended to favor the Soviet Union’s view that consent must be obtained before sending direct broadcast transmissions into another state. These states complained that Eastern and Western control of global communication satellite networks threatened to destroy the unique culture of nations in the Third World. Direct broadcast satellites seemed to only promise to accelerate the cultural dominance of Europe, the United States, and the economic North. Saudi Arabia’s representative, for example, gave rambling speeches at the United Nations that the Third World could become drowned in a sea of pornography and films with scantily clad women from the West under the guise of “freedom of information.” Third World nations argued that their cultural independence could be preserved only if states had the right to control the broadcast of satellite transmissions into their sovereign territory. Many Third World nations wanted not only the ability to block foreign transmissions but to require that industrialized nations permit them to use direct broadcast technology to disseminate their own content. For these states, the problem was not simply the economic North’s domination of transmissions, but the inability of the Third World to transmit back. This concern coincided with a broader

178  The commercial uses of outer space Third World movement in the 1970s for a New World Information and Communication order. The desire was to create news and publication services indigenous to the Third World to compete with those from the East and West. Chile complained, for example, that three-quarters of all books in the world had been produced by North America, Europe, and the Soviet Union. Latin American nations were bombarded by content from “imperialist monopolies.” By creating their own news and publication services, developing nations sought to counter the stereotypical presentation of developing nations as backwaters. The advent of communication satellites and now direct broadcast satellites, however, promised to further cement Northern domination of the media, for only the most affluent and technologically advanced nations had access to such technology. The argument had merit as the Western view of “freedom of information” began with the presumption that everyone has an equal voice, which the Third World clearly did not. Thus, the Third World demanded economic and technical assistance to participate in the use of direct broadcast satellites. The concerns generated by the impending introduction of direct broadcast satellites led to calls for new rules to govern their use. On November 9, 1972, the U.N. General Assembly voted 102 to 1, with seven abstentions, to direct the COPUOS to develop legal principles governing direct broadcast. The United States was the only nation to vote against the resolution. Over the next decade, the COPUOS drafted principles for direct broadcast, but the negotiations were often difficult. Fundamental disagreements existed over the necessity of prior consent to receive a broadcast, how to address spillover transmissions, and the right of recipient states to participate in developing the content of the programs broadcast to them. The negotiations resulted in a nonbinding resolution of principles on direct broadcast in 1982.3 While the COPUOS debated the use of communication satellites and direct broadcast, some states raced to seize orbital slots in geostationary orbit. Geostationary orbit, or geosynchronous equatorial orbit, is a circular orbit about 36,000 km above the earth’s equator. This orbit is invaluable for communication satellites because a satellite parked there will match the earth’s rotation, allowing it to constantly cover the same geographic area. The room for satellites in geostationary orbit is inherently limited, and only the most advanced spacefaring nations initially could make use of such orbital slots. This created a fear in the Third World that the economic North would seize all the room for satellites in geostationary orbit before developing nations ever had a chance to launch their own satellites. The United States appreciated the concern, and there was widespread support for international regulation to allocate geostationary orbit fairly through the ITU. But this was not enough for some developing nations. In 1976, Columbia, the Republic of Congo, Ecuador, Indonesia, Kenya, Uganda, and Zaire issued the Bogota Declaration asserting sovereignty over the portions of geostationary orbit above these equatorial nations. The Outer Space Treaty prohibits territorial claims in space, but these states had the gall to argue that geostationary orbit 36,000 km above the earth is not “space.” Setting aside

The commercial uses of outer space 179 the frivolous legal arguments, this was an old-fashioned naked landgrab motivated by fear of being left out of the world’s rapid advance toward the economic exploitation of outer space. The Bogota Declaration was little different than the Treaty of Tordesillas in 1494 purporting to divide the New World between Spain and Portugal, or the Berlin Conference of 1884 that came to divide Africa between European colonial powers. In the end, these developing nations engaged in the very same acts as the “imperialist” nations that they had so long condemned, but simply in the new context of outer space.4 The other major topic on the “use” of outer space in the 1970s was the utilization of remote sensing satellites. On July 23, 1972, the United States launched the Earth Resources Technology Satellite or ERTS-1. Today, the satellite is better known as Landsat-1. The satellite was the world’s first remote sensing satellite designed to monitor landmasses. Remote sensing satellites like Landsat-1 had the potential for widespread economic benefits. They could survey for new mineral and other natural resources, monitor ecological changes, mitigate environmental impacts of industrial activity, help manage water resources, and improve farming. From the inception of the Landsat program, the United States invited international cooperation to partake in the beneficial uses of the satellites. When Landsat-1 launched, there were already over 300 requests from scientists in 37 countries to conduct various experiments using the satellite. The United States made the data from Landsat-1 available to anyone who asked. The Third World reacted to Landsat with alarm. Developing nations such as Brazil, Egypt, and India warned that information acquired through Landsat could be used to cheat their people of the natural resources in their country. They demanded that international law recognize the “permanent sovereignty” of states over natural resources in their territory, and the exclusive right to control information about their land gathered by remote sensing. In addition, remote sensing should be permitted only with the prior consent of the state surveyed. Finally, for remote sensing over the high seas and other non-sovereign areas, all information must be disclosed to the international community. Argentina gathered these principles into a draft treaty on the use of remote sensing satellites and submitted the draft for consideration to the COPUOS. The United States was bewildered by the Third World’s concerns. Over the past decade, the COPUOS had repeatedly reaffirmed the right of satellites to pass over and observe foreign nations in orbit. Indeed, as Victor Belaunde of Peru had said in 1962, any other view would be “bizarre.” Landsat-1, like prior satellites, simply took photos of the earth, albeit with more sophistication. The United States also found concerns that the remote sensing data could be misused to the detriment of developing nations to be baffling. Although private companies might use the data to seek mineral rights in a developing nation, the data was available to anyone who asked, so the developing nation could decide whether or not to grant mining concessions and at what cost based on the same information. Further, there is no principle of international law that a state may limit the circulation of information about mineral resources in its territory. Such a principle would have the ridiculous result of making encyclopedias illegal.

180  The commercial uses of outer space Developing nations, over time, softened their demands on the regulation of remote sensing as the understanding of remote sensing technology improved. Most developing nations dropped the demand for prior consent to conduct remote sensing over their territory. India, for example, acknowledged that remote sensing could not practically be confined to the borders of a state. The focus turned instead to prevent the misuse of information collected by remote sensing. In 1986, the United Nations adopted a nonbinding resolution containing principles for remote sensing satellites.5

Common heritage of mankind In the late 1960s and throughout the 1970s, the Third World argued that international law should recognize that natural resources in non-sovereign areas are the “common heritage of mankind.” This principle was another way in which the Third World sought to correct what it viewed as systemic global economic inequality by guaranteeing all nations equal access to certain natural resources. Some have argued that the concept of common heritage comes from the Outer Space Treaty. Argentina advanced this narrative in 1971 when claiming that common heritage was an accepted principle of international law. The Outer Space Treaty, however, does not contain the words “common heritage,” though the first article does state that outer space is the “province of all mankind.” Whether the idea comes from space law or not, common heritage first saw its substantive development as a legal principle under the law of the sea. On November  1, 1967, Maltese ambassador Arvid Pardo gave a captivating speech to the U.N. General Assembly warning of future conflict over the ocean floor. As with outer space, new technologies promised to make the economic exploitation of the seabed feasible. Early exploration had revealed that potatoshaped nodules rich in metals lay on the ocean floor. As innovations moved deepsea oil extraction into deeper and deeper waters, the mining of these nodules was becoming economically viable. Ambassador Pardo warned that without the United Nations’ intervention, conflicts over the ocean floor were sure to arise. He proposed the creation of an international regime to govern the seabed and that a declaration be issued to reserve the ocean floor for peaceful purposes. The international community responded favorably to Ambassador Pardo’s call. On December  18, 1967, the United Nations adopted Resolution 2340 (XXII) establishing an ad hoc Committee to Study the Peaceful Uses of the Seabed and Ocean Floor Beyond the Limits of National Jurisdiction, which later became a permanent committee. This development paralleled the creation of the ad hoc COPUOS in 1959 and the later permanent COPUOS. Developing nations, with the exception of a few Latin American states with extensive territorial claims on the seafloor, generally favored the creation of an international regime. The West and other developed nations generally supported an international regime as well. The most important support came from the United States, which was the nation in the best position to begin widespread exploitation of the seabed. The only states that rejected any international regime were the Soviet Union and its allies.

The commercial uses of outer space 181 The United Nations made tangible progress toward international governance of the ocean floor in 1970. That year, the United Nations adopted the Declaration of Principles Governing the Seabed and the Ocean Floor. The most important principle in the declaration was the acceptance that the seabed, the ocean floor, and the resources found there “are the common heritage of mankind.” The declaration called for a treaty to create an international regime “for the orderly and safe development and rational management of the area and its resources.” Resources from the ocean floor were subject to “equitable sharing by States,” taking into account the “needs of developing countries.” This declaration coincided with the rise of another Third World movement for a New International Economic Order in the 1970s. The movement emphasized assistance to developing nations and to put an end to international financial structures that, in the view of developing nations, largely benefited only the existing world powers. The declaration’s call for the equitable distribution of resources, especially accounting for the needs of developing nations, was designed to take a step toward correcting the economic imbalance. The drafting of a treaty to implement an international regime and the concept of “common heritage” for the ocean floor, however, proved difficult. The United Nations convened the third Conference on the Law of the Sea to draft a comprehensive treaty for the world’s oceans and ocean floor in 1973. By the time of the conference, however, the United States’ support for common heritage was beginning to wane. The United States initially supported common heritage as a concession to developing nations in return for ensuring the freedom of navigation on the high seas. The 1973 OPEC oil embargo, however, gave the United States second thoughts about an international authority governing seabed mining, which could constrain the international supply of metals. Moreover, the economic benefit of deep seabed mining had been thrown into doubt by early studies, which suggested seabed mining would not significantly reduce the global price of metals. The introduction of a new source of metals would, however, significantly harm the revenues of metal-exporting states. With common heritage calling for “equitable sharing,” some revenue from deep seabed mining would go to the landbased metal exporters to compensate for their losses, but analysis suggested that revenues from seabed mining would not be enough to compensate for lost revenue for land-based exporters. Negotiators also had to slog through difficult technical issues such as production quotas, compensation for the transfer of technology, and protection of existing investments. The one note of progress was that, by 1974, the Soviet Union was willing to accept “common heritage” in the context of the ocean floor. By 1976, the implementation of common heritage was the only issue that prevented the United Nations from completing a comprehensive treaty on the law of the sea. The effort to implement common heritage for the ocean floor suffered a fatal blow in 1981. The American people elected Ronald Reagan as president and his administration was hostile to an international regime for seabed mining. The United States withdrew its delegates from the law of the sea conference in 1981, which many nations took as a breach of good faith. When the United States

182  The commercial uses of outer space returned the following year, it announced that the treaty was largely fine except for the portion on the international regime for seabed mining.6

The moon agreement Developing nations sought to apply the principle of “common heritage” being developed in the law of the sea to outer space. Specifically, developing nations wanted to apply the principle of common heritage to any mining activities that might occur on the moon or other celestial bodies. The COPUOS, however, encountered disagreements similar to those identified during the debate on the law of the sea. The COPUOS began to consider a treaty to govern the exploration and use of celestial bodies in 1968. The Legal Subcommittee’s agenda that year included an item on the “legal rules which govern man’s activities on the moon and other celestial bodies.” Support for a treaty came from Argentina, on behalf of the developing world, and the Soviet Union, on behalf of the socialist world. Each state, however, had a fundamentally different reason for supporting a treaty to govern celestial bodies. For Argentina, the main purpose was to establish the principle of common heritage on celestial bodies. In a five-article draft treaty submitted in 1970, Argentina proposed the creation of an international regime to govern the mining of resources on the moon. As with the law of the sea, such mining would be subject to “equitable distribution” keeping in mind the needs of developing nations. In 1971, the Soviet Union submitting a draft treaty that looked more akin to the Outer Space Treaty but made specific in its application to celestial bodies. Like the Outer Space Treaty, the main purpose of the Soviet proposal was disarmament. A  cover letter attached to the Soviet submission emphasized that it was “essential that the activities of States on the moon should not be allowed to become a source of international conflict.” The Soviet draft accordingly prohibited the use of force on the moon, banned weapons of mass destruction, and outlawed military maneuvers. The same prohibitions extended above the moon to “circumlunar space.” The COPUOS began to consider the draft treaties in 1972 in parallel with the negotiations on the Registration Convention. The Legal Subcommittee was able to quickly combine the Argentine and Soviet proposals into a single draft. The vast majority of the unified draft was uncontroversial. Much of the proposed treaty simply restated principles from the Outer Space Treaty. Inevitably, however, some old debates remerged in this new context. For example, the United States favored stronger obligations to disclose activities on the moon and celestial bodies, whereas the Soviet Union favored only nonbinding duties. As with the Outer Space Treaty, the COPUOS settled the dispute by requiring the disclosure of activities only “to the extent feasible and practicable.” Another old debate was liability. When the Liability Convention was completed in 1971, the COPUOS had agreed that it did not govern damage on the surface of other celestial bodies. While there was some initial effort to expand upon the rules of liability in the context of a treaty governing celestial bodies, the idea was

The commercial uses of outer space  183 ultimately dropped as few delegates had the motivation to reopen the complex issue of liability after having just concluded the matter after years of painstaking negotiation. Instead, like the Outer Space Treaty, the COPUOS decided that the treaty governing celestial bodies should simply state in principle that states are liable for damage on the surface of celestial bodies, leaving open the possibility of a more detailed treaty on the matter in the future. By 1973, it became clear that there were only two real issues that required substantial debate: (1) the scope of the treaty, namely whether it should apply to celestial bodies besides the moon, and (2) the principle of “common heritage” as applied to celestial bodies.7 The COPUOS’s view on the scope of the draft treaty varied over time. At first, a majority favored the application of the treaty only to the moon. The moon was the only celestial body likely to be subject to any significant degree of human activity, and the first treaty governing a celestial body was likely to have flaws. There was no need to extend those flaws to all celestial bodies, and more specific treaties could be written for other planets over time. This view began to change after the United States and other Western delegations commented that many principles in the draft treaty, such as freedom of scientific exploration and environmental protection, were generally applicable. Developing nations, which were primarily interested in a declaration that the moon’s resources are the common heritage of mankind, had no problem extending the principle of common heritage to all celestial bodies. There were efforts, however, to place reasonable limits on the scope of the treaty. The Committee on Space Research, for example, urged the COPUOS to limit the treaty to celestial bodies within the solar system. If intelligent life exists in other star systems, applying the treaty to those systems could be a kind of arrogant colonialism. Certainly, the principle of “common heritage of mankind” would be problematic. But the COPUOS ignored the concern and decided to apply the treaty to all celestial bodies, though the treaty is still referred to colloquially as the Moon Agreement.8 The more difficult issue to resolve was the concept of common heritage. In 1973, the COPUOS had a full draft of the treaty, and disagreement over the application of common heritage was the one issue that prevented the finalization of the draft. Though the committee continued to debate other issues, such as scope and the duty to disclose activities on celestial bodies, the committee recognized that if the one issue of common heritage could be resolved, all other issues would be settled as well. The concept of common heritage, however, dragged negotiations on from 1974 until 1979. The positions taken by states on the issue of common heritage in the context of celestial bodies largely mirrored the positions taken on the same issue in the context of the ocean floor. Developing nations viewed common heritage and an international regime to equitably distribute resources as part of the program for a New International Economic Order. The principle of common heritage would also ensure that the superpowers would not seize all the natural resources available on celestial bodies before developing nations acquired independent capabilities to reach outer space. The United States and other Western nations were largely

184  The commercial uses of outer space supportive of common heritage, at least in principle. The Soviet Union and Eastern bloc nations were almost uniformly opposed. There was one significant difference between the ocean floor and celestial bodies that impacted the course of negotiations – the immediacy of any feasible effort to economically exploit natural resources. At the time, deep seabed mining was still rather on the edge of possibility. This made negotiations on the details of an international regime on the ocean floor difficult because by necessity there was some speculation about the impacts of seabed mining on the global market and land-mining nations, the effects of technology transfer, and the overall management of the regime. These same problems were exponentially more difficult to address for mining on celestial bodies, which was still barely conceivable in practice. For example, some states noted that it was not even clear that there were any minerals on the moon worth mining and exporting back to the earth. The speculative nature of any mining on celestial bodies caused Western states to propose that the Moon Agreement simply state, as a principle, that the natural resources on celestial bodies are the “common heritage of mankind,” and the creation of an international regime would be revisited at a future date when mining became feasible. Although the logic of this approach was difficult to refute, some developing nations were concerned that the space powers would not fulfill their promise to create an international regime at a later date once space mining began. As a result, states like Argentina and India proposed that the Moon Agreement also include a moratorium on any mining in space until an international regime was in place. A proposal by Egypt, India, and Nigeria even stated that the property interest of any mineral samples taken from celestial bodies would vest in the United Nations. The United States flatly refused to accept any moratorium on mining. As in the context of the ocean floor, the United States argued that a moratorium would discourage investment in technology that might make mining feasible in the first place. Sweden added that it was appropriate for nations that pioneered mining in space to enjoy those benefits for some brief period before an international regime was in place. The restrictions on the use of minerals on celestial bodies – without exporting back to the earth – and the collection of samples would also hamper the scientific investigation. Developing nations were willing to compromise somewhat to allow limited extraction of resources purely for scientific investigation, but they wanted either a moratorium on economic exploitation or some other guarantee that would require the negotiation of an international regime when exploitation became feasible. Negotiations stumbled, however, on how it should be determined when economic exploitation had become feasible. One other significant obstacle to the adoption of common heritage for the Moon Agreement was the total opposition of the Soviet Union and many Eastern bloc nations. Although the Soviet Union was willing to accept common heritage for the ocean floor, it argued the same principle did not apply to celestial bodies. The ocean floor was arguably the “common heritage of mankind” because it is located on the planet where humanity was born. The same could not be said of other celestial bodies. Moreover, while deep-sea technology had advanced to the point

The commercial uses of outer space 185 where specifics for the meaning and implementation of common heritage could be discussed for the ocean floor, the application of common heritage to celestial bodies remained vague and ambiguous. The matter was simply not ripe for discussion. More than once, the Soviet Union argued the discussion of common heritage was premature because it was unclear whether the moon had any natural resources worth mining. The Soviet Union argued that the Moon Agreement should be adopted without reference to common heritage because the real value of the treaty was to reserve celestial bodies for peaceful purposes. Common heritage should be revisited later if space mining ever happened. The Soviet Union’s focus on the demilitarization of celestial bodies might have held sway in the late 1950s and 1960s, but the world had moved on from disarmament by the 1970s. Economic development was now in vogue and supplanted the Cold War as the most pressing international issue for most nations.9 The COPUOS considered two compromises in 1976 that brought the committee closer to a potential agreement. The first proposal came from Italy, which sought to make a distinction between resources mined on a celestial body for export back to the earth for economic reasons and resources mined and used in situ on the celestial body. The treaty would place a moratorium on exports until an international regime was in place but not on the use of resources in situ. A counterproposal came from a group of developing nations including Argentina, Brazil, Chile, Indonesia, Mexico, Nigeria, Romania, and Sierra Leone. This proposal acknowledged the Western view that it was premature to negotiate an international regime to govern mining on celestial bodies, so it would instead require the United Nations to convene a conference once a decade to determine whether the time was ripe to create such a regime. Until the regime was in place, all uses of natural resources on celestial bodies must be “carried out in a manner compatible with the principle” of common heritage. Although negotiations had at least led to the recognition that the time was not ripe to develop an international regime, the position of developing nations remained unacceptable to the West, and of course the Soviet Union. For the West, the requirement to use natural resources on celestial bodies in a manner “compatible” with common heritage appeared to be the equivalent of a moratorium on mining, which continued to be unacceptable. The Soviet Union meanwhile was willing to accept a regular conference to discuss the need for an international regime, but it was still unwilling to accept that common heritage applied to celestial bodies. At this point, rather than attempting to make further compromises, many delegates on the COPUOS chose to await further developments from the Conference on the Law of the Sea. The conference was planning to reconvene in July 1976, when it would address common heritage for the ocean floor. If a breakthrough occurred in that context, some solution might be found for celestial bodies. As it turned out, however, the negotiations on an international regime for deep-seabed mining became bogged down in minutiae, and no agreement was reached for years.10

186  The commercial uses of outer space No further significant progress was made until 1978, when Austria submitted a potential compromise on common heritage. The Austrian draft proposed that natural resources on celestial bodies be treated as the common heritage of mankind and that states would seek to establish an international regime for exploitation of the resources “as such exploitation is about to become feasible.” Like the developing states’ proposal in 1976, the Austrian proposal required that all activities relating to natural resources be “compatible” with the international regime to be created under the principle of common heritage. Unlike the developing states’ proposal, the Austrian draft added that the international regime shall account for “the efforts of those countries which have contributed to the exploration of the moon.” This seemed to open the door to some limited use of natural resources prior to the creation of an international regime. The consensus on the COPUOS was that the Austrian draft was a basis for a potential compromise, though nearly everyone thought some amendment was necessary. The most crucial sign of progress came from the Soviet Union, which still questioned the concept of common heritage, but stated that the Austrian proposal was “not a bad basis for a compromise solution.” When the COPUOS convened in 1979, it was under pressure to finish the Moon Agreement or move on to other priorities. The chairman of the COPUOS, for example, stated that the position of all delegates on common heritage remained virtually the same as when negotiations began, and he urged all parties to find the will for political compromise. The committee’s feeling was that, after six years of negotiation, if an agreement still could not be reached that year, then an agreement might simply be impossible, and the committee should move to other issues. The COPUOS was also beginning to lose political importance. While the COPUOS had originally reported to the United Nations’ First Committee, which handles matters of disarmament and international security, by 1978, the COPUOS was transferred to the Fourth Committee, responsible for decolonization and special political matters. The international community might not embrace the COPUOS’s latest attempt at a space treaty if the committee did not move quickly while it still retained some political relevance. On July 3, 1979, the COPUOS Chairman announced that a consensus had been reached on the Moon Agreement after a series of informal consultations. The final text declared that natural resources on the moon and other celestial bodies are the common heritage of mankind. An international regime to exploit those natural resources would be created “as such exploitation is about to become feasible.” In the meantime, there would be no moratorium on the collection of natural resources, especially mineral samples for scientific purposes. States simply could not claim ownership of those resources “in place” on celestial bodies. The United States commented that the absence of a moratorium and the explicit right to collect samples was key to its support of the final text. While the Soviet Union no longer objected to a declaration that natural resources on celestial bodies are subject to “common heritage,” it did emphasize that the meaning of common heritage in the context of outer space remained vague and would require further definition in the future to have practical meaning.11

The commercial uses of outer space 187 The COPUOS’s work on the Moon Agreement was rather for naught. As with the law of the sea, the election of Ronald Reagan as president in 1981 effectively ended the United States’ support for an international regime for economic exploitation in space to the extent such support ever existed. The United States would not ratify the Moon Agreement, and neither did the Soviet Union. Unlike every other space treaty, the Moon Agreement has not seen widespread acceptance. Today, it has only 18 state parties and is largely considered a failed treaty.

Notes 1 U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.47 (17 April 1967), 13, 23–32 (France); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.63 (20 July 1966), 8 (France); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.102–110 (19–28 June  1968), 5–6 (Czechoslovakia), 15 (ITU), 18 (United Kingdom), 30–31 (Canada), 65 (Czechoslovakia); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/ AC.105/C.2/SR.111–131 (9 June–4 July 1969), 10–11 (Italy); U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Seventh Session (4–28 June 1968) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/ AC.105/45 (11 July 1968), 10–12. 2 U.N. First Committee, 18th Sess., Verbatim Records, U.N. Docs. A/AC.1/PV.1342 (2 December  1963), 52–55 (Austria); U.N. First Committee, 17th Sess., Summary Records, U.N. Docs. A/C.1/SR.1289–1291 (3–4 December 1962), Statements by Austria, Canada, ITU (de Wolf), and United States; U.N. First Committee, 18th Sess., Verbatim Records, U.N. Docs. A/AC.1/PV.1342 (2 December  1963), 21–22 (United States), 52–55 (Austria), 72 (United Kingdom), 84–85 (Italy); U.N. First Committee, 22nd Sess., Official Records, U.N. Docs. A/C.1/PV.1500 (19 October 1967), 4 (Italy); U.N. First Committee, 23rd Sess., Official Records, U.N. Docs. A/C.1/PV.1644–1645 (17–18 December 1968), Statements by Belgium, Italy, Sweden, Tunisia, and United Kingdom; U.N. First Committee, 24th Sess., Official Records, U.N. Docs. A/C.1/ PV.1721 (11 December 1969), 1 (Czechoslovakia), 6 (Sweden); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.10, 13–14 (10, 13 September 1962), Statements by Chairman, ITU, Brazil, Egypt, and Italy; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.20–21 (9–12 September  1963), Statements by ITU and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.26–27, 29–31, 34 (27–28, 30 October–3 November, 5 November 1964), Statements by Austria, Belgium, Bulgaria, Czechoslovakia, France, Japan, Soviet Union, United Kingdom, and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/ PV.37 (5 October 1965), 23 (Soviet Union), 30–31 (United States), 43–45 (Italy); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.53–60 (15–22 October 1968), 36–37 (United States), 66–72 (Sweden), 97–100 (ITU), 134–135 (France); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.61–67 (8–15 September  1969), 77 (ITU); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.7 (7 June  1962), 2–3 ITU (Glazer); U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.17 (17 April  1963), 5 (Soviet Union); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.29–37 (9–26 March  1964), 76–78 (ITU); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.111–131 (9 June–4 July  1969), 30 (Argentina), 32 (Romania); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.152–169 (7 June–2 July 1971), 43 (Chairman), 63–64 (Sweden); U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space. U.N. Doc. A/5181 (27 September 1962), 7; U.N. COPUOS,

188  The commercial uses of outer space Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/5785 (13 November 1964), 5; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/7621/Add.1 (5 December 1969), 1; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Seventh Session (4–28 June 1968) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/ AC.105/45 (11 July 1968), Annex III; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (9 June–4 July 1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July 1969), Annex III; U.N. COPUOS, Space Activities and Resources: A Review of the Activities and Resources of the United Nations, of the Specialized Agencies and of Other Competent International Bodies Relating to the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/100/Add.1 (25 April 1973), 48–53, 56; Stephen E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space CoOperation (International Astronautical Federation, 2012), 23, available at www. iafastro.org/wp-content/uploads/2014/04/IGY-ACHA-Study.pdf; Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Leiden: Matinus Nijhoff, 2010), 29; Von Hardesty and Gene Eiseman, Epic Rivalry: The Inside Story of the Soviet and American Space Race (Washington, DC: National Geographic Society, 2007), 196; Adlai Stevenson, Airgram from the Mission tot eh United Nations to the Department of State, 8 November 1963, available at https://history.state.gov/historicaldocuments/frus1961-63v25/d447; U.N. COPUOS Legal Sub-Committee, Argentina and France: Recommendation, U.N. Doc. A/AC.105/C.2/Rev.2 (30 June 1971). 3 U.N. First Committee, 24th Sess., Official Records, U.N. Docs. A/C.1/PV.1719–1721 (11–12 December 1969), Statements by Belgium, Hungary, Soviet Union, and Sweden; U.N. First Committee, 27th Sess., Official Records, U.N. Docs. A/C.1/PV.1861– 1871 (12–25 October  1972), Statements by Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Byelorussia, Canada, Chile, Czechoslovakia, Egypt, El Salvador, France, Hungary, Indonesia, Iran, Iraq, Italy, Japan, Mexico, Mongolia, Netherlands, Poland, Romania, Saudi Arabia, Soviet Union, Turkey, Ukraine, United Kingdom, and United States; U.N. GAOR, 27th Sess., 2081st plen. mtg., U.N. Doc, A/PV.2081 (9 November 1972), 4–5 (United States); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.53–60 (15–22 October 1968), 41–45 (Canada), 52–53 (Soviet Union), 85–86 (United Kingdom), 143–144 (Canada); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.61–67 (8–15 September  1969), 33–34 (Soviet Union), 57–58 (Belgium), 72–74 (Australia), 85–91 (Sweden), 109 (Sweden), 132 (India), 163–165 (Romania), 179 (Bulgaria), 190 (Brazil), 194 (Soviet Union), 199–200 (Canada); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.101 (3 September 1971), 103 (United Kingdom), 108 (Brazil); U.N. COPUOS, Verbatim Records, U.N. Docs. A/ AC.105/PV.111, 113–115, 119 (6–11, 15 September  1972), Statements by Argentina, Austria, Brazil, Canada, Egypt, India, Iran, Romania, Soviet Union, UNESCO, United Kingdom, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.62 (19 July 1966), 5 (Egypt), 8 (Brazil); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.82 (7 July  1967), 5–6 (Argentina); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.102–110 (19–28 June 1968), 8 (Sweden), 17 (Soviet Union), 32 (Sweden), 67; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.152–169 (7 June–2 July 1971), 60 (Canada), 67 (Egypt), 85–87 (UNESCO), 128–129 (France); U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/7285 (18 October 1968), 5; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/7621/Add.1 (5 December  1969), 9, 22–23, 32–39, 87–93; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/8720 (15 September 1972), 10–11; U.N. COPUOS, Draft Report of the Committee on the

The commercial uses of outer space 189 Peaceful Uses of Outer Space on the Work of Its Twentieth Session, U.N. Doc. A/ AC.105/L.98/Add.1 (28 June  1977); U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Thirteenth Session (6–31 May 1974), U.N. Doc. A/AC.105/133 (6 June  1974), 2–3, 11–12; U.N. COPUOS Legal SubCommittee, Report of the Legal Sub-Committee on the Work of Its Fifteenth Session (3–28 May 1976), U.N. Doc. A/AC.105/171 (28 May 1976), Annex II at 1–5; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Sixteenth Session (14 March–8 April 1977), U.N. Doc. A/AC.105/196 (11 April 1977), Annex II at 1–3; U.N. COPUOS Legal Sub-Committee, Report of the Legal SubCommittee on the Work of Its Seventeenth Session (13 March–7 April  1978), U.N. Doc. A/AC.105/218 (13 April 1978), Annex II at 1–7; U.N. GAOR, Union of Soviet Socialist Republics: Request for the Inclusions of a Supplementary Item in the Agenda of the Twenty-Seventh Session, A/8771 (9 August 1972), 1–3; U.N. GAOR, 27th Sess., 2081st plen. mtg., U.N. Doc, A/PV.2081 (9 November 1972); United Nations, General Assembly Resolution 37/92, Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, A/RES/37/92 (10 December 1982); Stanley Meisler, United Nations: A History (New York: Grove Press, 1995), 228–229. 4 U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.47 (17 April  1967), 31–32 (France); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.133 (2 July 1974), 22 (Italy); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/ PV.171–173, 176 (22–23, 29 June 1977), Statements by Australia, Columbia, East Germany, and Italy; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.181, 184–185 (28, 30 June  1978), Statements by Columbia, Ecuador, and Soviet Union; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.272–273, 280 (22–23 March, 5 April 1977), Statements by Ecuador, Kenya, Indonesia, and ITU; U.N. COPUOS, Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.288–290 (16–20 March  1978), Statements by Belgium, Brazil, Italy, Nigeria, United Kingdom, and United States; U.N. Special Political Committee, Summary Record, U.N. Doc. A/SPC/33/SR.7 (17 October 1978), 7 (Columbia); U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/8020 (12 December  1970), 12; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/9620 (12 July 1974), 12; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Seventeenth Session (13 March–7 April 1978), U.N. Doc. A/AC.105/218 (13 April 1978), 10; Stephen E. Doyle, ed., The International Geophysical Year: Initiating International Scientific Space Co-Operation (International Astronautical Federation, 2012), 80–81, available at www.iafastro.org/wp-content/uploads/2014/04/IGY-ACHA-Study.pdf. 5 U.N. First Committee, 24th Sess., Official Records, U.N. Docs. A/C.1/PV.1719–1720 (11 December  1969), Statements by United Kingdom and United States; U.N. First Committee, 29th Sess., Provisional Verbatim Records, U.N. Docs. A/C.1/PV.1990, 1995 (15, 17 October 1974), Statements by Brazil and United States; U.N. First Committee, 30th Sess., Provisional Verbatim Records, U.N. Docs. A/C.1/PV.2049 (13 October  1975), 28 (United States), 41–42 (Australia); U.N. Special Political Committee, Summary Record, U.N. Doc. A/SPC/33/SR.8 (18 October 1978), 6 (Czechoslovakia); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.99–100 (2–3 September 1971), Statements by India, Romania, Soviet Union, Sweden, and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.111, 113 (6–7 September 1972), Statements by Canada, Egypt, France, Italy, Romania, Sweden, and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.134, 136 (3, 5 July 1974), Statements by Austria and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.146, 149, 152 (11–12, 17 June 1975), Statements by Austria, Brazil, France, and United States; U.N. COPUOS, Verbatim Records,

190  The commercial uses of outer space U.N. Docs. A/AC.105/PV.192 (19 June  1979), 8–10 (India); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.152–169 (7 June–2 July 1971), 21 (Argentina), 48 (Argentina), 69 (Egypt), 130 (France); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.187–191 (2–5 May 1972), 13 (Canada), 34 (United States); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.208–225 (6–31 May  1974), 11 (Canada), 22 (Brazil), 24 (Japan), 26 (Belgium), 32 (United Kingdom), 34 (Romania), 36 (Mexico), 86–89 (Brazil), 89–90 (Sweden), 91–92 (Argentina), 95 (West Germany), 99–100 (Czechoslovakia), 108–111 (United States), 115–116 (United Kingdom), 117– 118 (Italy), 121 (India), 124 (Brazil); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.272–273 (22–23 March 1977), Statements by East Germany, Sweden, and United States; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/8420 (10 September 1971), 3; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/8720 (15 September 1972), 17–18; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/10020 (17 June 1975), 5; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/33/20 (7 August 1978), 6, 11; U.N. COPUOS Legal Sub-Committee, Report of the Legal SubCommittee on the Work of Its Ninth Session (8 June–3 July 1970) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/85 (3 July 1970), Annex II at 2; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fifteenth Session (3–28 May 1976), U.N. Doc. A/AC.105/171 (28 May 1976), 7, Annex III at 1–5; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Sixteenth Session (14 March–8 April 1977), U.N. Doc. A/AC.105/196 (11 April  1977), Annex III at 1–6; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Seventeenth Session (13 March–7 April 1978), U.N. Doc. A/AC.105/218 (13 April 1978), Annex III at 1–8; United Nations, General Assembly Resolution 41/65, Principles Relating to Remote Sensing of the Earth from Outer Space, A/RES/41/56 (3 December 1986). 6 James B. Morrell, The Law of the Sea: The 1982 Treaty and Its Rejection by the United States (Jefferson, NC: McFarland  & Company, Inc., 1992), 16, 23–27, 32, 41–49, 65–81; United Nations, General Assembly Resolution 2340 (XXII), Examination of the Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying the High Seas Beyond the Limits of Present National Jurisdictional, and the Use of Their Resources in the Interests of Mankind, A/RES/2340 (XXII) (8 December 1967); United Nations, General Assembly Resolution 2749 (XXV), Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction, A/RES/2749 (XXV) (17 December  1970); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.152–169 (7 June–2 July  1971), 19–20 (Argentina), 51 (Belgium), 144–145 (Argentina); U.N. COPUOS Legal SubCommittee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.197 (2 April 1973), 2–4 (Argentina); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/ AC.105/C.2/SR.208–225 (6–31 May 1974), 45 (Argentina); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.164 (25 June 1976), 29–35 (Argentina). 7 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.58, 63 (13, 20 July 1966), Statements by Austria and France; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.82 (7 July 1967), 4–5 (Argentina); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.111–131 (9 June–4 July  1969), 49 (Argentina); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.152–169 (7 June–2 July 1971), 17 (Chairman), 19–20 (Argentina), 41 (Chairman), 65 (United Kingdom), 129 (France), 144–145 (Argentina); U.N. COPUOS Legal Sub-Committee,

The commercial uses of outer space 191 Summary Records, U.N. Docs. A/AC.105/C.2/SR.187–191 (2–5 May  1972), 3–4 (Japan), 8 (Soviet Union), 10–11 (Canada), 27–28 (Australia); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.202, 204–205 (13, 18–19 April 1973), Statements by Chairman, Italy, and Japan; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.208–225 (6–31 May 1974), 18–19 (Czechoslovakia); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.100 (3 September 1971), 59 (Soviet Union), 91 (India); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.110–111, 114–115 (5–6, 8–11 September 1972), Statements by LSC Chairman, Australia, Austria, Brazil, and Soviet Union; U.N. First Committee, 26th Sess., Official Records, U.N. Docs. A/C.1/PV.1820–1822, 18–2425 (5–10 November  1971), Statements by Brazil, Madagascar, Netherlands, Soviet Union, United Kingdom, and United States; U.N. First Committee, 27th Sess., Official Records, U.N. Docs. A/C.1/PV.1864 (16 October  1972), 21–22 (Belgium); U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (9 June–4 July 1969) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/58 (4 July  1969), 4–5, Annex I  at 4–7; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Ninth Session (8 June–3 July 1970) to the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/85 (3 July 1970), 41, Annex II at 1–2; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Tenth Session (7 June–2 July 1971), U.N. Doc. A/AC.105/94 (8 July 1971), 2; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Eleventh Session (10 April–5 May 1972), U.N. Doc. A/AC.105/101 (11 May 1972), 4–7, Annex I at 1, 7–8; U.N. COPUOS Legal Sub-Committee, Report of the Legal SubCommittee on the Work of Its Twelfth Session (26 March–20 April 1973), U.N. Doc. A/AC.105/115 (27 April 1973), 4–5; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/8720 (15 September 1972), 3–4, 26–27; U.N. GAOR, Union of Soviet Socialist Republics: Request for the Inclusion of an Item into the Provisional Agenda of the Twenty-Sixth Session, A/8391 (4 June 1971); U.N. First Committee, 26th Sess., Austria, Belgium, Bulgaria, Czechoslovakia, Hungary, India, Mongolia, Poland, Romania, Sweden, and Union of Soviet Socialist Republics: Draft Resolution, U.N. Doc. A/C.1/L.572 (8 November  1971); U.N. First Committee, 26th Sess., USSR: Draft Treaty Concerning the Moon, U.N. Doc. A/C.1/L.568 (5 November 1971); U.N. GAOR, 26th Sess., Preparation of an International Treaty Concerning the Moon, U.N. Doc. A/8529 (22 November 1971); United Nations, General Assembly Resolution 2779 (XXVI), Preparation of an International Treaty Concerning the Moon, A/RES/2779(XXVI) (29 November 1971); U.S. Congress, Senate, Committee on Commerce, Science, and Transportation, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, May 1980, 96th Cong., 2d sess., 1980, S. Doc. 59–896 O, 8. 8 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.187–191 (2–5 May 1972), 8 (Soviet Union), 10 (Canada), 15 (Poland),19 (Egypt), 21–22 (Austria), 23–24 (United Kingdom), 41 (Hungary), 27–28 (Australia), 29–30 (Bulgaria), 31–32 (United States), 38 (Romania), 39–40 (Belgium), U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR., 192, 197–198 (28 March, 2–4 April 1973), Statements by Argentina, Czechoslovakia, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.208–225 (6–31 May  1974), 18–19 (Czechoslovakia); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.113, 115 (7, 11 September 1972), Statements by COSPAR, Iran, and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.134 (3 July 1974), 26 (United States); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.144, 146–147 (9, 11 June 1975), Statements by Brazil, Japan, Soviet Union; U.N. First Committee, 27th Sess., Official Records,

192  The commercial uses of outer space U.N. Docs. A/C.1/PV.1864 (16 October 1972), 21–22 (Belgium); U.N. First Committee, 28th Sess., Provisional Verbatim Records, U.N. Docs. A/C.1/PV.1982 (7 December 1973), 54–55 (United States). 9 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.187–191 (2–5 May 1972), 4 (Japan), 8 (Soviet Union), 10–11 (Canada), 14 (Hungary), 16 (Poland), 20 (Egypt, India), 21 (Lebanon), 22 (Austria), 23–24 (United Kingdom), 26 (France), 29–30 (Bulgaria), 31–32 (United States), 39 (Czechoslovakia), 42 (Argentina), 44 (Iran); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.192, 202, 204–206 (26 March, 13, 18–19 April 1973), Statements by Chairman, Argentina, Bulgaria, France, India, Italy, Japan, Soviet Union, and United States; U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.208–225 (6–31 May  1974), 9 (India), 18–19 (Czechoslovakia), 25 (Belgium), 45–46 (Czechoslovakia), 103–104 (Hungary), 104 (Bulgaria); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.226–241 (10 February–7 March  1975), 8 (Soviet Union), 14 (Chairman), 19 (Belgium), 22 (India), 37–38 (Egypt), 41–42 (Brazil), 50–51 (Romania); U.N. COPUOS, Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/SR.291 (21 March  1978), 6 (Colombia); U.N. COPUOS, Verbatim Records, U.N. Docs. A/ AC.105/PV.111, 113 (6–7 September 1972) Statements by Argentina, Canada, India, and Sweden; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.123–126 (28 June–2 July  1973), Statements by Austria, Brazil, France, Poland, Sweden, and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.131–132, 134 (1–3 July 1974), Statements by Chairman, Australia, Austria, Canada, East Germany, and Iran; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.171 (22 June 1977), 68–69 (Venezuela); U.N. First Committee, 24th Sess., Official Records, U.N. Docs. A/C.1/PV.1720 (11 December 1969), 15 (Lebanon); U.N. First Committee, 28th Sess., Provisional Verbatim Records, U.N. Docs. A/C.1/PV.1982 (7 December  1973), 54–55 (United States); U.N. First Committee, 29th Sess., Provisional Verbatim Records, U.N. Docs. A/C.1/PV.1989, 1992 (14, 16 October  1974), Statements by Byelorussia, East Germany, and Soviet Union; U.N. First Committee, 30th Sess., Provisional Verbatim Records, U.N. Docs. A/C.1/PV.2050 (13 October 1975), 41–42 (India), 57–60 (Chile); U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Eleventh Session (10 April–5 May 1972), U.N. Doc. A/AC.105/101 (11 May 1972), Annex I at 14–15, 17, 19; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Thirteenth Session (6–31 May 1974), U.N. Doc. A/AC.105/133 (6 June 1974), Annex I at 1–2, 5–9, 14; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fourteenth Session (10 February–7 March  1975), U.N. Doc. A/ AC.105/147 (11 March 1975), Annex I at 1–3; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/9020 (26 June 1973), 23; U.N. COPUOS, Draft Treaty Relating to the Moon, Austria: Proposal, U.N. Doc. A/AC.105/L.74 (5 July  1973); U.N. COPUOS, Draft Treaty Relating to the Moon, Belgium: Working Paper, U.N. Doc. A/AC.105/L.93 (8 May 1974); U.N. COPUOS Legal Sub-Committee, Draft Treaty Relating to the Moon, India and Nigeria: Working Paper, U.N. Doc. A/AC.105/C.2/L.97 (13 May 1974); U.N. COPUOS Legal SubCommittee, Draft Treaty Relating to the Moon, Mongolian People’s Republic: Working Paper, U.N. Doc. A/AC.105/C.2/L.98/Rev.1 (20 May 1974); U.S. Congress, Senate, Committee on Commerce, Science, and Transportation, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, May 1980, 96th Cong., 2d sess., 1980, S. Doc. 59–896 O, 9–31. 10 U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.246, 249–250 (5–7 May  1976), Statements by Chile, East Germany, Italy, Mexico, and Soviet Union; U.N. COPUOS Legal Sub-Committee, Summary Records

The commercial uses of outer space  193 (Corrigendum), U.N. Docs. A/AC.105/C.2/SR.246–265 (3–28 May  1976), 4 (Italy); U.N. COPUOS Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.269 (17 March  1977), 2 (Chile), 49 (Venezuela); U.N. COPUOS, Legal SubCommittee, Summary Record, U.N. Doc. A/AC.105/C.2/SR.308 (20 March  1979), 2 (Indonesia); U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.158–160, 164 (22–23, 25 June 1976), Statements by Argentina, Chile, Indonesia, Nigeria, Soviet Union, and United States; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.172– 173, 175 (22–23, 28 June  1977), Statements by Belgium, Chile, Soviet Union, and Venezuela; U.N. First Committee, 31st Sess., Verbatim Records, U.N. Docs. A/C.1/31/ PV.9–10 (21 October 1976), Statements by Austria, Ghana, Nepal, and Romania; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Fifteenth Session (3–28 May 1976), U.N. Doc. A/AC.105/171 (28 May 1976), Annex I at 1–4; U.S. Congress, Senate, Committee on Commerce, Science, and Transportation, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, May 1980, 96th Cong., 2d sess., 1980, S. Doc. 59–896 O, 34–35. 11 U.N. COPUOS, Legal Sub-Committee, Summary Records, U.N. Docs. A/AC.105/C.2/ SR.288, 290 (16, 20 March  1978), Statements by Indonesia and Netherlands; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/PV.181, 184–185 (28, 30 June 1978), Statements by Argentina, Canada, Chile, Ecuador, Indonesia, Netherlands, Soviet Union, and Sweden; U.N. COPUOS, Verbatim Records, U.N. Docs. A/AC.105/ PV.190, 192, 195, 197–198, 203 (18–19, 21–22 June, 3 July  1979), Statements by Chairman, Australia, Brazil, Chile, Czechoslovakia, Egypt, India, Italy, Netherlands, Soviet Union, United Kingdom, and United States; U.N. Special Political Committee, Summary Record, U.N. Doc. A/SPC/33/SR.6, 8–12 (16, 18–20 October  1978), Statements by Austria, Bangladesh, Byelorussia, Chile, Czechoslovakia, Egypt, and Indonesia; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Seventeenth Session (13 March–7 April  1978), U.N. Doc. A/ AC.105/218 (13 April 1978), Annex I at 1–9; U.N. COPUOS Legal Sub-Committee, Report of the Legal Sub-Committee on the Work of Its Eighteenth Session (12 March-6 April  1979), U.N. Doc. A/AC.105/240 (10 April  1979), Annex III at 1–3; U.N. COPUOS, Report of the Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/33/20 (7 August 1978), 11; U.N. Special Political Committee, Report of the Special Political Committee, U.N. Doc. A/33/344 (30 October  1978), 1–3; United Nations, General Assembly Resolution 33/16, International Co-Operation in the Peaceful Uses of Outer Space, A/RES/33/16 (17 November 1978); U.S. Congress, Senate, Committee on Commerce, Science, and Transportation, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, May 1980, 96th Cong., 2d sess., 1980, S. Doc. 59–896 O, 36–43.

Epilogue A handshake in heaven

On July 17, 1975, at 4:10 p.m. UTC, astronaut Thomas Stafford aboard an Apollo spacecraft successfully docked with Soyuz 19. A few hours later, while above the French city of Metz – once the border town of another major East-West schism in Europe – Stafford shook hands with cosmonaut Alexei Leonov. This mission, dubbed the Apollo-Soyuz Test Project, had been years in the making. Significant technical obstacles had to be overcome before the mission could proceed. Differences in resources, engineering philosophies, and goals resulted in vastly dissimilar American and Soviet spacecraft that seemed to accentuate their cultural and political distinctions. For example, the Soviets decided to build spacecraft with a cabin pressure equivalent to about one atmosphere with an oxygen/nitrogen composition that mimicked the air. The United States, by contrast, opted for a cabin pressure of about one-third atmosphere with a pure oxygen environment. As a result, the Apollo and Soyuz spacecrafts could not simply dock and open a hatch; the difference in cabin pressure would have blown materials from one spacecraft into the other and potentially caused structural damage. To meet in space, the Soviet Union and the United States had to overcome the fact that they literally breathed different air.1 The Apollo-Soyuz Test Project serves as a useful marker for ends in the Space Race, the Cold War, and the law of outer space. It was the very last “Apollo” mission, though it was not a mission to the moon, and thus the last vestige of President Kennedy’s Space Race challenge. The Test Project also marks the beginning of the end of détente during the Cold War. A crisis in Angola was beginning to sour relations between the Soviet Union and the United States, and the Soviet invasion of Afghanistan in 1979 would firmly end détente. Finally, the Test Project coincidentally followed the adoption of the last successful space treaty, the Registration Convention, at the end of 1974. After the Registration Convention, the COPUOS never generated another widely accepted space treaty. The Space Race, the Cold War, and legal problems in outer space, however, remain with us today in new forms. Companies like SpaceX are generating a new race to commercialize outer space, and NASA at the time of this writing is planning to land astronauts on the moon once more. A new Cold War is heating up in space with the United States establishing a Space Force in December 2019, and Russia testing the first-ever space-based anti-satellite weapon in July 2020. And

Epilogue 195 both these issues – commercialization and disarmament – are once again creating interest in how the law of outer space might be used to regulate international conduct in this environment. As the world turns to a new generation of problems in space, it behooves us to remember the great efforts expended by our forebears to promise equality in the use, exploration, and exploitation of outer space, and to limit outer space’s militarization. That they made these efforts, successfully to a degree, during a time of great divide in the global Cold War conflict and the rivalrous atmosphere of the Space Race is all the more impressive. The responsibility has now passed to a new generation to ensure that we do not undo the efforts of our forebears to save space for peace.

Note 1 Edward Clinton Ezell and Linda Neuman Ezell, The Partnership: A  History of the Apollo-Soyuz Test Project (Mineola, NY: Dover Publications, Inc., 2010), 65, 133.

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210  Bibliography U.N. GAOR. Burma, India and United Arab Republic: Revised Draft Resolution, U.N. Doc. A/C.1/L.224/REV.1 (24 November 1958). U.N. GAOR. Canada and United States of America: Draft Resolution, U.N. Doc. A/C.1/L.320 and Add.1 (29 November 1962). U.N. GAOR. Letter Dated 4 December 1962 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the Chairman of the First Committee, U.N. Doc. A/C.1/879 (4 December 1962). U.N. GAOR. Letter Dated 8 December  1962 from the Representative of the United States of America to the Chairman of the First Committee, U.N. Doc. A/C.1/881 (8 December 1962). U.N. GAOR. Letter Dated 22 August  1963 from the Permanent Representatives of the Union of Soviet Socialist Republics and the United States of America to the United Nations, Addressed to the Secretary-General, U.N. Doc. A/5482 (26 August 1963). U.N. GAOR. Letter Dated 9 May 1966 from the Permanent Representative of the United States of America to the United Nations Addressed to the Secretary-General, U.N. Doc. A/6327 (10 May 1966). U.N. GAOR. Letter Dated 30 May 1966 from the Representative of the Union of Soviet Socialist Republics to the Secretary-General, U.N. Doc. A/6341 (31 May 1966). U.N. GAOR. Letter Dated 16 June 1966 from the Permanent Representative of the Union of Soviet Socialist Republics to the United Nations Addressed to the Secretary-General, U.N. Doc. A/6352 (16 June 1966). U.N. GAOR. Letter Dated 4 October 1966 from the Representative of the Union of Soviet Socialist Republics to the Secretary-General, U.N. Doc. A/6352/Rev.1 (5 October 1966). U.N. GAOR. Union of Soviet Socialist Republics: Draft Resolution, U.N. Doc. A/C.1/L.219 (7 November 1958). U.N. GAOR. Union of Soviet Socialist Republics: Revised Draft Resolution, U.N. Doc. A/C.1/L.219 (18 November 1958). U.N. GAOR. Union of Soviet Socialist Republics: Request for the Inclusion of an Item into the Provisional Agenda of the Twenty-Sixth Session, A/8391 (4 June 1971). U.N. GAOR. Union of Soviet Socialist Republics: Request for the Inclusions of a Supplementary Item in the Agenda of the Twenty-Seventh Session, A/8771 (9 August 1972). U.N. GAOR. United States of America: Request for the Inclusion of an Additional Item in the Agenda of the Twenty-First Session, A/6392 (19 September 1966). U.N. GAOR. USSR Proposal: Declaration of the Basic Principles Governing Activities of States Pertaining the Exploration and Use of Outer Space, U.N. Doc. A/AC.105/C.2/L.1 (6 June 1962). U.N. Special Political Committee. Report of the Special Political Committee, U.N. Doc. A/33/344 (30 October 1978). U.N. Special Political Committee. Summary Record, U.N. Doc. A/SPC/33/SR.6–12 (16– 20 October 1978). United Nations. The United Nations and Disarmament 1945–70. New York: United Nations, 1970, available at www.un.org/disarmament/publications/yearbook/ volume-1945-1970/. United Nations, General Assembly Resolution 174 (II). Statute of the International Law Commission, A/504 (21 November 1947). United Nations, General Assembly Resolution 374 (IV). Recommendation to the International Law Commission to Include the Regime of Territorial Waters in Its List of Topics to Be Given Priority, A/RES/374(IV) (6 December 1949).

Bibliography  211 United Nations, General Assembly Resolution 1148 (XII). Regulation, Limitation and Balanced Reduction of All Armed Forces and Armaments; Conclusion of an International Convention (Treaty) on the Reduction of Armaments and the Prohibition of Atomic, Hydrogen and Other Weapons of Mass Destruction, A/RES/1148(XII) (14 November 1957). United Nations, General Assembly Resolution 1348 (XIII). Question of the Peaceful Use of Outer Space, A/RES/1348(XIII) (13 December 1958). United Nations, General Assembly Resolution 1472 (XIV). International Co-Operation in the Peaceful Uses of Outer Space, A/RES/1472(XIV) (12 December 1959). United Nations, General Assembly Resolution 1649 (XVI). The Urgent Need for a Treaty to Ban Nuclear Weapons Tests Under Effective International Control, A/RES/1649(XVI) (8 November 1961). United Nations, General Assembly Resolution 1721 (XVI). International Co-Operation in the Peaceful Uses of Outer Space, A/RES/1721(XVI) (20 December 1961). United Nations, General Assembly Resolution 1723 (XVI). Question of Disarmament, A/ RES/1722(XVI) (20 December 1961). United Nations, General Assembly Resolution 1802 (XVII). International Co-Operation in the Peaceful Uses of Outer Space, A/RES/1802(XVII) (14 December 1962). United Nations, General Assembly Resolution 1962 (XVIII). Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, A/ RES/1962(XVIII) (13 December 1963). United Nations, General Assembly Resolution 1963 (XVIII). International Co-Operation in the Peaceful Uses of Outer Space, A/RES/1963(XVIII) (13 December 1963). United Nations, General Assembly Resolution 2222 (XXI). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, A/RES/2222(XXI) (19 December 1966). United Nations, General Assembly Resolution 2260 (XXII). Report on the Committee on the Peaceful Uses of Outer Space, A/RES/2260(XXII) (3 November 1967). United Nations, General Assembly Resolution 2340 (XXII). Examination of the Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying the High Seas Beyond the Limits of Present National Jurisdictional, and the Use of Their Resources in the Interests of Mankind, A/ RES/2340(XXII) (8 December 1967). United Nations, General Assembly Resolution 2345 (XXII). Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, A/RES/2345(XXII) (16 December 1967). United Nations, General Assembly Resolution 2601 (XXIV). International Cooperation in the Peaceful Uses of Outer Space, A/RES/2601(XXIV) (16 December 1969). United Nations, General Assembly Resolution 2733 (XXV). International Co-Operation in the Peaceful Uses of Outer Space, A/RES/2733(XXV) (18 December 1970). United Nations, General Assembly Resolution 2749 (XXV). Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction, A/RES/2749 (XXV) (17 December 1970). United Nations, General Assembly Resolution 2777 (XXVI). Convention on International Liability for Damage Caused by Space Objects, A/RES/2777(XXVI) (29 November 1971). United Nations, General Assembly Resolution 2779 (XXVI). Preparation of an International Treaty Concerning the Moon, A/RES/2779(XXVI) (29 November 1971).

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Index

1919 Paris Convention 38 1944 Chicago Convention 13 absolute Liability 39, 150 – 152 ad hoc COPUOS 32 – 39, 41 – 42, 65 – 66, 116, 122, 149, 161; discussions of Legal Subcommittee 37 – 40 airspace 12 – 14, 23, 40, 53, 58; and Definition of see Outer Space, Limit or Definition of Aldrin, Buzz 144 all-up testing 142 – 43 Anders, William 143 Antarctic Treaty 30 – 31, 118 – 20, 127 Antarctica 2, 6 – 7, 30 – 31 Apollo 108, 130, 138, 143 – 45, 161, 194 Apollo 1 130, 138, 143 Apollo 8 143 – 44 Apollo 10 144 Apollo 11 143 – 45 Apollo 13 145 Apollo-Soyuz Test Project 145, 194 Ariel 1 71 arms race: in space 13, 15, 21, 63, 141 Armstrong, Neil 130, 144 – 45 article 19 of U.N. Charter 107 assistance to astronauts 66, 87, 98, 115, 125 see also Rescue and Return assistance to developing nations 90, 92, 181 ASTP see Apollo-Soyuz Test Project Atomic Energy Commission 29 – 30 aviation law 40, 58 Baikonur 21 ban on military use 27 – 31, 34 – 35, 37, 90 – 91, 106, 115, 119 Baruch Plan 29 – 30

basic legal principles 67, 70 – 71, 74, 77, 79, 86, 92 – 93, 95, 106 Belaunde, Victor Andres 58, 86 – 87, 89, 137, 179 Belyayev, Pavel 110 – 11, 194 benefit of all mankind 41, 97, 115, 121 – 22, 175 Beregovoy, Georgiy 143 Berlin Crisis 54 Berkner, Lloyd 1, 5, 78, Blagonravov, Anatoli 71, 73 Blagonravov-Dryden Agreement 77, 145 Bogota Declaration 178 – 79 Borman, Frank 113, 143 – 44 Bush, George H.W. 163 Cape Canaveral 22, 51, 109, 130 Carvalho-Silos, Geraldo de 65 celestial bodies 92; definition of 117; disarmament of 79, 114 – 15, 117 – 21, 125 – 27; economic exploitation of 183 – 86; environmental protection of 88, 123; governance of 38 – 39, 97, 105, 114 – 15, 117, 182 – 83; liability on 151 – 52, 182 – 83; scientific investigation of 92, 125 – 26, 145, 182 Cernan, Eugene 144 Chapman, Sydney 1, 4, 5 Chelomey, Vladimir 142 clustering of rocket engines 18 – 19, 142 Cold War 11, 48, 176, 194 – 95; arms control 79; détente 145, 194; developing nations 137, 175, 177, 185; impact on COPUOS 36, 42, 65, 67, 74, 107, 116, 150; proxy conflicts 55 – 56; relation to International Geophysical Year 5, 34; in space 9, 52, 57, 63, 76, 91, 118; thaw 41

214 Index Code for International Cooperation in the Peaceful Uses of Outer Space 86, 90 – 92, 94 Collins, Michael 144 combustion instability 113, 142 Committee on Contamination by Extraterrestrial Exploration 73 Committee on Space Research 72 – 73, 88, 98, 123, 183 Committee on the Peaceful Uses of Outer Space see COPUOS common heritage 175, 180 – 86 communication satellites 87 – 88, 97, 106, 118, 175 – 78 Congo Crisis 55 – 56, 106 – 07 Conrad, Pete 112 Convention on International Civil Aviation See 1944 Chicago Convention Cooper, Gordon 112 Cooper, John Cobb 13 COPUOS: changing composition 137; discussion of basic legal principles 71 – 74, 77, 79, 86 – 93, 95 – 99; discussion of Liability Convention 149, 159 – 61; discussion of Outer Space Treaty 105 – 08, 114 – 17, 128 – 29; discussion of Registration Convention 161 – 64; discussion of Rescue Agreement 140; founding of 41 – 42, 57, 59, 64; organization of 65 COPUOS Legal Subcommittee 137; deadlock in 70 – 71; discussion of basic legal principles 66 – 67, 79, 86, 93 – 98; discussion of Liability Convention 68 – 69, 150, 156, 159 – 60; discussion of Outer Space Treaty 115 – 118, 120 – 25, 127; discussion of Registration Convention 162 – 63; discussion of Rescue Agreement 68 – 69, 138 – 40; discussion of Moon Agreement 182; failure to convene 107; organization of 65; COPUOS Technical and Scientific Subcommittee 37, 65, 71, 107, 123, 151, 162 – 63 COSPAR See Committee on Space Research Cuban Missile Crisis 63, 74 – 77, 86, 91, 93 customary international law 14 – 15, 22 – 23, 38, 68, 76, 88, 94, 99 Dai Chi Chinei 150 Damage: claim for 39; and indirect damage 154; liability for 40, 68 – 69, 106, 121,

125, 141, 149 – 53, 157 – 60; and nuclear damage 155, 157, 159 Declaration of Basic Principles 97 – 99, 105 – 06, 141, 149; deadlock in negotiations 74; disarmament provisions 96; impact on Outer Space Treaty 115, 121 – 25; impact on Rescue Agreement 138; Soviet proposal 66 – 67, 86 – 90, 93 – 95; United Kingdom proposal 92; United States proposal 92; see also basic legal principles demilitarization of space see militarization of space détente 137, 145 – 46, 194 direct broadcast 159, 176 – 78 disarmament 137, 185, 186; discussions by COPUOS 31 – 35, 37, 72, 87 – 90, 96, 117 – 20, 127, 149; negotiations 11 – 12, 27 – 30, 48, 53, 57, 59 – 60, 63 – 67; nuclear test ban 69 – 70, 74, 76 – 77; in outer space 79, 146, 182; verification of 11 – 12, 29, 34, 64, 69, 77 – 78, 91, 119 – 20. Disarmament Commission 27 – 28, 30 – 31, 33 disclose activities 121, 182 – 83 Dobrynin, Anatoli 79, 128 Dryden, Hugh L. 71 due regard 92, 98 duty to report 118 earth orbital rendezvous 109 Earth Resources Technology Satellite 179 economic assistance to developing nations see assistance to developing nations economic exploitation of space 38, 40 – 41, 92, 97, 175 – 81, 183 – 85, 187 ELDO see European Launcher Development Organization Eighteen-Nation Disarmament Committee 67; establishment of 59 – 60, 63 – 65; nuclear test ban 69 – 70, 73 – 74, 76 – 77, 79; propaganda 87, 96; reconnaissance 89, 94; in space 90 Eisenhower, Dwight 11 – 13, 15 – 17, 21 – 23, 30, 48 – 49, 53, 57 environmental contamination 123, 175 equal conditions 124 – 27 equality of representation 35, 42 ESRO see European Space Research Organization European Launcher Development Organization 89, 123, 157

Index  215 European Space Research Organization 89, 123, 157 experiments in space 66 – 67, 72 – 73; and international consultations 66, 76, 88, 92, 98, 122 – 23; see also noninterference principle Explorer 1 22 – 23 F-1 engine 113, 142 fault-based liability 150 – 52 Fedorenko, Nikolai 114, 128 Feoktistov, Kostantin 110 First Committee 32 – 36, 41 – 42, 76 – 77, 86, 92, 160 – 61 force majeure 152 fractional orbital bombardment system 118 free access 118 – 20, 127 Freedom 7 52 freedom of information 177 – 78 Gagarin, Yuri 51 – 52, 110 Gemini 108 – 13, 138 Gemini I 110 Gemini III 111 – 12 Gemini IV 112 Gemini V 112 Gemini VI 112 – 13 Gemini VII 112 geostationary orbit 178 geosynchronous orbit 175, 178 Glenn, John 63 Goldberg, Arthur 107, 114 – 20, 124 – 29, 137 Gore, Albert 76 – 78, 88, 91 Grissom, Virgil “Gus” 112, 130 Gromyko, Andrei 79, 96, 128 – 29 Group of 77 177 Gutteridge, Joyce 67 Hammarskjold, Dag 55 – 56 harmful contamination 114 – 15, 123, 125 harmful interference 98, 121 – 22 see also noninterference principle human spaceflight 19, 48 – 51, 69, 110 hydrogen bomb 19, 54 ICAO See International Civil Aviation Organization ICBM see intercontinental ballistic missile ICSU See International Council of Scientific Unions IGY See International Geophysical Year ILC see International Law Commission

intelligence: gathering of 12 – 13, 66, 89, 94 – 96, 106, 139, 151 INTELSAT 106, 176 intercontinental ballistic missile 18 – 19, 21, 27 – 29, 48 – 49, 56, 91, 118, 146 interference see noninterference principle International Atomic Development Authority 29 International Civil Aviation Organization 13, 40 International Council of Scientific Unions 3 – 6, 72, 73 International Geophysical Year 4 – 8, 15, 17, 20 – 21, 23, 30 – 32, 34, 35, 38, 88, 89 international governmental organizations See international organizations International Law Commission 38, 65 international organizations 88 – 89, 98, 106, 122 – 25, 157 – 58 international personality 123, 157 International Polar Year 2 – 3, 6 International Polar Year, Second 3 – 4, 6 – 7 international responsibility 92, 97, 123 International Telecommunications Union 40, 175 – 76, 178 Intersputnik 176 ITU see International Telecommunications Union Johnson, Lyndon B. 114 Juno I 22 Jupiter-C Rocket 22 Kennedy, John F. 56, 99; cooperation in space 63 – 64, 95, 105; and Cuban Missile Crisis 74 – 7; and disarmament 48, 53, 57, 79; and nuclear testing 55, 65, 71 – 72, 78; and Space Race 52, 90 – 91, 108, 113, 141 194; Khrushchev, Nikita 39, 41 – 42, 53 – 54, 71 – 72, 75 – 76, 79; support for space exploration 20 – 21, 48 – 49, 52 – 53, 63 – 64 Komarov, Vladimir 110, 138 Korabl-Sputnik 1 49, 74, 149 Korabl-Sputnik 2 49 Korabl-Sputnik 3 50 Korabl-Sputnik 4 51 Korabl-Sputnik 5 51 Korolev, Sergei Pavlovich 18 – 21, 48 – 50, 141 – 42 Lachs, Manfred 65 – 66, 97, 108, 116, 137 Landsat 179

216 Index launching state 124, 139, 150, 152 – 54, 157 – 58, 160 – 63 law of the sea 14 – 15, 23, 38 – 40, 58, 180 – 82, 184 – 85, 187 Leonov, Aleksey 110 – 11, 194 liability 88, 115, 125; and arbitration 98, 156, 158 – 59; on celestial bodies 151 – 52, 182 – 83; and claimant 152 – 53, 155, 157 – 58; and claims commission 160 – 61; and dispute resolution 155 – 58\9; and international organizations 158; elements of claim 152 – 54; need for treaty 38 – 39, 66 – 70, 74, 77, 92 – 93, 98, 106, 138, 149 – 50; relation to Registration Convention 161 – 63; relation to Rescue Agreement 141; standard of liability 150 – 52; types of damages 155, 157 Liability Convention see liability Lie, Trygve 33 local remedies 155 Lodge, Henry Cabot 35 Lovell, James 113, 143 Luna 1 41 Luna 2 36, 41 Luna 3 39, 41, 143 Luna 9 114 Luna 10 114 – 15 Luna-15 144 – 45 lunar orbital rendezvous 109 manned spaceflight 49, 71, 108, 143 see also human spaceflight maritime law see law of the sea marking of space objects 162 – 64 Matsch, Franz 65, 95, 107 McDivitt, James 108, 112 Meeker, Leonard C 57, 67, 70, 79, 95, 114, 137 Mercury 50 – 51, 108, 112 militarization of space 58, 96, 118 – 19, 185, 195 mining: seabed 180 – 82, 184; moon 182, 184 – 85 Mishin, Vasily 142 Moon Agreement 175, 182 – 87 Morozov, Platon 116, 118 – 20, 124, 126 – 28, 140 MR-1 50 – 51 MR-2 52 N-1 141 – 42 NASA 52, 68, 126, 163, 194; and Apollo Program 129 – 30, 141 – 45; assistance

to other nations 41, 120 – 21, 153; cooperation with Soviet Union 77; creation of 48 – 49; and Gemini Program 108 – 13, 138; and Project Mercury 50 – 51 national appropriation see sovereignty, over outer space negligence 39, 150 New Delhi Communique 156 – 58 New International Economic Order 181, 183 New World Information and Communication Order 178 New World Order 175 Nixon, Richard 53, 145 non-aligned nations 90, 95 – 96, 128 non-appropriation 93 see also sovereignty noninterference principle 58 – 59, 63, 70 – 73, 76 – 77, 92, 98, 121 – 23 Nuclear Test Ban Treaty 57, 64, 69 – 70, 74, 76 – 79, 86, 95 – 96, 105 nuclear testing 54 – 57, 63 – 65, 73, 77, 122; and atmospheric tests 54 – 55, 64, 69, 71; and high altitude tests 69 – 71, 73; and moratorium 54 – 55, 64 – 65, 70; nuclear weapons in space 185 Open Skies 12, 13, 21, 34 Operation Dominic 69 outer space: limit or definition of 13 – 14, 66, 150 – 51 outer space experiments 71, 88 see also experiments in space Outer Space Treaty 76, 105, 117, 129, 141, 178; application 145; and disarmament 118 – 19, 126, 137, 146, 149; disclosure provisions 121; and economic exploitation 175, 180; and equal conditions 127 – 28; and international organizations 157 – 58; relation to Declaration of Legal Principles 121 – 25; relation to Liability Convention 151, 153; relation to Moon Agreement 182 – 83; relation to Registration Convention 162; relation to Rescue Agreement 137 – 40 Pardo, Arvid 180 parity 18, 27 – 28, 41 – 42, 146 peaceful purposes 139; and Antarctica 30 – 31; and atomic energy 29 – 30; and celestial bodies 117 – 19, 125, 127, 185;

Index  217 and ocean floor 180; and outer space 15, 35, 72, 88, 90 – 91, 96, 114; Pioneer 4 41 Plimpton, Francis 72, 74 private enterprise 66 – 67, 72, 88 – 89, 92, 94; and supervision of 88 – 89, 94, 97 private entities 88, 92, 97, 106, 176 see also private enterprise Project Corona 23, 53 Project Genetrix 12 Project Orbiter 16 propaganda 17, 20, 29, 52 – 53; and disseminated from space 66 – 67, 72, 87, 94 – 96 R-1 rocket 18 – 19 R-5 rocket 18, 20 R-7 rocket 18 – 21, 29, 141 R-16 rocket 49 – 51 RAND corporation 13, 15 Raseganu, Mihail 65 reciprocity 119 – 20 reconnaissance: airborne 12; banning from outer space 67, 72, 89; satellites 13, 15, 23, 34, 49, 53, 91, 118, 151 Redstone rocket 16 – 17, 20, 22, 50 – 51 Registration Convention 161 – 64, 182, 194 registration of space objects 38, 40, 98, 139, 149, 153, 159 remote sensing 159, 175, 179 – 80 rendezvous 108 – 09, 112 – 13, 138, 143 res communis omnium 38, 87 res extra commercium 38 Rescue Agreement 137 – 38, 140 – 41, 149 – 50, 155 – 58, 161 rescue and return 77, 106, 137 – 139, 141, 149 – 50, 155 – 58, 161; of astronauts 66 – 69, 74, 92, 98, 115, 139 – 40, 145; of space objects 38 – 39, 139 Rice University speech 90 rule of consensus 59, 67, 70, 95, 97, 106 Rusk, Dean 64, 128 Salyut 1 145 Saturn V 108 – 09, 113, 141 – 43 Schirra, Wally 113 Second international Polar Year See International Polar Year, Second secretary-general 33, 55 – 56, 107 – 08, 116, 120, 128, 159, 161 – 63 share information 121, 126 – 27 Shepherd, Alan 52, 161

sovereignty 21 – 22, 124, 126, 156, 158, 177, 179; and over airspace 13 – 15, 151; and over outer space 13 – 15, 21, 23, 58, 93, 98, 114, 145, 178 Soviet Academy of Sciences 5, 20, 39, 71, 77, 145 Soyuz 110 – 11, 138, 142 – 44, 194 Soyuz 1 138, 142 – 43 Soyuz 2 143 Soyuz 3 143 space debris 39, 68, 150, 161 space object: definition of 154; liability for damage 39, 98, 115, 125, 151 – 50, 154, 158 – 60; obligation to return 38 – 39, 98, 106, 138 – 39; registration of 40, 98, 125, 162 – 63; tracking of 129 Space Race 120, 137 – 38, 144 – 45; beginnings of 9, 42, 48, 52; end of 141 – 42, 145 – 46, 194 – 95; reason for Soviet Union’s losing 19, 108, 110 – 11, 113 spacewalk 108, 110 – 12, 121 spillover transmissions 177 – 78 Sputnik 8, 17, 21, 39, 48 – 49, 73, 129, 142; military implications 21, 27 – 28 Sputnik 2 22, 49 Stafford, Thomas 113, 144, 194 Stalin, Joseph 19 – 20 Starfish 70 – 71, 73, 90 State Department 41, 57, 68, 75, 95, 116, 127 – 28, 137 state of registry 98, 153 see also Registration of Space Objects Statement of Agreed Principles 57 Stevenson, Adlai 75, 95, 105 Tereshkova, Valentina 109 territorial claim: over Antarctica see Antarctic Treaty; and over space see Sovereignty, over outer space Third World 87, 116, 121, 137, 139 – 41, 150; as balance in Cold War 56, 58 – 59; concerns for outer space 90 – 91, 106, 176 – 81 Thompson, Llewellyn 79, 128 tracking stations 63, 124 – 29 troika 56 Tyuratam 21, 49 U-2 12, 21, 53, 56, 59, 64, 74 – 75 U-2 Incident 53, 56, 59, 64 U.N. Resolution 1148 (XII) 28 U.N. Resolution 1348 (XIII) 37, 41

218 Index U.N. Resolution 1472 (XIV) 42, 59 U.N. Resolution 1721 (XVI) 23, 60, 66, 68, 86 – 87 U.N. Resolution 1722 (XVI) 60 U.N. Resolution 1802 (XVIII) 93 U.N. Resolution 1884 (XVIII) 79, 96 – 97, 105 – 06, 118, 125 U.N. Resolution 2345 (XXII) 141 UR-700 142 V-2 rockets 7, 17 – 18, Van Allen, James 1, 4, 8 Vanguard rocket 15 – 17, 21 – 22 Vienna Summit 53 – 54, 56 visitation 120, 127 Voice of America 78, 87, 177 Von Braun, Werner 16 – 17, 20, 51 Voskhod 1 110, 121 Voskhod 2 110 – 11, 121 Vostok 49 – 51, 70, 109 – 10

Vostok 1 51 Vostok 3 70, 109 Vostok 4 70, 109 Vostok 5 109 Vostok 6 109 Waldheim, Kurt 107 – 08, 114 – 15 West Ford Project 72 – 73, 122 Weyprecht, Carl 2 White, Edward 108, 112, 130 WMO See World Meteorological Organization Woomera 89 World Meteorological Organization 3 Yegorov, Boris 110 Young, John 112 Zond-5 143 Zorin, Valerian 75