1. Introduction
The defining feature of ‘the commons’,Footnote 1 we are told, is non-excludability – the idea that none can exclude another from access or use.Footnote 2 Free access was the first customary rule of space law,Footnote 3 and the first provision of its primary treaty, the Outer Space Treaty (OST).Footnote 4 More fundamentally, non-exclusion has become central to space law’s disciplinary identity – despite, I will argue, space law’s complex and contradictory relationship with exclusion.
Dominant historiographies of space law remember its first decade as unprecedentedly inclusive and egalitarian. This narrative is often supported by at least one of three key facts. First, the Committee on the Peaceful Uses of Outer Space (COPUOS) was the first permanent United Nations body to formally adopt consensus decision-making.Footnote 5 Second, the OST was the first of four UN space treaties adopted unanimously, all the way from drafting to the General Assembly approval.Footnote 6 Third, the OST was concluded in a context now narrativized as a period of Cold War deadlock,Footnote 7 when, we are told, American and Soviet rivalry all but froze international lawmaking. This invites the implication by comparison that the success of space law was the result of something novel or progressive about its making.Footnote 8 By separating these facts from their contexts, space lawyers reinforce a pervasive ‘myth of inclusivity’ in the historiography of our field.
This article contests this myth by re-examining the historical record. It aims to understand how exclusion limited the Third World’s ability to meaningfully participate in space lawmaking from 1957 to 1967. This was a critical decade in the history of space law, including the launch of the first artificial satellite in October 1957, the creation of COPUOS in 1959 (in ad hoc form) and 1961, and the drafting of the 1963 Principles Declaration and 1967 Outer Space Treaty.Footnote 9 For ease of reference, I will use ‘Space Debates’ to refer to the various UN fora in which space law was discussed during this period, including COPUOS and its Legal Subcommittee (LSC), the UNGA and its First Committee (UNGA(1st)), and records of informal or private meetings where relevant. This necessarily limited scope excludes developments in space law after 1967, namely four subsequent UN space treaties,Footnote 10 over 300 bi- and plurilateral space agreements,Footnote 11 and various customary rules.
I make three arguments. First, contrary to widespread belief among space lawyers today, exclusion was fundamental to the making of international space law. Second, during space law’s first decade, certain Powers adapted and refined exclusionary tactics to maintain control over the multilateral process by preventing or silencing Third World opposition. And third, that this underemphasized period of international legal history wrought lasting, and so far underexamined, impacts how international law is made.
This article builds upon recent critical literature on the history and theory of commons lawmaking. This scholarship broadly questions the extent to which international legal governance of the global commons keeps the promises implied by ‘global’ and ‘common’. Surabhi Ranganathan’s prolific work addresses the commons as mode of extraction, examining the logic of capital and resource exploitation that motivated the historical-legal creation of the seas as common heritage.Footnote 12 Cait Storr applies this argumentation to space,Footnote 13 and further frames the commons as what could be called a mode of expansion, wherein certain states worked to secure jurisdictional continuity and territorial expansion even at the height of decolonization, using logics and tactics learned from UN trusteeship regimes.Footnote 14 In this article, I hope to add a procedural prologue to these substantive analyses. I contend that the commons can also be understood as a mode of exclusion, and that exclusion was a critical condition that made this exploitation and expansion possible.
International legal scholarship tends to treat the seas as the ‘default’ commons for analytical and doctrinal purposes.Footnote 15 This may seem intuitive. The seas feel more proximate, familiar, and tangible than space,Footnote 16 and its law certainly offers more to read and analyze. But beginning the story of commons lawmaking in its third act limits a holistic understanding of the process in historical context. Also, whatever conclusions arise from those analyses may not hold true for space, which only exacerbates the rampant conceptual ambiguities around ‘the commons’ within international legal scholarship.Footnote 17 To disrupt this trend, I purposefully orient my focus a decade prior to most literature, and toward the undertold history of space lawmaking instead.
Nearly all of the primary sources cited below were gathered using an open-source method, and are freely available online. My approach was originally a product of limited institutional access, no funding, and only late, confirmatory access to physical archives over the pandemic. Over time, it evolved organically into what Hodder and Beckingham call a ‘recombinant’ history.Footnote 18 Primary sources were gathered from many archives: the UN official record,Footnote 19 and digitized records from 18 diplomatic archives within the UN,Footnote 20 United States (US),Footnote 21 United Kingdom (UK),Footnote 22 Canada,Footnote 23 Australia,Footnote 24 and India.Footnote 25 This breadth helped to mitigate potential biases introduced by retention, declassification, and digitalization – all processes driven by the decisions and accidents of people, working in institutional contexts,Footnote 26 with ‘power involved at all levels’.Footnote 27 Recombinant histories can be powerful means to reveal connections, trends, and solidarities among sources contained in disparate archives.Footnote 28 By collecting piecemeal sources and connecting them into constellations of meaning and context, I hope to render the absences and silences of the archive – what Sarah Mills calls its ‘fragments’ and ‘ghosts’Footnote 29 – newly visible.Footnote 30 In this way, recombinant histories align well with anticolonial efforts to understand and repair Third World erasure, past and present.Footnote 31
This article is profoundly influenced by work from critical literature, particularly Third World Approaches to International Law (TWAIL). TWAIL and related critical scholarship is core to this article’s analysis – as Chimni argues, ‘a verdict on the historical record of international organizations on the question of ‘inclusion and exclusion’ depends on the theoretical lens used for evaluation’.Footnote 32 But I am uncomfortable calling this article TWAIL. It was written by a White author from the Global North, published in a European journal, based largely on Global North archives, using a methodology that privileges Global North sources, and its history primarily centres Global North actors. There is a long and ongoing history of academics who look like me conflating scholarship about the Third World with scholarship from the Third World.Footnote 33 My Northern gaze is not a Third World approach, and I have what Naz Modirzadeh describes as a responsibility ‘to be extremely clear about who I am and who I am not, what I can speak for and what I cannot … a responsibility to be mindful about how I use the first-person plural and to be conscious that I benefit from using it too loosely’.Footnote 34 I certainly share TWAIL’s anticolonial and antiracist objectives, and I hope TWAIL scholars will find this article relevant, but it sits more comfortably as a critical legal history. In order to responsibly contribute to this stream of critique, I have consciously quoted Third World actors as possible, including names and contexts where I can, and I have used the first person to position myself and my argument.
This article explores the mechanisms by which exclusion, particularly racial and colonial exclusion, affected the first decade of space lawmaking, and especially the 1963 Principles Declaration and 1967 OST. I will consider this lawmaking process in four stages – membership (the formal ability to participate), attendance (the ability to effectively participate), decision-making (the ability to influence the lawmaking process), and drafting (the capacity to influence the results of that lawmaking process).
1.1. Theorizing exclusion
This article contends that exclusion played an important and underappreciated role in the making of space law. I do not contend that this period of space lawmaking was uniquely exclusive, either by historic or current standards. Exclusion is part of ‘the primordial and essential history of international law’,Footnote 35 as affirmed by a growing scholarship of exclusion in international law.Footnote 36 But understanding the exclusive mechanisms at work in space lawmaking matters to space and generalist international lawyers. It contests space law’s pervasive disciplinary myth of inclusivity, and it provides generalists with a microhistory of strategies the Powers used to maintain asymmetrical influence over international law(making), even as their empires fell.
Foucault understood exclusion as a process by which ‘the production of discourse is at once controlled, selected, organised and redistributed … to ward off its powers and dangers, to gain mastery over its chance events, to evade its ponderous, formidable materiality’.Footnote 37 ‘Questions of inclusion and exclusion are not simply about who is inside or outside,’ writes E. Tendayi Achiume, ‘but they are quite centrally about the very nature of “inside” and “outside”; who determines what is designated “inside” or “outside”; and how “inside” and “outside” have been created and tailored to serve and benefit some and not others’.Footnote 38 Both read exclusion as an exercise of control, rendered most visible through the ‘definable … instances of power responsible’ for it.Footnote 39
But exclusion is not always an act done by Power against Other, and it is not necessarily resolved by inclusion alone. This is because exclusion and inclusion are not quite opposites; they co-constitute each other. This dynamic relationship of exclusion–inclusion rests upon two presumptions – that the (colonized and racialized) Other was fundamentally different, and that one limited and contingent international (legal) worldview was fundamentally universal.Footnote 40 This resulted in a conditional engagement with the Other that, per Adom Getachew, ‘granted… personality in order to be bound’,Footnote 41 empowering the Third World with ‘the right only to dispossess of themselves’.Footnote 42
To paraphrase Lora Anne Viola, the UN did not become less exclusive by bringing more chairs into the room.Footnote 43 Instead, ‘inclusiveness undermine[d] the essence of membership – the exclusive monopoly on certain privileges and resources – prompting insiders to preserve the exclusivity of their group by imposing new inequalities’.Footnote 44 Powers responded to pressure to include new actors by adapting their tactics, to retain control over the multilateral process and its outcomes.Footnote 45 They learned subtler forms of exclusion, like what Achiume calls ‘subordinate inclusion, privileged exclusion and marginalization upon inclusion’.Footnote 46
For decade, international lawyers have argued exclusion qualifies words like ‘universal’.Footnote 47 Still, space law’s myth of inclusivity persists. The solution is clearly not to adduce further evidence to what Denise Ferreira da Silva calls the ‘socio-logical archive’ of racial and colonial exclusions.Footnote 48 Rather, we must better understand the mechanisms by which exclusion enables words like ‘universal’ – as well as ‘global’ and ‘common’ – to function to protect the interests of Whiteness, empire, and capital.Footnote 49
For Chimni, Third World exclusion–inclusion from international organizations has two disadvantages: limiting effective participation, and unfair distributive outcomes.Footnote 50 Viola also sees it as a procedural and distributive justice issue: preventing contributions to an international institution also prevents equal access to resulting benefits.Footnote 51 Exclusion from lawmaking cannot be separated from the law made – law which is now the core of space governance. This is why Ranganathan’s and Storr’s work matters – it shows the grievous distributive injustices possible despite and because of the language of the ‘commons’.Footnote 52 As Anghie and Chimni write, ‘approaches to international law that fail to take into account its violent origins might preclude an understanding of the continuing complicity between international law and violence and in this way, simply perpetuate a “violence that thinks of itself as kindness”’.Footnote 53 Without context, histories of exclusion tend to produce exclusionary histories – and render us complicit, too.
The complex dynamics of inclusion and exclusion cannot be fully assessed from an invitation list, or by counting the actors in a room.Footnote 54 Viola distinguishes between ‘formal rights of participation, determined by recognition of standing and formal representation’ and ‘procedural rights, characterized by (un)equal voice opportunities in institutional decision-making processes’.Footnote 55 This article’s structure expands this distinction by dividing formal participation into ‘membership’ and ‘attendance’, and procedural rights into ‘decision-making’ and ‘drafting’.
1.2. Choice of frame
Studying international lawmaking through the case study of space offers more than novelty. COPUOS was unusual among lawmaking bodies of its time, in at least two ways. First, its members were state representatives. The International Law Commission (ILC), by contrast, consisted of private individuals ‘of recognized competence in international law’.Footnote 56 ‘Competence’ was not a neutral metric, after decades of colonial policy restricting law schools to imperial metropoles, far from the colonized.Footnote 57 Between 1956 and 1962, what UNESCO called ‘Middle Africa’ had less than ten law programmes, 100 full-time law instructors, and 2,500 law students, including 300 abroad.Footnote 58 Decades after independence, to be recognized as ‘competent’ required excellence – and often, privilege, capital, and assimilation. Even then, their inclusion was limited and fragile. In 1962, President Henri Rolin of the Institut de Droit International lamented the admission of ‘new States whose representatives are often without any legal knowledge at all’, but pledged to ‘reserve every year a proportion of the new [non-voting] seats for jurists of the new countries … even if they could not be recommended for election on the basis of their scientific production’.Footnote 59 Even Third World lawyers invited to the ILC’s proverbial table could still find their work sidelined and forgotten by the orthodox canon.Footnote 60 ‘State representatives’, while still an exclusive group,Footnote 61 at least allowed the possibility of a more inclusive room.
Second, COPUOS was very well-recorded, and these records are now remarkably accessible. This is surprising because the UN Secretariat spent the 1960s slowly buckling under financial and administrative crises.Footnote 62 Despite a Department of Conference Services in near-perpetual meltdown, COPUOS was one of just seven active UN bodies allowed to keep verbatim records by 1967.Footnote 63 This record is now among the best-digitized of the 1960s UN, even more so than the UNGA and Security Council.Footnote 64 Moreover, many participants, including the US, UK, and Australia, considered space and its law to concern intelligence and defence, as well as foreign policy.Footnote 65 As a result, internal communications about COPUOS tended to be thorough, detailed, and sent to multiple offices, with summaries of informal hallway discussions, reports of secret meetings, and verbatim transcripts of important speeches. Many of these records have also been kept, declassified, and digitized, offering a uniquely detailed view of space lawmaking.
Space law is an underappreciated case study for international lawmaking. Though born in a world of fear and tension, space has always been a vector for hope. It is a field of law that engages the interests of humanity as a whole, and one that inspires a dual sense of possibility and progress.Footnote 66 Everyone involved in space lawmaking had motivations that went beyond space itself, and so its lawmaking served as microcosm for the international community. As Sierra Leonean Ambassador Gershon Collier said in his first COPUOS speech, ‘it will be the duty of this Committee to demonstrate fully to all mankind the extent to which international co-operation can be expanded to include all nations and achieve true universality’.Footnote 67 Space also acted like a legal laboratory, where international law(making) could be studied in a closed, entirely international environment. But then and now, space law often weighs the voices of spacefaring states more heavily than the rest,Footnote 68 which effects a silencing. By unveiling the history of exclusion that made space law possible, this article hopes to begin conversations about how international (space) law should be interpreted today.
2. Membership
This section asks who was invited to formally participate in space lawmaking. COPUOS hardly enlarged in space law’s first two decades. Washington and Moscow negotiated its membership list in late 1958, added six new members in 1959, and then four more in December 1961. But COPUOS’ first expansion under the banner of equitable representation was in 1974, after three UN space treaties were concluded and a fourth was all but finished. These initial members, especially those able to control membership, had immense control over the substance of space law.
The same December 1958 UNGA resolution that established the Ad Hoc COPUOS also listed the 18 states that would be members.Footnote 69 This list resulted from months of backchannel discussions between the US, USSR, and their close allies from at least mid-August.Footnote 70 The Ad Hoc COPUOS and its Legal and Technical Committees dissolved in August 1959,Footnote 71 but were replaced by a permanent COPUOS of 24 states in December.Footnote 72 COPUOS grew again to 28 members in December 1961, who also became members of its new Legal and Scientific and Technical Subcommittees.Footnote 73
A number of contextual factors influenced this selection process. First, the Powers had to move quickly. As the Space Age moved from punchline to phenomenon, space governance moved from academia,Footnote 74 to civil society,Footnote 75 to popular discourse.Footnote 76 In 1956, the Legal Commission of the International Civil Aviation Organization (ICAO) hesitantly posited itself as the competent body to discuss and regulate space in the future.Footnote 77 Washington, worried the International Civil Aviation Organisation would ‘civilianise’ space, and risk its spy satellite programmes,Footnote 78 persuaded new ICAO President Walter Binaghi to remove space from its agenda for the foreseeable future.Footnote 79 But not even hegemony could hold back the tide, especially after the Soviet satellite Sputnik orbited Earth on 4 October 1957. Throughout 1958, UN Secretary-General Dag Hammarskjöld called on states to ban sovereignty and ‘colonisation’ in space.Footnote 80 The UK especially opposed Hammarskjöld’s idea, worried that discussing space law in the UNGA could lead not only to ‘a declaration forbidding the “colonization” of celestial bodies’, but ‘sweeping legal propositions’ against colonisation in general.Footnote 81
The United States had learned two crucial lessons from recent commons lawmaking processes that it applied when devising the Ad Hoc COPUOS. The first was that it was easier to manage the process than prevent it entirely. In 1956, India attempted to add Antarctica to the UNGA agenda, and though Western states persuaded it to retract the proposal,Footnote 82 it forced them to begin informal treaty negotiations two years later.Footnote 83 The Powers, especially the US and Soviet Union, did not want to be similarly pre-empted for space, a realm with much more significant national security implications.Footnote 84 As a UK Commonwealth Relations Officer wrote, ‘these problems will have to be ventilated sooner or later and a start may as well be made in the ad hoc committee’.Footnote 85
The second lesson was the value of a carefully chosen forum. The first UN Conference on the Law of the Sea (UNCLOS I) in 1958 had been a rushed, resource-intensive, and chaotic summit of 90 states, and difficult to manage or constrain. Meanwhile, the Antarctic Treaty was negotiated outside of UN auspices, initially among a small group of mostly White, all-male state representatives,Footnote 86 who met in secret from autumn 1958, and explicitly sought to protect their legal rights but limit the world’s. That process was not replicable in a decolonising UN.
Bringing space law to the UN had two advantages. First, it enabled the US to exclude Communist China, which was not a UN member.Footnote 87 Second, it put a veneer of internationalism over the process. As State Department official Richard Gardner told his British counterpart, ‘the US would like the exploit the possibilities of space … primarily with other western powers. But in order to shield this exercise from partisan attack by the Russians and/or the neutrals, they would like to legitimize it by bringing it under the UN umbrella.’Footnote 88 The Powers, and especially the United States, understood symbolic inclusion as a powerful means to control the process and outcome. From 1960, the US State Department instructed delegates to ‘give a sense of meaningful participation to a number of countries which might otherwise be standing on the sidelines in frustration and growing hostility’.Footnote 89 ‘Once the protective mantle of the international community is thrown over a project,’ wrote Assistant Secretary of State Harlan Cleveland in 1963, ‘symbolism and terminology can reinforce the desired impression’.Footnote 90
In June 1958, the US opted for an ad hoc UN committee, with a carefully limited size and mandate.Footnote 91 From the beginning, space law was made according to a logic of exclusion that prevented open discourse in representative fora.
2.1. Selection criteria
In the first decade of COPUOS, membership was ostensibly based on ‘scientific capacity’, as the US,Footnote 92 Canada,Footnote 93 the United Kingdom,Footnote 94 and Australia claimed.Footnote 95 They sometimes described the criterion as ‘participation in the International Geophysical Year’,Footnote 96 a multinational cooperative science initiative organized by the International Council of Scientific Unions in 1957–58. But 80% of UN member states had been ‘IGY participants’;Footnote 97 the US and its allies seem to have used IGY participation as euphemism for a more subjective evaluation of national scientific merit. Sometimes this was explicitly discussed, for instance when Australia explained that ‘countries were chosen partly in order to give geographical representation, but very much with the possible contributions that the individual countries might make to work in the field of outer space’.Footnote 98
Scientific capacity is a classic standard of civilization,Footnote 99 which functioned according to the two parallel logics of biology and improvement.Footnote 100 The first demanded markers of capacity to ‘demonstrate’ aptitude in specific (colonial and modernist) ways of knowing science.Footnote 101 The second required genuflecting to the modernist project of space expansion. Some states could become partners; others could become mining camps, launchpads, or hosts to tracking stations. For the United States and ‘Old Commonwealth’, scientific capacity became a metonym for Whiteness and likeness – excluding racialized, colonized, and pre-modern peoples was a feature, not a bug. Had ‘science’ been the point, the Powers could have recognized millennia of astronomic knowledge among Indigenous and Aboriginal peoples,Footnote 102 or the commons management expertise across thousands of African and Indigenous jurisdictions.Footnote 103 Instead, these and other epistemologies were excluded, to universal detriment.
As it was, those deemed scientifically incapable of debating space law were encouraged, and encouraged each other, to ‘participate’ in the Space Age with their land and resources.Footnote 104 As Tzouvala argues, inclusion-exclusion motivated participation in, not subversion of, the entwined projects of modernity, capitalism, and coloniality.Footnote 105 In practice, scientific capacity privileged majority-White, wealthy, Powerful states, and involved the rest as tokens:
The Canadians… favoured a Committee of 9 with emphasis on scientific accomplishments rather than geographical balance. Six countries pre-eminent in this field were the United States, United Kingdom, USSR, France, Canada, Australia and these should be automatically included. To avoid having any important area without representation one Latin, one Asian and one East European should be added.Footnote 106
The second selection factor was political affiliation. The Soviet Union insisted that COPUOS membership respect ‘parity’ – an artificial balance to ensure they, the first spacefaring nation, would not be outvoted. The US objection triggered an impasse from August to December 1958. Washington proposed members from the ‘Old Commonwealth’ (UK, Canada, Australia) and NATO (France, Belgium, Italy) – both, in my reading of these and other sources, also metonyms for Whiteness. The USSR nominated its allies (Czechoslovakia, Poland, UAR).Footnote 107 The US allowed Latin America to nominate three members amongst themselves (Mexico, Brazil, and Argentina), though Argentina’s requests for more equitable Third World representation went ignored.Footnote 108 Asia, Africa, and Oceania were not consulted.Footnote 109 A month before the Committee’s creation, the ‘new Commonwealth’ (India, Pakistan, Sri Lanka, Ghana, and Malaysia) were still unaware negotiations were occurring.Footnote 110 Ultimately, Soviet dissatisfaction with the Committee’s composition caused the Eastern Bloc to boycott the Committee, and India and Egypt to remain absent to avoid appearing partisan.Footnote 111 This boycott continued until 1962, and in the meantime showed Washington the power of exclusionary lawmaking.Footnote 112
2.2. The first expansion
COPUOS became a permanent committee in 1959,Footnote 113 and again the Powers spent the autumn negotiating candidates. This time, the candidate list was longer: Yugoslavia,Footnote 114 Ireland, Jordan, Malaya, Tunisia,Footnote 115 Iraq, Indonesia, Finland, and AfghanistanFootnote 116 were each cut when the Powers agreed to keep the Committee small and manageable.Footnote 117 The final list of new members featured four Soviet allies (Albania, Bulgaria, Hungary, and Romania) and two Non-Aligned states (Austria, Lebanon). During this selection, scientific capacity and geography were supplemented by a new, informal criterion: which China a candidate favoured in November 1959. The US only supported candidates that had voted to block the People’s Republic of China from replacing Taiwan as a UN member, and the USSR only supported the reverse.Footnote 118 This effectively excluded states that interpreted Chinese representation as a self-determination issue, as many former colonies did.Footnote 119 And once again, no majority-Black state was even proposed.
2.3. The second expansion
In December 1961, the UNGA added Chad, Morocco, and Sierra Leone to COPUOS. The Powers, especially the US, initially resisted. Expanding the Committee was a ‘politically charged’ issue that Washington preferred to avoid.Footnote 120 NASA operated three satellite tracking stations in Apartheid South Africa,Footnote 121 and was scouting the Azores for another.Footnote 122 South Africa and Portugal both wanted to join COPUOS,Footnote 123 but both were being widely condemned for perpetrating horrific atrocities on African peoples. The US knew their space facilities depended upon keeping these relationships quiet.Footnote 124 An open UNGA discussion on Committee membership risked those agreements and could expose American support for colonial regimes.
Moreover, the Powers knew that a decolonizing world would soon refuse to accept COPUOS membership on the basis they had set out previously – an opaque assessment of scientific capacity, ‘with some eye to geographical representation’.Footnote 125 COPUOS had to expand, but in a controlled manner, keeping floodgates firmly closed. Even as they spoke in favour of expansion on the UNGA floor, senior figures within the American, British, and Australian governments varied from reluctant to vehemently against a larger COPUOS.Footnote 126 Donald Gibson of the UK Foreign Office instructed UK delegates to ‘get rid of the “African addition” point at once’,Footnote 127 then later complained that Washington had not ‘taken their advice on the 2 “black African additions”’ to COPUOS.Footnote 128
However, that December, the UNGA added Morocco, Chad, Sierra Leone, and Mongolia to COPUOS, in ‘recognition of the increased membership of the United Nations’.Footnote 129 This list was made through tumultuous secret negotiations in the final weeks of a marathon UNGA. Potential candidates included Guinea,Footnote 130 Sudan,Footnote 131 Tunisia, Ethiopia, Senegal, Nigeria, and Ghana.Footnote 132 By 29 November, this had become ‘Nigeria and (a French African)’, which then expanded again to three African states, plus the Soviet-aligned Mongolia.Footnote 133
The frantic pace of negotiations prevented even the Powers from updating their governments, receiving up-to-date instructions, or fully consulting anyone but their close allies.Footnote 134 Instead, they delegated. France consulted the Francophone African states, which reportedly selected Chad,Footnote 135 ‘one of the states most dependent on continued French economic and military subsidies’.Footnote 136 Meanwhile, Nigeria was ‘enthusiastic about joining’, and initially had both US and Soviet support.Footnote 137 However, Britain, which was at that time also secretly collaborating with Nigeria to sabotage their bilateral Defence Agreement,Footnote 138 asked Washington to liaise with them instead. The US, which had a vital space tracking station in Kano, agreed.Footnote 139 Moscow presumably caught wind, and vetoed Nigeria less than 36 hours before the vote.Footnote 140 Nigeria had to be swapped for Sierra Leone by hand on the already printed draft resolutions.Footnote 141 The third new African member slot had been tentatively slated for Ghana. But Britain’s hesitance to approach African states meant Accra was only consulted about joining COPUOS hours before the First Committee vote – and Accra declined.Footnote 142 Ghana was replaced by Morocco,Footnote 143 just weeks after Rabat made ‘disquieting’ threats to expel American military bases, a situation that Washington was still working to smooth over.Footnote 144
All three African members invited in 1961 had close and dependent relationships with friendly empires, which Washington explicitly understood ‘as a means of maintaining a degree of influence’ over the Committee.Footnote 145 By including a few Third World states, the Powers could prevent the rest from discussing space in the UNGA.
COPUOS did not expand again until 1974, after most of space law was written.Footnote 146 The uninvited world, and especially Third World and Non-Aligned states, discussed space elsewhere. Many states discussed space in the UNGA and its First Committee, including Cuba,Footnote 147 Haiti,Footnote 148 El Salvador,Footnote 149 Indonesia,Footnote 150 Colombia,Footnote 151 and Venezuela,Footnote 152 or at Third World and Non-Aligned conferences, like Belgrade in 1961,Footnote 153 and Cairo in 1964.Footnote 154 These speeches now constitute state practice, but they have never been framed as such.Footnote 155
3. Attendance
The second question is attendance: who was actually present and able to contribute to space lawmaking? To my knowledge, space law literature has never directly addressed this question. In general, international legal scholars tend to treat membership lists as roll calls – but in this case, the distinction matters. COPUOS decided by consensus, but the chair’s precise words were ‘unless I hear any objection’.Footnote 156 In a committee that created world-changing law essentially by ‘speak now or forever hold your peace’, the question is not who was invited, but who was actually in the room, with sufficient resources and preparation to speak.
3.1. Keeping schedules unpredictable
The first informal barrier to attendance was the unpredictability of meetings. In total, between 1959 and the OST’s conclusion in December 1966, the (Ad Hoc) COPUOS and Legal Subcommittee met 186 times in New York and Geneva.Footnote 157 The COPUOS meeting schedule was mostly set by Washington and Moscow in bilateral negotiations, which left the predictability of COPUOS meetings dependent upon the temperature of US–Soviet relations. This was particularly the case in the final negotiations of the Principles Declaration and OST, in the latter halves of 1963 and 1966 respectively. A meeting might only be announced a few weeks in advance, or move between New York and Geneva on similar notice.Footnote 158 COPUOS and its Subcommittees regularly violated UNGA resolutions banning unscheduled meetings,Footnote 159 until COPUOS was made a special exception in 1966.Footnote 160 In January 1965, U Thant noted that neither COPUOS Subcommittee had confirmed their 1965 venues, and pointedly estimated that hosting both sessions in New York would save the UN an estimated $63,000, or about $625,000 in 2024.Footnote 161 Later in 1971, the Joint Inspection Unit explicitly criticized the ‘additional confusion and expenditure’ that had been caused by ‘the tendency of many subsidiary bodies [like COPUOS] (or of the additional bodies created by them) to change, often at the last minute, the dates and sometimes even the place of their sessions’.Footnote 162
For the US and Soviet Union, whether a session was held in New York or Geneva was a matter of geopolitical symbolism. For basically everyone else in the room, the choice had concrete consequences. The clearest impacts were on the UN itself. The LSC met in Geneva in May-June 1962, March 1964, and July–August 1966, and the S&TSC met in Geneva from 1962–1964 and 1966. By 1962, the Palais de Nations was overdue for renovation, and could barely accommodate the exponential increase in UN meetings as it was. There was no delegate lounge, limited office or overflow space, and many conference rooms lacked air conditioning or interpretation equipment.Footnote 163 Moving a meeting to Geneva required hiring dozens of short-term contract staff – interpreters, translators, precis-writers, stenographers, and documentation staff. This had noticeable impacts on the Committee’s work – Australia recounted that in the 1962 session,
the work of the Sub-Committees did suffer from the lack of conference services and facilities in Geneva … Last year’s records came extremely late, and they did not come in all languages. Special interpreters had to be hired who were not as good at their job as the interpreters here in the United Nations in New York… some delegations have no office in Geneva; they have no ready means of getting secretarial help, of having somewhere to work, of communicating with their own capitals.Footnote 164
Many members sent their Permanent Representatives to COPUOS, because that is what the US and USSR did. But the Third World states could not mimic the cadre of experts the Space Powers sent as support – and at least for Chad and Sierra Leone, their Permanent Representative was already doing double duty as Ambassador to the US.Footnote 165 In 1962, Ambassador Adam Malick Sow represented Chad in Washington, but also to the UNGA’s Fourth Committee, COPUOS, and both its Subcommittees.Footnote 166 This meant that in June 1962, weeks before the 22nd UNGA, Ambassador Sow found himself in Geneva amongst a roomful of astrophysicists, as Chad’s sole representative to the Scientific and Technical Subcommittee.Footnote 167 Sow ultimately departed the session two weeks early for UNGA preparations, leaving Chad unrepresented. ‘He expressed interest [in] being kept generally informed re[garding] space meetings,’the American representative reported, wryly noting Sow’s ‘valiant effort’ to follow the meetings.Footnote 168
Third World delegations also often lacked expert and administrative support. The Washington and New York rental housing markets were extremely segregated, which directly constrained the number of embassy support staff majority-Black countries could maintain.Footnote 169 In the 1960s, requesting additional support from home involved several flights over days, via travel infrastructure that poorly connected the Third World – and the UN did not fund delegate travel to COPUOS meetings.Footnote 170
Meetings on short notice, without requisite preparation or support, and involving travel from Washington to New York or Geneva, had material costs for Third World participants in particular.Footnote 171 In 1963, the question of whether to hold the Subcommittees in New York or Geneva became a painful three-week impasse that almost ended COPUOS consensus in its first year. Many delegations expressed views, including Australia’s above review of the conference facilities. But Gershon Collier of Sierra Leone had more practical reasoning:
for a country like mine, with a small delegation and limited resources, there are difficulties either way, particularly on the financial level. There are also difficulties of personnel …. we have something to lose either way, and yet we are prepared to go along with the majority view.Footnote 172
Collier left these ‘personnel’ difficulties ambiguous, but in context, he was likely referring to the competing risks and costs of bringing staff to Geneva and the constraints of segregation, including on staff housing and their safety en route. Because the US and Soviet Union escalated the venue question to a Cold War political issue, the rest of COPUOS – including delegations with tangible stakes – had to compromise. This resulted in Legal Subcommittee sessions that oscillated back and forth, sometimes mid-year and last-minute.
To illustrate the point, on 17 June 1966, the US and Soviet Union bilaterally agreed to hold the next Legal Subcommittee meeting in Geneva, three weeks later – just a month before the General Assembly – and tasked COPUOS Chair Kurt Waldheim ‘to work this out with other members of Committee’.Footnote 173 Two months later, the US and Soviet Union had Waldheim reschedule an impending COPUOS session less than two weeks beforehand, and replace it with a Legal Subcommittee meeting.Footnote 174 In both cases, a secret bilateral agreement was presented as a UN decision, leaving Third World COPUOS members without adequate preparation time. Even trying to prepare would divert critical foreign ministry resources from UNGA preparation. Instead, their choice was between funding their attendance (without notice, support, or preparation), reassigning embassy staff (if available), or missing some or all of the session.
3.2. Keeping debate technical
This lack of expert support was compounded by the Powers’ deliberate technification of debate. From COPUOS’ first meeting, the US and its allies consciously emphasized the complex aspects of COPUOS’ mandate. This had four main effects. First, it prevented discussion of so-called ‘political’ topics like coloniality, disarmament, and environmentalism.Footnote 175 Second, busying debate with minutiae limited the chance that broad and binding rules might inconveniently restrict the Powers’ interests. Third, it excluded participants without advanced scientific education or expert support. And fourth, it often forced said delegates to rely on pre-meeting briefings from the Powers and their allies.Footnote 176 Each disproportionately impacted Third World representatives.
In 1962, the State Department instructed its delegates to the first full COPUOS meeting to ‘get through Committee meetings with minimum fuss’ by ‘starting [the] Committee on 10 Sept when pressure of [the] impending GA will work to our advantage by reducing time for debate’.Footnote 177 They placed the Scientific and Technical Subcommittee report first on the agenda, then told the US delegation ‘to extend the time devoted to consideration of the Technical Subcommittee report in order to reduce the time available at this meeting for any substantive consideration of legal matters’.Footnote 178
Decades later, prominent space lawyer Karl-Heinz Böckstiegel evaluated the technification tactic: ‘perhaps, for the development of space law in general, it was a good thing that in the early days states and their representatives seemed not so much aware of the political, military and economic interests involved in space activities’, he said. ‘Otherwise, the Outer Space Treaty at least would probably not have been so successful in achieving its wide scope of applicability or in being ratified by all major space states.’Footnote 179 This view is fairly common in space law, but it warrants unpacking. On one level, Böckstiegel is right; COPUOS produced many more binding treaties before it expanded its membership to include the Third World than it did after. But he is also tacitly admitting that space lawmaking was always a political, military, and economic project, and that excluding certain actors was always a way to prevent those dimensions from being discussed. For Böckstiegel, the ends justify the means; we now have a space treaty so widely ratified as to be functionally universal. But the internal tensions of making ‘universal’ law by exclusive processes have never been resolved, and the political, military, and economic dimensions of space law remain active problems to this day.
3.3. The impacts of segregation
The third informal barrier to attendance was social. Between 1959 and 1966, COPUOS and its Subcommittees held about half of their meetings in New York, and half in Geneva.Footnote 180 This too was a political compromise. The US and allies preferred New York because it was cheaper (for them), and because it provided geographic and symbolic distance from the Disarmament Committee in Geneva.Footnote 181 The Soviet Bloc and continental European states preferred Geneva, for similar reasons.Footnote 182 Meanwhile, for non-White and especially Black delegates, both venues were problematic. Geneva entailed expensive travel and limited local support – but New York, like much of the US, was racially segregated.
American racism affected nearly every facet of life for diplomats of colour, and especially Black diplomats, whether they lived in Washington, DC or New York City. One of its impacts was to limit staff capacity of majority-Black delegations and embassies. They struggled to access housing; in 1961, only 5 per cent of available Washington rentals would rent to them.Footnote 183 They could not ensure schooling for their children, reliably get a haircut,Footnote 184 or rely on police protection, as Guinean Deputy Chief of Mission Michel Collet found in August 1961, when reporting a fender bender resulted in his brutal beating and arrest by responding New York police officers.Footnote 185 According to the State Department, from August 1962 to May 1966 Chad’s embassy grew from two to three full-time employees, and Sierra Leone’s from three to six.Footnote 186 The quality of life for Black diplomats and staff was so dire that in 1960, the Washington Post called its hometown a ‘hardship post’.Footnote 187
In the months before their COPUOS invitations, senior diplomats from both Sierra Leone and Chad were victims of widely reported racist incidents. On 9 March 1961, Dr. William Fitzjohn, Chargé d’Affaires at the Sierra Leonean embassy, was driving from Washington to Pittsburgh to give a keynote lecture, when he was racially insulted and refused service at a Howard Johnson’s, a fast food diner, along Route 40 in Maryland.Footnote 188 Kennedy’s Presidential Apology to both Fitzjohn and the Sierra Leonean people came on 27 April, Sierra Leone’s first Independence Day.Footnote 189 Then in June, Chadian Ambassador Adam Malick Sow was refused service and racially insulted at another Route 40 diner, en route to present his credentials to the White House.Footnote 190 These are only two examples of the constant racism that African diplomats faced in the course of their work.
American racism made Black diplomatic life much more expensive. Landlords often demanded extortionate rental fees, to ‘compensate’ for the decrease in property value caused by their tenancy, and higher deposits, to mitigate their perceived loudness, poor hygiene, or uncleanliness.Footnote 191 These expenses continued beyond housing – barely six months after Fitzjohn’s presidential apology, the State Department intervened again to stop Ford Motors from extorting him for unlawful ‘taxes’.Footnote 192
Black diplomats in Washington depended upon the State Department’s under-resourced Special Protocol Services Section, led by Pedro Sanjuan.Footnote 193 In New York, they relied on USUN,Footnote 194 meaning the same people lobbying for their UN votes also ensured their access to housing, schools for their children, and the safety of their families and staff. Repeated racist violence and barriers to basic necessities placed Sow, Fitzjohn, and their successors to COPUOS into dependent and paternalistic relationships with the US State Department.Footnote 195 Sanjuan, perhaps the State Department’s most vocal racial justice advocate,Footnote 196 nevertheless recalled Sow as ‘a very meek little fellow’, and Sierra Leone’s Chargé d’Affaires as ‘little Fitzjohn’.Footnote 197 The myth of COPUOS’ egalitarianism does not account for the fact that some delegates in the room depended on the US – sometimes even on the US Delegation specifically – for their housing, safety, and wellbeing of their families and staff.
Black American communities in New York and Washington offered solidarity, coverage in Black media, and material and organizational support.Footnote 198 Black newspapers began forecasting racist violence against Black diplomats like the weather, warning of increased attacks during heatwaves and travel.Footnote 199 In 1964, after the Civil Rights Act, the Afro-Asian representatives to the UN formally complained to Secretary-General U Thant over the issue.Footnote 200 Unfortunately, the UN had similar problems.Footnote 201 In July 1963, Malian Permanent Representative Sory Coulibaly was assaulted, insulted, and nearly dragged from UN Headquarters by a (purported) UN security officer.Footnote 202 The incident was never publicly reported, and its internal follow-up is unknown – but it was undoubtedly not unique.
I am not implying that the State Department or US Mission to the UN (USUN) knowingly exploited racism against foreign dignitaries. Regardless of whether the exclusion was intentional, the barriers to participation were clear, and the State Department’s failure to act is unsurprising. Of the 0.7 per cent of State Department career staff who were Black in 1961,Footnote 203 none ranked higher than Deputy Assistant Secretary.Footnote 204 Black newspapers described Adlai Stevenson’s USUN as a ‘Jim Crow staff’,Footnote 205 and his first Black hire – two years after his appointment – sparked bluntly sarcastic headlines.Footnote 206 Perhaps the sole exception was Carmel Carrington Marr, who joined USUN in 1953 as a Legal Advisor, and by 1963 was singlehandedly coordinating USUN’s support efforts for Black UN diplomats – at least, until 1967, when she was dismissed after fifteen years of work.Footnote 207
The erasure of these histories started with silencing – a conscious, political silencing of ‘bad publicity’. Later, Sanjuan proudly estimated that his Office of Protocol Services prevented 90 per cent of the incident reports they received from making the press.Footnote 208 This silencing then became self-reinforcing, as reports dwindled.Footnote 209 In 1964, Charles Howard wrote in the Baltimore Afro-American that ‘these incidents are so numerous and the inaction of US officials so universal and unresponsive that [African diplomats] no longer report them’.Footnote 210 In other words, this fragmented history is all the more shocking because these were the few fragments left in the record.
In one of Chad’s only substantive COPUOS speeches before the OST, Ambassador Sow explicitly framed space lawmaking in the contexts of racism, free movement, and equitable representation, in a remarkably hopeful register:
I should not wish to wound the sensitivity of the members of this Committee by expressing the hope that this new enthusiasm … will be maintained and … allow the man of the future to move about more freely on the planet … perhaps for the first time in the history of humanity, men of all races will be seated at the same table for the purpose of discussing loyally and frankly their common happiness as well as their common dangers.Footnote 211
This juxtaposes starkly with the far more knowing and cynical tone the Powers and their allies took in private. Three days after Chad, Morocco, and Sierra Leone joined COPUOS, a British Foreign Officer privately expressed to his superior his ‘doubt whether the smallest countries will play much part, or whether they will always spare chaps to attend’.Footnote 212 Later, during debates on the 1963 Principles Declaration – again, effectively a first draft of the OST – the American delegate reported home:
the lack of any real demonstrated interest in most of the proceedings on the part of the noncommitted and smaller countries. Of the six Middle Eastern and African countries which are members of the Subcommittee, only Iran and the United Arab Republic were represented at this Session.Footnote 213
According to available records, in the first decade of space lawmaking, Chad spoke twice – once each at COPUOS and the LSC.Footnote 214 It missed more LSC meetings than it attended,Footnote 215 and it was absent from both COPUOS and the LSC during the 1966 sessions, entirely missing the public extent of OST negotiations.Footnote 216 Even the UN Secretariat repeatedly omitted Chad from delegate lists,Footnote 217 and from the UN credential list in 1964.Footnote 218 Meanwhile, Sierra Leone was at first a vocal contributor at the 1962 and 1963 COPUOS and LSC meetings,Footnote 219 but this soon changed. Sierra Leone was absent from nearly all of the 1964 LSC meetings,Footnote 220 5 out of 16 LSC meetings in 1965,Footnote 221 and half of the LSC meetings in 1966.Footnote 222 As I will discuss further in the next section, this had particular impacts in COPUOS, because of how its decisions were made.
4. Decision-making
4.1. Making sense of consensus
Who could actually impact the process of space lawmaking, given COPUOS’ decision-making process? COPUOS was the first permanent UN body to formally adopt a consensus decision-making process,Footnote 223 but in practice this operated more like ‘speak now, or forever hold your peace’.Footnote 224 This differs from the ‘consensus’ that became standard multilateral practice after the 1970s.Footnote 225 When the UN finally published a comprehensive rulebook for summary records writers in 1981, it restricted ‘consensus’ to situations with a formal, unanimous vote.Footnote 226 In other words, for most of space lawmaking, ‘consensus’ was determined by either the Committee Chair or the précis-writers on duty.Footnote 227 In COPUOS, consensus required states to agree, but it also demanded that even more states remained silent.Footnote 228
Consensus is often framed as a procedural equaliser that gives each state a veto. Former COPUOS Chair Nandasiri Jasentuliyana credited consensus with ‘enabling all countries, including small and developing countries, to participate in the elaboration of space law’.Footnote 229 For Jasentuliyana, it worked to ‘encourage compromise’ and ‘accommodate the differing interests of both space powers and non-space powers’.Footnote 230 Likewise, Lyall and Larsen claim ‘consensus means that the space competent nations will not get what they want from COPOUS without the consent of the space-incompetent, while the latter will not get their interests represented and articulated without the consent of the space-competent’.Footnote 231 Even critical scholars, after noting that consensus was ultimately ‘a threat’, nevertheless credit it with ‘diminishing disparities in power among states’.Footnote 232
But consensus did not work much like a veto during the Space Debates, especially for the Third World. At the time, consensus was still a fragile solution to the volatile East–West parity problem. To threaten to ‘use the veto’ was to demand a vote and totally stop the Committee’s progress. The Third World had the most to lose from delaying the rule of law in space,Footnote 233 were the most vulnerable to the Cold War crossfire, and they could hardly risk foreign trade and/or aid for the sake of space.Footnote 234
Consensus also further reinforced the mantle of legitimacy over the process. By ‘concentrat[ing] power among a subset of political actors with closer preferences’, Viola observes, the Powers could ‘afford to distribute decisionmaking authority more equally within the group, thereby avoiding the explicit legitimacy problems associated with a formally unequal distribution of rights’.Footnote 235 In practice, consensus was ‘a technique through which the Northern states could flatten, reshape and ultimately subvert attempts to create a more egalitarian international … system’.Footnote 236
The Powers used consensus in space lawmaking to limit dissent and keep outcomes predictable. It also enabled further exclusion, helping the US and USSR to prevent COPUOS from expanding from 1961 until 1973.Footnote 237 Over a decade later, the American delegate to UNCLOS said that consensus gave ‘procedural significance’ to ‘the variations in the power of nations’,Footnote 238 and ‘permitted the maintenance of an egalitarian procedure which in practice may assure that multilateral negotiations reflect the real geopolitical power of the participating nations’.Footnote 239 The consensus model proved so effective, it became the eventual basis for the general decision-making procedures established by UNCLOS,Footnote 240 and is now the UN’s primary decision-making method.
4.2. Constructing the record
Decision-making was also impacted by whose voices were being incorporated into intermediary documents, such as committee reports. At the time, COPUOS reported to the UNGA’s First Committee,Footnote 241 and its reports were the UNGA’s main window into their process and results. The best way to manage COPUOS’ outcome was to manage the Committee Report. In 1959, the US arrived to the Ad Hoc COPUOS with a pre-written draft report defining the Committee’s mandate and main legal findings.Footnote 242 Without Soviet or Third World opposition, the US created a Working Group of the United Kingdom, France, Mexico, and Japan, which only existed for 12 days to approve their position paper. The only record of the group’s work was a note by Oscar Schachter of the UN General Legal Division. Even among allies, Iran and Australia objected to the draft’s universalist register,Footnote 243 which tidily laundered American policy into conclusions ‘[t]he Committee unanimously recognised’.Footnote 244 Still, one Power’s agenda became a working paper by five states, then a report approved by 13, and ultimately the unanimous expression of the UNGA.
By 1962, COPUOS had become a permanent body, and the East and Third World boycotts had ended. Like before, COPUOS reports were reviewed under annual agenda items in the UNGA and First Committee. But now, open debate on space law threatened both American and Russian interests. The Powers insisted that COPUOS Reports remain dry and factual, to prevent Reports from sparking debates in plenary session that might become inconvenient rules.Footnote 245 In June 1962, Indian delegate Krishna Rao proposed a list of conclusions for the Legal Subcommittee Report – but, as the US Delegation later told a Congressional Committee, ‘This proposal was not actively considered, probably because the Indian representative (Krishna Rao) left Geneva the next day.’Footnote 246
The tendency for certain ‘political’ views to be omitted or summarized beyond recognition became a regular complaint by Third World delegates as reports were drafted.Footnote 247 In 1964, Indian delegate Krishna Rao ‘regretted that all the elements of discussion were to be excluded [from the Report,] merely because of the [Indian] suggestion that a reference should be made to the principle that outer space should be reserved exclusively for peaceful uses’.Footnote 248 He noted that his proposal, though popular, ‘had not received the favourable reception which it deserved and there was no mention of it in the draft report’.Footnote 249 In response, some COPUOS members began to append the session’s verbatim record and/or working papers to the report.Footnote 250
Unfortunately, this exacerbated ongoing administrative issues. The Secretariat’s conference services units – which included language services, document production, and event support – spent the 1960s quietly imploding under strain of their impossible workload.Footnote 251 In March 1962, COPUOS decided it would produce verbatim records – without consulting the Secretary-General (as obliged by Regulation 13.1 of the UN Financial Regulations),Footnote 252 the General Assembly (its parent body), or the Secretariat (which would fund and produce said documentation).Footnote 253 Exactly one week later, the UN Comptroller sent an Administrative Issuance to the entire UN Secretariat, politely requesting officers to pay ‘added attention and consideration to the effect that demands for meeting and documentation services for bodies for which they have substantive responsibility may have on the ability of the Office of Conference Services to meet its total workload requirements’.Footnote 254 By 1967, Conference Services produced and printed enough pages to circle the Earth four times.Footnote 255 Verbatim records demanded a ‘substantial workload’ from administrative staff, on extremely short deadlines – per a 1967 Secretary-General report, the ‘demands by members of committees’ to provide verbatim records, despite the UNGA’s multiple ‘calls for restraint’, caused significant ‘financial and administrative burden’ – ‘the pressure of the work itself’ made the ‘observance of editorial rules’ all but impossible.Footnote 256
The documentation crisis further limited Third World participation in subtle but profound ways. On multiple occasions, the 30 per cent of COPUOS delegates who spoke French or Spanish only received translations of key documents weeks after their ‘approval’ – by ‘consensus’.Footnote 257 This included the 1964 COPUOS Report, which was approved without French or Spanish translations,Footnote 258 despite objections by Mexico and France.Footnote 259 Sometimes, Conference Services even struggled to produce English documents before the relevant meeting.Footnote 260
Geneva felt the documentation crisis first – by 1964, the ‘short-term’ contract staff hired to bolster its separate conference and documentation units ‘had to be employed on a year-round basis because the regular establishment itself is unable to satisfy the demands of the conference programme at any single period during the year’.Footnote 261 This had direct impacts on the quality of interpretation, translation, and record production, especially for meetings punctuated in novel legal jargon and rocket-talk. In 1963, US Representative Plimpton recalled that last year’s meeting records ‘were not available here [at HQ] until more than two months after the Geneva meetings’,Footnote 262 while Argentina’s D. Florencio Méndez concluded that meetings in Geneva ‘involve[d] lesser services from the Secretariat’.Footnote 263 By 1965, even the Secretariat agreed with him.Footnote 264 By late 1966, even Headquarters struggled to produce records, including for the UNGA’s First Committee. To this day, there are dozens of speeches that were not (accurately) recorded – per doctrine, they constitute state practice, but as records, they are only available if international lawyers read against and beyond the UN record.Footnote 265
A particularly powerful example was a speech by Liberian President William V. S. Tubman, who did not yet know that the OST had already been written by the Powers in secret.Footnote 266 Except for this speech, Liberia’s role in space lawmaking would have been limited to approving the final products. Instead, Tubman advocated for caution, noting the harms modernity had wrought throughout history:
[W]e believe that all men would be benefitted by an international agreement to refrain for a given, reasonable period, five years perhaps, from engaging in any experiments in space not specifically accepted in advance by international agreement … to remove the element of competition, of haste, of heedlessness from man’s exploration of the heavens … before he risks plunging himself and all humanity into a cataclysm which none could foresee …Footnote 267
He then continued:
[N]o matter how small, no matter how struggling, no matter how poor we may be, we share the same heavens with the greatest Powers. Their catastrophes are usually ours; their failures of understanding affect our lives as intimately as their own; their concentration of money, imagination, scientific endeavor and national ambition on a headlong, impatient and wasteful race for knowledge which they cannot even take the time to study affects our lives, our hopes, our future just as it does their own.Footnote 268
The UN record of Tubman’s plea was one of a dozen lost to the documentation crisis; the sole record is from Tubman’s copy. The speech itself remains suspended in space, without record of its context or reception.
5. Drafting
Fourth and finally, who could meaningfully contribute to drafting the formal and final outcomes of space lawmaking? The two main outcomes between 1957 to 1967, the Principles Declaration (1963) and the OST (1967), were substantially similar – but the former was non-binding, albeit widely considered to declare existing custom.Footnote 269 They were also negotiated in broadly similar ways.
5.1. Inclusion and exclusion
Drafting in COPUOS worked as follows. First, the US and USSR reached some agreement in secret negotiations. Then, each consulted their allies – the Soviet Union turned to their bloc,Footnote 270 and the US consulted the ‘Western Twelve’ (in 1963) or ‘Friendly Fifteen’ (in 1966).Footnote 271 The complex relationships between the US and Western Twelve can be simplified into two groups of two. First were the ‘Old Commonwealth’ (UK, Canada, Australia) and other European/NATO allies (France, Belgium, Italy), and then states that hosted US tracking stations: some fellow OAS members (Mexico,Footnote 272 Brazil,Footnote 273 ArgentinaFootnote 274), and others in more specific bilateral arrangements with Washington (Japan,Footnote 275 Iran). By 1966, the Western Twelve had added three more ‘friendly neutral’ states (Sweden,Footnote 276 Lebanon,Footnote 277 and Austria) to comprise the Friendly Fifteen.
Friendship with Washington came in tiers. As such, the US consulted the ‘Old Commonwealth’ first and with more candour, then briefed the Committee Chair, and only then informed their remaining Western allies:Footnote 278
We met with Reps of UK, Canada, Australia to give them candid fill-in on our moves yesterday [to begin OST negotiations]. As expected they were somewhat ruffled by lack of any consultation, particularly since we had earlier told them there was no US draft treaty. However, they appeared fully to understand why speed was necessary to prevent [the] Sov[iet] treaty from being first unveiled to public … We will give [a] less candid but fairly complete briefing to larger group of friendly members on 20 June.Footnote 279
In practice, the Old Commonwealth could contribute to drafting, whereas the less ‘friendly’ of the Friendly Fifteen could only approve the result. This was a function of the process – by the time Lebanon or Iran received a draft, any amendments would require approval from most of the Committee to amend. The Powers and their allies knew this, and knew that without management, there would be uncomfortable political fallout. ‘The Americans are keenly aware,’ UK Representative Patrick Dean told the Foreign Office in January 1962, ‘of the danger of irritating friendly members of the Outer Space Committee by seeming to pre-arrange the affairs of the Committee without consultation.’Footnote 280 For the West, the problem was the optics of undue control, not the undue control itself. In 1962, Britain agreed to let Washington and Moscow ‘stage manage’ the Committee’s work, and to ‘gently dissuade the other “friendly members” of the Committee from getting angry at this’.Footnote 281 This demonstrated that even among the Friendly Fifteen, some had more influence over space lawmaking than others. It also relegated most of the Committee – even those friendly with the Powers – to act as a rubber-stamp approval body with little actual power.
Control over discourse quickly became an exclusion from substantive contribution. After negotiating the Principles Declaration in secret in 1963, the US and USSR agreed to ‘oppose any amendments which might, e.g., be made by [a] publicity-seeking neutral’.Footnote 282 Future international judge Platon Morozov and State Department lawyer Leonard Meeker resolved to obstruct further amendments without their approval; Morozov stressed the ‘danger that some non-space actor might destroy our work if understanding were otherwise’.Footnote 283 In October 1963, Paul Nitze, who soon after became Secretary of the US Navy, insisted that the State Department ‘coordinate with the Soviet Union to have better control over the UN debate’.Footnote 284 Even as Washington and Moscow colluded to write space law in private, they claimed otherwise. After spending six months secretly negotiating the Principles Declaration with Platon Morozov, US Ambassador Adlai Stevenson stood and told the First Committee it had been written ‘not by secret agreement reached behind closed doors, but by public debate on a floodlit stage’.Footnote 285
Meanwhile, Chad, Sierra Leone, Morocco, and India were excluded from both blocs’ negotiations; they received drafts in the committee meeting, if they could attend. India’s exclusion from informal meetings was likely punitive, and somewhat personal. Indian delegates across multiple UN organs established themselves as forceful critics of both East and West alike, exposing loopholes, explicating subtext, and calling out perceived hypocrisies on behalf of the Non-Aligned and Third World.Footnote 286 From its first COPUOS meeting in 1962, India – especially its COPUOS representative, Krishna Rao – was stubborn, blunt, and cogent. Rao decried the ‘careless use of space’,Footnote 287 lest ‘the future of mankind might be jeopardised by a single act of negligence’ by a careless Power.Footnote 288 Amidst the triumphant and laudatory speeches after the Principles Declaration’s approval, Rao cut through to remind COPUOS that ‘it was not enough for the world community to obtain assurances from the space Powers’;Footnote 289 this had to be ‘only the beginning’Footnote 290 to a binding treaty.Footnote 291
Indian critique was troublesome enough to bring East and West together in opposition, especially against two Indian proposals for ‘a total demilitarization of outer space’,Footnote 292 and binding rules ‘ensuring that all precautions were taken against the contamination or pollution of not only the earth’s environment but that of celestial bodies’.Footnote 293 Both points directly contradicted two of Washington’s top secret space policy objectives – to legitimize military intelligence activities in space,Footnote 294 and to limit environmental discourse in the wake of high-altitude nuclear tests and Project West Ford.Footnote 295 Moscow felt similarly. Moreover, both Powers knew that many in COPUOS – and most of the UN – did not. ‘It was always rather comical when the US and the USSR did agree, but the delegate from India would get up and disagree,’ Congressional Researcher Eilene Galloway later recalled. ‘Then we had to attend to his concerns, whatever they were.’Footnote 296 While negotiating the Principles Declaration in 1963, the US and Soviet Union collaborated to limit the former demand to a muted preambular reference to peaceful use,Footnote 297 and to cut environmental language entirely.Footnote 298 India noticed the omission after the fact,Footnote 299 but by then it could only approve the draft.
The OST largely replicated the 1963 Declaration, barring some US–Soviet disagreements on final clauses and access arrangements for Moon facilities that remain unbuilt. But by 1966, both Powers were frustrated with India. The US delegation asked NASA for ‘helpful ideas as to how some of objections of the Indian Delegation and others may be met without raising troublesome operational problems’,Footnote 300 and were advised to concede to the Soviet draft, ‘since [the] Soviet sentence on harmful contamination [was] likely to be more reassuring to [the] Non-Aligned… This tactic should enable [the] USSR and US to work together to avoid further, less flexible institutional arrangements on contamination, which neither state wants’.Footnote 301
In July 1966, early in the OST’s drafting, Indian delegate Krishna Rao wrote a full draft OST and brought it to COPUOS – but Lebanese Representative Chammas persuaded him not to submit it, to preserve the fragile US-Soviet cooperation.Footnote 302 That draft – a Third World, Non-Aligned Outer Space Treaty – has not surfaced, and its contents remain unknown. For now, it demonstrates the complex dynamics of exclusion-inclusion, wherein one Third World state deputized itself and actively silenced another, for the Powers’ political convenience.
5.2. Managing internationalism
By October 1966, the US and USSR had mostly finished the OST; now they needed COPUOS approval. Secrecy was critical: ‘Morozov made [a] strong plea that negotiations and [the] extent [of their] agreement be kept confidential. Goldberg emphatically agreed.’Footnote 303 Washington and Moscow repeatedly used Committee Chair Kurt Waldheim to repackage their bilateral agreement as UN consensus. The official line, written in the same passive register as the Ad Hoc Report years before, mentioned private negotiations between interested governments,Footnote 304 but not the extent of US–USSR collaboration. A few days after the UNGA approved the OST, US Undersecretary of State for Political Affairs Foy Kohler remarked that ‘the agreement had a convenient UN cover’.Footnote 305 That UN cover may have enabled US–Soviet cooperation, but it also helped to constrain the multilateral process and preserve the Powers’ asymmetrical control over its results. From COPUOS’ first full meeting, Washington’s explicit objective was ‘limiting [the] next Committee session insofar as possible to rubber stamping tech recommendations’.Footnote 306 From then on, US and Soviet delegates collaborated to ensure just that, as shown by their actions in both 1963 and 1966. In the process of making space law, the Powers learned to harness selective inclusion to relegate the unpredictable UN of 1962 into an approval factory with predictable results.
This dynamic was exemplified by how the finished OST was published. First, the White House announced the treaty’s conclusion,Footnote 307 and then leaked the final text to the New York Times,Footnote 308 which the next morning became the OST’s first publisher on 9 December 1966.Footnote 309 By this point, the text had been all but final for at least two weeks – and the White House had spent the time since planning its announcement.Footnote 310 Before leaking it, the White House sent the text to 14 Congressmembers, NASA, the Joint Chiefs of Staff, and the State Department,Footnote 311 but the rest of the UN first read the treaty in the papers. The UN Secretariat only received a copy four days after the New York Times,Footnote 312 which was disseminated to the UNGA’s First Committee two days later, on the 15th.Footnote 313 This came in the last days of the longest UNGA in history; delegates and UN staff were exhausted, and capitals struggled to return detailed instructions overnight. On Friday, 16 December, the First Committee approved the draft OST – ‘by consensus’– and the plenary UNGA followed suit the following Monday. For the First Committee, the draft OST was presented as a fait accompli that they could approve, but not change.
6. Conclusions
The Vienna Convention on the Law of Treaties defines a ‘negotiating State’ as one ‘which took part in the drawing up and adoption of the text of the treaty’.Footnote 314 On a basic doctrinal level, the question of participation is fundamental to how international law is made. However, legal scholarship rarely considers participation in real terms, or with archival corroboration. Likewise, space lawyers have too often accepted the myth of inclusivity at face value. In doing so, we have continued the exclusion of Othered peoples – and with them, Othered epistemologies of space, distributive justice, and the commons.Footnote 315 However, that substantive point is contingent upon, and perhaps cannot be understood without, understanding the procedural context.
With the mainstreaming of ‘Equity, Diversity, and Inclusion’, the words ‘in/exclusion’ have developed a bad reputation among activists as the rhetoric where more radical justice projects go to die.Footnote 316 For instance, E. Tendayi Achiume recounts how the vast array of reconciliatory demands that coalesced after the murder of George Floyd were ultimately ‘reduced to equality, diversity and inclusion (EDI) initiatives’.Footnote 317 By starting the conversation about exclusion in space law from the beginning, I hope to prevent a similar co-option. Exclusion, without context, becomes a problem that seems possible to solve with additional chairs – rather than by radical disruption to the systems and processes that produce exclusion.
This granular and multifaceted approach to Third World exclusion from space lawmaking is relevant for both space and generalist international lawyers. These events are part of a forgotten prologue that enabled our present. ‘[T]here is no doubt that a very small minority of powerful developed States is monopolizing the decision-making process in the COPUOS and has been using the requirement of consensus as a veto power’,Footnote 318 María de las Mercedes Esquivel de Cocca said in 2004. ‘These States see no need to elaborate further the legal regime of outer space.’Footnote 319 Consensus is just one exclusionary tactic still being deployed today, and COPUOS is but one affected forum. But it was from this history that consensus became the UN’s primary decision-making procedure, and from this history that Powers further developed techniques to manage internationalism in a postcolonial world. By examining Third World exclusion from a particular part of international legal history, I hope to expand wider understandings of how similar exclusion is reproduced today, by similarly ‘universal’ projects.Footnote 320
The history of exclusion that produced the Outer Space Treaty matters. I did not write this article to burden anyone’s conscience, but to invite change – change to how we as a discipline parse a watershed moment in international law(making). A treaty that begins by ‘recognizing the common interest of all mankind [in space]’ should read differently, after learning how little of humankind could contribute.Footnote 321 The least we can do is recognize the harms and inequities that produced this cornerstone of space law – harms yet unreconciled, and inequities still ongoing. This is especially crucial given recent revisionist denials that space is a commons at all.Footnote 322
Exclusion from space lawmaking is not just historic – the causes may have changed, but the effects continue on. Since 2009, an average 19.3 per cent of COPUOS members per year have been absent, and 27 per cent have remained silent.Footnote 323 That is, for the last 15 years, approximately half of COPUOS members have been absent or silent, in both plenary and subcommittee meetings. Frequently absent states include Albania,Footnote 324 Benin, Cameroon, Chad, Ghana, Niger, Senegal, and Sierra Leone – a group featuring an overrepresentation of African states, and three of the OST’s original negotiators. Space law’s myth of inclusivity has led to erasure and revisionism, which in turn has prevented us from understanding present exclusion as a problem in our discipline, much less a problem with history and context.
It is the onus of international (space) law’s interpretive community – those who wield the authority to make its meaning matter – to urgently re-evaluate how our discipline’s history impacts our practice. It is on us, as the interpretive community of space law, to ensure that space feels as ‘common’ as we claim it to be.
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