H-Diplo ARTICLE REVIEW 1021 24 February 2021

Stephen Buono. “Merely a ‘Scrap of Paper’? The Outer Space Treaty in Historical Perspective.” Diplomacy & Statecraft 31:2 (2020): 350-372. DOI: https://doi.org/10.1080/09592296.2020.1760038. https://hdiplo.org/to/AR1021 Article Review Editors: Thomas Maddux and Diane Labrosse | Production Editor: George Fujii

Review by David T. Burbach, U.S. Naval War College1

longside the technological achievements of the Apollo era was a related diplomatic achievement: the 1967 Outer Space Treaty,2 an American-initiated, globally-negotiated treaty prohibiting nuclear weapons in space and A establishing a basic framework of international law that to this day guides the exploration and exploitation of outer space. In this article Stephen Buono offers a timely historical analysis and reassessment of the Treaty. Buono provides the best available account of Treaty negotiations and the U.S. ratification debate, and he shows that ‘North-South’ diplomacy was an often-overlooked but important part of those negotiations. The article better connects discussions of the Treaty in the diplomatic history literature, which is mostly limited to its arms control aspects, with the much wider discussions about it in space law, political science, and contemporary policy debates.

Buono’s basic argument is that the Outer Space Treaty has been misunderstood in several ways (352). First, that the Treaty has often been viewed – when it is considered at all – merely as a nuclear arms control treaty, and a minor one at that. Buono also argues the Treaty has been misunderstood in that evaluations tend to either extreme of dismissing it as a ‘scrap of paper’ that imposed nothing meaningful, or to exalt it as if it were a successful Kellogg-Briand pact of the heavens. Instead, he suggests, we should see the Outer Space Treaty as the culmination of a decade’s worth fundamental law-making after Sputnik, serving a “quasi-constitutional” role for space law today (368). Buono further asserts that the Treaty negotiations were one the first instances where North-South disagreements – i.e., developed vs developing nations – became a major factor in global negotiations. He takes the middle road of arguing the Treaty proved neither a failure nor panacea, but on the whole a useful if limited achievement.

Buono’s claim that the Outer Space Treaty is understood too narrowly as an arms control agreement is surprising, given that in contemporary space policy and space law discussions the Treaty is a constant presence, and is sometimes referred to as the ‘Magna Carta of space.’3 On reflection, however, Buono is correct about its lack of recognition in Cold War diplomatic

1 The views expressed in this review are the author's personal positions and do not represent those of the Naval War College or the United States Government.

2 “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies” (hereafter ‘Outer Space Treaty’), opened for signature 27 January 1967, United Nations Treaty Series Online, Registration 8843, https://treaties.un.org/doc/Publication/UNTS/Volume%20610/volume-610-I-8843-English.pdf

3 John W. Bellflower, “The Influence of Law on Command of Space,” Air Force Law Review 65 (2010), 107; Edwin W. Paxson III, “Sharing the Benefits of Outer Space Exploration: Space Law and Economic Development,” Michigan Journal of International Law 14 (1992), 487; Todd Barnet, “United States National Space Policy, 2006 & 2010,” Florida Journal of International Law 23 (2011), 277. Over 200 articles in Space Policy refer to the Outer Space Treaty, and it is frequently discussed in law journals such as the Journal of Space Law, Air & Space Law, and general-interest international law journals.

© 2021 The Authors | CC BY-NC-ND 3.0 US H-Diplo Article Review 1021 history and the security studies literature. General Cold War histories pay the Outer Space Treaty little if any attention. Hal Brands discussed it in his 2006 reassessment of President Lyndon B. Johnson’s arms control policy, but a reader would never know from Brands that the Treaty had provisions beyond banning orbital nuclear weapons.4 A few books on Cold War space policy better link the Treaty to arms control and military space policy of the era, but still say little about its ‘quasi- Page | 2 constitutional’ aspects for the general exploration and use of space.5 Walter McDougall’s classic account of the space race offers a more holistic perspective, but without details of the Treaty’s negotiating history or Johnson Administration decision making.6

Buono’s article is thus a welcome contribution to the diplomatic history literature. It is the most comprehensive account yet of the Treaty negotiations and of the U.S. policymaking and ratification process, including some interesting but mostly- forgotten points of disagreement.7 Tracing the Treaty’s intellectual roots and role as a legal foundation better connects the ‘arms control’ and ‘quasi-constitutional’ literatures, and Buono makes a good case that we should see the Treaty as a milestone in North-South, not just East-West, relations. In making these arguments the article draws on the expected U.S. government archival sources, the negotiating record in the U.N. Committee on the Peaceful Uses of Outer Space (COPUOS), and contemporaneous news media coverage.

Buono explains that the Outer Space Treaty incorporated a decade’s worth of legal thought, including multilateral work through the United Nations Committee on the Peaceful Uses of Outer Space (354-359). In this sense, the Outer Space Treaty should be seen as part of the larger project of extending formal international law to unclaimed spaces after World War II, notably Antarctica, the high seas, and outer space. The most relevant parts of the Treaty to spacefaring nations and firms today are its codification of the basic principles such as of freedom of access, assignment of liability, and that the Moon and other celestial bodies may not be appropriated as national territory. That intellectual trajectory will be familiar to the space law community and has been explored by some political scientists,8 but deserves better recognition in diplomatic history.

A more novel contribution of the article is its highlighting of North–South diplomacy (359-362). Buono shows that developing world representatives, from countries leaning both East and West, argued that the Treaty should contain actionable requirements for the spacefaring powers to share benefits and any wealth generated from space activities with all other nations. The Outer Space Treaty diplomacy can be seen as an early stage of the North-South economic bargaining that became a major theme of 1970s global diplomacy.9 The Treaty came soon after the formation of the United Nations

4 Hal Brands, “Progress Unseen: US Arms Control Policy and the Origins of Détente, 1963–1968,” Diplomatic History 30:2 (2006): 258-262.

5 Paul B. Stares, The Militarization of Space: US Policy, 1945-1984 (Ithaca: Cornell University Press, 1985); James Clay Moltz, The Politics of Space Security: Strategic Restraint and the Pursuit of National Interests, 3rd Edition (Palo Alto: Stanford University Press, 2019).

6 Walter A. McDougall, The Heavens and Earth: A Political History of the Space Age (New York: Basic Books, 1986), 416-420.

7 As an example, negotiations stalled over a Soviet insistence that if a third-party country allowed any space power to build a tracking or communication station on that nation’s territory, all space powers would gain the right to come in and build facilities there. Apparently that imposition on sovereignty went over poorly not only with the western bloc but with non-aligned nations, and the Soviets eventually dropped the issue (358-359).

8 M. J. Peterson, “The Use of Analogies in Developing Outer Space Law,” International Organization 51:2 (1997): 245-274; Elizabeth Mendenhall, “Treating Outer Space Like a Place: A Case for Rejecting Other Domain Analogies,” Astropolitics 16:2 (2018): 97- 118; Jason Beery, “Unearthing Global Natures: Outer Space and Scalar Politics,” Political Geography 55 (2016): 92-101.

9 Stephen D. Krasner, Structural Conflict: The Third World against Global Liberalism (Berkeley: University of California Press, 1985); Robert J. Griffiths, “From the Ocean Floor to Outer Space: The Third World and Global Commons Negotiations,” Journal of

G-77 bloc, and it was followed by promises in the 1968 Nuclear Non-Proliferation Treaty to share the benefits of nuclear technology with less developed countries. The “global South” made even stronger demands in later negotiations over the Law of the Sea, the so-called “Moon Treaty” and the New International Economic Order, largely without success.

Welcome as this account is, there are some unanswered questions, which may perhaps be unanswerable from the Page | 3 documentary record. Buono shows that the Outer Space Treaty built directly on prior space diplomacy, but the specific round of negotiations that led to the Treaty seems to have come out of the blue from President Johnson in May of 1966 (356). Two other accounts report that Johnson’s announcement was the culmination of a two-year interagency review of U.S. space policy; neither source details that review other than noting disagreement.10 One can imagine other policy choices that Johnson might have made, so it would be interesting to know the shape of that 1964-1965 internal debate.

Future research might also investigate the North-South story with more on the thinking of developing world governments. Buono’s account relies mostly on contemporary U.S. government reporting, so it covers positions taken openly in COPUOS but that do not necessarily illuminate the thinking and tactical calculations behind those statements. What did ‘South’ governments realistically hope to achieve? What coordination or ‘bloc’ negotiation was there? Did the fairly disappointing experience with the Outer Space Treaty influence later bargaining efforts, for example in demanding that the Law of the Sea treaty include highly detailed provisions for a ‘seabed enterprise’ that would share benthic wealth with poor and landlocked nations?

Buono’s assessment of the Treaty’s legacy is mixed, which seems a reasonable conclusion, though perhaps not as novel as is claimed relative to the whole literature on the Treaty. Formalizing a ban on nuclear weapons in space was valuable even if the superpowers were disinclined to deploy them; a legal ban increased certainty and provided a rejoinder to inevitable proposals from each side’s military-industrial bureaucracy. Developing nations may feel that spacefaring powers never lived up to the aspirational ‘benefit of all countries’ of Article I, though as Buono notes even a statement of principle was a real advance. The Antarctic Treaty of 1959 had offered nothing to countries that could not maintain an expensive Antarctic presence on their own.11 From the perspective of its American proposers, the treaty probably deserves a more positive evaluation than Buono provides, if it was not McDougall’s “triumph,”12 it was at least a successful act of statecraft. The Outer Space Treaty barred nothing the American government wished to do, and allowed what the U.S. hoped to do, like private sector space activity, which the Soviets proposed banning. Knowingly or not U.S policymakers chose an ideal time to propose the treaty, when superpower tensions had eased but before North-South disagreements grew as difficult as they did in the 1970s.

Looking to the Treaty’s relevance today, Buono opens with the renewed interest surrounding the creation of U.S. Space Force. Ironically, the Outer Space Treaty is less relevant to Space Force than to current civilian efforts to return to the Moon and make commercial use of lunar resources. Space Force is not likely to do anything in space that was not already being done by the U.S. Air Force; its creation mostly shuffles the Defense Department bureaucracy. More generally, the major powers have long interpreted “exclusively for peaceful purposes”13 to allow reconnaissance and other military

Third World Studies 9:2 (1992): 375–389; John Toye, “Assessing the G77: 50 Years after UNCTAD and 40 Years after the NIEO,” Third World Quarterly 35:10 (2014): 1759-1774.

10 McDougall, 415; Brands, 259.

11 “The Antarctic Treaty,” signed 1 December 1959, United Nations Treaty Series Online, Registration 5778, https://treaties.un.org/doc/Publication/UNTS/Volume%20402/volume-402-I-5778-English.pdf

12 McDougall, 419.

13 Outer Space Treaty, 208.

© 2021 The Authors | CC BY-NC-ND 3.0 US H-Diplo Article Review 1021 satellites, and even to allow anti-satellite weapons tests.14 Space Force is not permitted Moon barracks, but is otherwise little constrained.

On the other hand, the new wave of lunar interest highlights the Treaty’s ambiguities toward ownership and exploitation of extraterrestrial resources. NASA Administrator Jim Bridenstine proposed an interpretation analogous to high seas fishing: Page | 4 no one may claim a section of the Moon as real estate, but as soon as one lifts a shovel of lunar soil, the collected material becomes private property that can be sold for profit.15 Bridenstine’s high-seas analogy will not be reassuring to those familiar with the problems of overfishing and criminality at sea. The Trump Administration has done little to explain how it reconciles the Treaty’s call for space activities to be conducted “for the benefit and in the interest of all countries”16 with commercial exploitation. Instead, the Administration has proposed bilateral agreements with other lunar-interested nations, the so-called “Artemis Accords.”17 Although it will be useful for nations operating on the Moon to agree to a common set of rules, moving away from COPUOS to bilateral deals with other space powers represents a step backward from the Outer Space Treaty’s global aspirations, and more resembles the Antarctic Treaty’s benevolent oligopoly. Stephen Buono’s revisiting and recontextualizing of the Treaty’s origins will be of interest to scholars, but is also relevant to these contemporary debates on how humanity will relate to outer space.

David T. Burbach is an Associate Professor of National Security Affairs at the U.S. Naval War College, in Newport, Rhode Island. His areas of expertise include space policy, nuclear strategy, and the politics of U.S. foreign policy, particularly civil- military relations. He has published articles in journals including Space Policy, Orbis, Armed Forces & Society, and Contemporary Security Policy. Professor Burbach holds a doctorate in Political Science from the Massachusetts Institute of Technology.

14 Joan Johnson-Freese and David Burbach, “The Outer Space Treaty and the Weaponization of Space,” Bulletin of the Atomic Scientists 75:4 (2019): 137–141.

15 Christian Davenport, “NASA Announces It’s Looking for Companies to Help Mine the Moon,” Washington Post, accessed 21 September 2020, https://www.washingtonpost.com/technology/2020/09/10/moon-mining-nasa-search/.

16 Outer Space Treaty, 207.

17 “The Artemis Accords and the Next Generation of Outer Space Governance,” Council on Foreign Relations, accessed 21 September 2020, https://www.cfr.org/blog/artemis-accords-and-next-generation-outer-space-governance .