One hundred and fifty years have gone by since Stephen Decatur demonstrated that:
The seas beyond reasonable coastal areas are free and subject to control by no single despot or nation, and
The sponsors of ships at sea must be responsible for the conduct of their vessels.
The forces which motivated Decatur are once again the source of uncertainty, this time in relation to an infinitely greater channel of communication—outer space! Much controversy exists not only on questions of national control of airspace, which may be likened to territorial waters, but on the boundaries and laws of outer space itself. Yet as the scientifically sophisticated nations of today join in launching the first man-made satellites into space, while in other arenas they perfect their space-travelling pilotless missiles of war, the lessons taught by Decatur have not been forgotten.
The most influential contemporary thinking, in fact, leads inescapably to the conclusion that basic maritime and naval principles, as they now apply to the high seas, must eventually be transferred to space. It is a proposition which may appear at first glance to be a matter of natural extension and simple logic. The “inescapable” conclusion may seem really just a “foregone” one. But this is not the case. Up to now, there has been nothing like agreement on any matter pertaining to outer space. Moreover, only a small minority is yet aware that serious problems of space behavior are here, and here now!
The problems are not simply those of the technicians, the engineers, and the physicists, enormous as their tasks may be. They are the equally elusive and even more dangerous problems of human relationships, of national military policies, of international rules, and of world understanding (or misunderstanding) as related to man’s first ventures into space.
Trouble Recognized Today
Of paramount significance is the State of the Union message delivered to Congress by President Eisenhower early this year. The President, in discussing possible disarmament policy, said:
“We are willing to enter any reliable agreement which would . . . mutually control the outer space missile and satellite development.”
This is the first time that the Chief Executive of any nation has certified the existence of space devices, actual or potential, which may require political and/or legal control.
The fact that Mr. Eisenhower did so has had a considerable effect on other governments. It has also served to alert the American public at least to the physical dangers involved. For, as one of the nation’s leading newspapers editorialized:
“The ICBM’s military possibilities are self-evident, and if we let our imaginations dwell upon the artificial satellites, we may not be far wrong if we visualize them as the forerunners of ‘space platforms,’ or interplanetary warships, or earth-destroying cosmic weapons, or defense bases anchored in the heavens far above the atmosphere. We are living in an age when it is no longer silly or unrealistic to reckon with such things."
Government attorneys confirm that prior to the White House announcement of the satellite program in 1955, special conferences on international law were held to discuss some of the more serious legal problems of “free space,” notably the upward extent of national sovereignty. Apparently the President’s announcement was not made until he had been flashed the green light in accordance with conclusions reached during the conference. Clearly there was substantial agreement that Project Vanguard would not, in the judgment of the United States, violate any established principles of international law.
Additional evidence of the Government’s interest is discernible. For example, international lawyers in Federal service have been lecturing to groups of highly placed scientists on the principles of rights in space and the theories of air sovereignty. At the same time it is reported that special studies on some of these same problems, and other allied ones, have been or are being undertaken by military lawyers in the Department of Defense.
Internationally speaking, there is a subsurface ferment among the United Nations over the political problems of near-space; and the International Civil Aviation Organization, an agency of the UN with headquarters at Montreal, is actively probing certain legal phases of it.
In private circles, too, a rapidly accelerating interest in the political sciences as applied to space is underway. This has nowhere been better illustrated than during the most recent annual meeting of the conservative American Society of International Law. The Society’s first order of business dealt with the problems of outer space, a matter posed to the convention by John Cobb Cooper, Director of the Institute of International Air Law at McGill University.
Factual Causes of the Problem
Some of the scientific causes contributing to the development of what might be termed the “nautical rules of space” are well known.
They include at least the following:
(1) Project Vanguard, the first satellite-launching plan, which is part of the scientific program of the United States and 41 other countries for the 1957-58 International Geophysical Year—which began July 1, 1957.
(2) The Intercontinental Ballistics Missile program, details of which are largely classified.
(3) The announced intent of the USSR to proceed with an independent Russian satellite program and to form a Soviet Interdepartmental Commission for Interplanetary Communications.
Some of the less well known scientific developments, however, are also having their effect. These include:
(1) Disclosure by Lockheed Aircraft Corporation that the company’s missile division is developing its own data-gathering satellite. The Lockheed “moon”—unlike Project Vanguard—is expected to employ self-contained power derived either from the sun’s rays or from small atomic batteries.
(2) Disclosure by Rear Admiral Rawson Bennett II, Chief of Naval Research, that rocket engines are available which could maneuver piloted aircraft to altitudes approaching 150 miles at a speed of 3,500 miles per hour. “A feasibility study done for the Office of Naval Research,” says Admiral Bennett, “has shown that it should be possible to build, with a motor now available, a manned rocket plane that could fly to 750,000 feet at a speed of about Mach 5, and land safely.”
(3) Disclosure by the Cambridge Air Force Research Center that U. S. technicians have finally learned how to harness energy stored by the sun in the earth’s outer atmosphere. Experiments are conducted at the Holloman Air Development Center in New Mexico. In one of those leading to the major discovery, scientists created a temporary new star, larger than the moon, at an altitude of 60 miles by releasing compressed nitric oxide gas and thus “triggering” the latent sun-stored energy. Details of plans to control this energy are restricted, but they are being described as perhaps the greatest development yet along the road to interplanetary flight by the scientists of this or any other of the Western countries.
National Dominion Upward
The most pressing legal problem facing today’s world as the result of this remarkable march of science is whether “spacecraft” of any kind, once launched, will be trespassing on the sovereignty of other nations.
Cooper recently stated the issue this way:
“Flight instrumentalities, such as rockets, satellites, and other spacecraft do not fall within existing national or international regulatory provisions. Nor is there any agreement as to what, if any, national or international regulation is applicable to space above the atmosphere, where such rockets and satellites will normally be used. This existing legal hiatus can lead to grave international misunderstanding if permitted to continue too long.”
In certain analogous cases this has already happened. Many nations, perhaps most of them, are extremely touchy about foreign objects passing overhead.
Russia, for example, has created serious issues over American weather balloons passing above Soviet territory. She had objected strongly and formally and has even caused the United States to modify its balloon activity. How much the Soviets may object to satellites loaded with observational equipment can only be conjectured. The fact that Russia is cooperating in the International Geophysical Year, or that she may be getting into the satellite business herself, will not necessarily make any difference. The Communists are capable of finding justification for any space projects of their own, especially if theirs should operate at greater distances, while denouncing ours.
Project Vanguard’s satellites, launched from the Florida coast, will circle the globe at distances of about 300 miles. Other missiles have already approached, if not surpassed, this altitude.
But is this area “free space”? Nobody knows because the question of how far “up” the territory of any nation extends has never been settled. How shall the matter be determined? On what basis? And by whom?
All of these problems are beginning to come to a head. Moreover, they relate to many points in addition to that of third- dimensional sovereignty. It must soon be decided. for instance, just what nations mean when they speak of “aircraft,” “airspace,” “atmosphere,” “flight,” “territory,” and so on. Rights of transit will have to be defined and determined, as will the nationality of pilotless aircraft or spacecraft and the liability of parent nations for their conduct.
How “Airspace” Is Governed
In 1910, largely because the French were worried about German balloons drifting into France, an International Air Navigation Conference was held in Paris. It brought out a severe difference of opinion which had developed among the thinkers of the new “air age” on the question of whether flight should be “free” or subject to control by nations over which aviators flew. Generally speaking, the advocates of sovereign control of the airspace by “subjacent” nations won out.
At a similar convention on the Regulation of Aerial Navigation, held in Paris in 1919, not only did the participating nations assert their sovereignty over “airspace” above them, but they insisted that all “aircraft” have a nationality. Aircraft were defined to be craft which depended on atmospheric support for their functioning.
United States representatives attended the 1919 Convention, but this country never ratified the pact. By the Air Commerce Act of 1926, however, Congress asserted exclusive national sovereignty for the United States in the airspace above it and defined aircraft as “any contrivance now known or hereafter invented, used or designed for navigation or flight in the air.”
The latest international effort toward working out rights in space was the Chicago Convention on International Civil Aviation in 1944. Most nations, including the United States, are parties to the Chicago Convention, but Russia, China, and other major Communist countries are not.
The significant part of the Chicago pact says this:
“The contracting States recognize that every State has complete and exclusive sovereignty of the airspace above its territory.”
Aircraft are given all the attributes of nationality by the Chicago Convention. But, and this is important, neither the term “airspace” nor the term “aircraft” is defined in the latter treaty.
Status of Space Today
The present status of space problems may be summarized something like this:
(1) Nations today assume that they have complete sovereignty over the “airspace” above them. In fact, most of them have formally so agreed. But they have not agreed on what airspace is nor how far it extends.
(2) There are no international agreements which specifically limit, define, authorize, or otherwise treat the conduct of nations in regard to outer space devices—i.e., any instrumentality of flight which does not depend on the atmosphere for its functioning.
(3) The question of the nationality and ownership of any device propelled into “free” space remains open. The same holds true in regard to the liability of a nation for the direct consequences arising from its act of putting such a device into motion.
Perhaps it is not possible to settle all these matters with the factual knowledge we now have. Additional scientific information concerning the nature of atmosphere, of outer space, and of the behavior of spacecraft which is free of the earth’s influence, may be needed.
At the same time, much conflict has developed over theories as well as facts.
The basic split lies between (a) those who feel that a more or less arbitrary limit should be placed on national rights in space and (b) those who feel that, until some true world law crystallizes, nations will always control what they can control.
Those in the first category would impose their rule at the upper limits of navigable airspace or thereabouts. This would be the maximum distance at which conventional aircraft, including balloons, can operate. Up to now balloons have not gone much above twenty miles and the altitude record for aircraft (not rocketcraft) is about eighteen miles. Theoretically, though, it will be possible some day to operate aircraft up to about forty miles—and this, roughly, is the sovereignty limit proposed by most arbitrary- limitation protagonists.
Those in the second category argue that sovereignty extends to the limits of “effective control.” In other words, the territory of any given country, according to this idea, extends as far as its military forces are able to govern events occurring over it.
If Nation Able can intercept and destroy the missiles or craft of Nation Baker at a maximum altitude of 300 miles, then 300 miles “up” is the limit of Nation Abie’s sovereignty.
If Nation Baker can intercept the craft of other nations at no more than 200 miles, then 200 miles “up” is the limit of Nation Baker’s sovereignty.
The effective-control theory seems to lead to the possibility that spacecraft, satellites, missiles, platforms, observation posts, way- stations to interplanetary travel or any other device eventually developed by Earth nations, might be operating in a realm of anarchy where the stronger agents would have the sanction of their principals to annihilate the weaker ones.
It is worth noting that certain courts, in the United States as well as in other countries, have insisted in the past that the territorial space of any nation is limited only by its ability to make its law effective. Such decisions as these make the effective-control concept a good deal more than a point of academic interest. They make its eventual extension to space a distinct possibility.
The trouble with the arbitrary-limitation idea seems to be that it lacks realism. Sovereigns today still control to the extent of their ability, if it is in their interests to do so. Demonstrations in point include the recent activity of the Soviets in Hungary and Poland, plus that of Britain and France in Egypt. In short, arbitrary-limitation seems to overlook the fact that space law, like international law, may well develop in accordance with the relative power of nations rather than through master-planning.
The trouble with effective-control is that it springs from poor theory. It limits sovereignty only according to power. Nations with the capability to do so could blast from the skies any object passing overhead, regardless of its purpose. Conversely, other nations could do nothing at all about spacecraft or objects crossing over them. In addition, when we reflect that the earth is a sphere, it becomes obvious that stretching the legal borders of any nation indefinitely into space produces weird results. Such extended borders would not be parallel; they would diverge in space as a “hypothetically infinite funnel of dominion”—something like an upside-down cone projected outward from the earth.
Practical problems of near-space are bound to be more complicated than those connected with the high seas. Proof of their differing severity, for example, shows up in the state of the law regarding rights of innocent passage. “Innocent passage,” in international law, is a doctrine which protects ships which have strayed, been blown, or otherwise forced into territorial waters of nations where they did not originally intend to go. In effect, it permits such vessels to go about their business without interference or incurring liability. It also extends to ships which enter the territorial waters of other nations, intentionally and on peaceful missions, so long as they observe the laws and regulations of such countries.
At the 1919 Paris Convention the innocent passage doctrine was extended to aircraft. However, in subsequent years the right was so hedged with exceptions that it became virtually useless. All nations felt nervous about foreign aircraft going overhead without permission. World War II, with its great emphasis on bombing, dispelled what was left of the idea. By 1944, when the Chicago Convention was drafted, nobody tried seriously to incorporate into it rights of innocent passage or similar transit.
In brief, the innocent passage rule does not exist on a world scale so far as aircraft are concerned. The many “off-course” planes shot down during the East-West “cold war” of the past decade bear eloquent testimony.
Rules for the Future
This brings us to the critical question. What rules for the utilization of outer space are most likely to. develop?
It is widely agreed by international lawyers that the United States, by assuming its present prominent role in the satellite program of the International Geophysical Year, has put the world on notice of its understanding that all space at and beyond the altitude of satellite operation is “free” space. That is, outer space from a range of 300 miles on, in the American view, is not subject to control in any degree by a single nation. The fact that the United States has not attempted to secure rights of passage for its satellite from other nations is taken as proof that this country does not believe such permission is legally needed.
On the other hand, this does not mean that the United States has fixed 300 miles or any other particular altitude as its conception of the beginning of outer space. The exact line of departure has not been suggested by the American government, so it may well eventuate somewhere nearer the earth’s surface. It might be 200 miles, 100 miles, or even forty miles.
The point is that the United States, by its present acts, seems theoretically precluded from later attempting to establish some distance farther away than 300 miles as the beginning of “free” or outer space.
What the Experts Believe
Meanwhile, the President has already asserted his belief that some “reliable” international agreement for controlling missiles in outer space should be sought.
Here is what some of the other leading thinkers in the field are saying:
Oscar Schachter, Director of the General Legal Division of the United Nations:
“Any attempt to extend national territory higher than the airspace is bound to involve difficulties . . . Why not, then, fix the limit at the upper boundary of airspace and no higher? Beyond the airspace we would apply a system similar to that followed on the high seas ... A legal order would be developed on the principle of free and equal use, with the object of furthering scientific research and investigations. It seems to me that a development of this kind would dramatically emphasize the common heritage of humanity and would serve, perhaps significantly, to strengthen the sense of international community which is so vital to the development of a peaceful and secure world order.”
John Cobb Cooper suggests the following: “Reaffirm . . . the Chicago Convention, giving the subjacent state full sovereignty in the areas of atmospheric space above it, up to the height where ‘aircraft’ as now defined, may be operated, such areas to be designated ‘territorial space’.
“Extend the sovereignty of the subjacent state upward to 300 miles above the earth’s surface, designating this second area as ‘contiguous space’, and provide for a right of transit through this zone for all nonmilitary flight instrumentalities when ascending or descending.
“Accept the principle that all space above ‘contiguous space’ is free for the passage of all instrumentalities.”
Andrew G. Haley, General Counsel for the American Rocket Society, former counsel for the Federal Communications Commission and legal advisor to the International Telecommunications Conference, takes the position that the failure of any nation to object to the satellite program of the International Geophysical Year amounts to a tacit world agreement to treat space at the announced satellite distances as “free.” He suggests that this agreement has had actual legal impact and will make difficult any future attempts to assert rights in space above the atmosphere.
C. Wilfred Jenks, Associate of the Institute of International Law, asserts that the astronomical and physical facts of the universe make it impossible for any segment of earth to project its political or legal rights above the atmosphere. And he adds that only those activities “within the atmosphere of the earth would appear to be susceptible of the degree of control similar in general nature to that which can be exercised in territorial waters or over a wider maritime frontier belt . . .
Practice vs. Theory
At present there is no way of knowing if any nation or group of nations is disposed to adopt a liberal view of “free” space, officially, in the near future.
There can be little doubt that most countries, if faced with an immediate threat, would probably react in such a way as to give strength to the advocates of the effective- control doctrine. They would probably assert complete sovereignty “upwards” to whatever height the nature of the threat demanded.
At least, this has been the historical reaction of neutral nations when faced with the problem during a war. In the early days of World War II, both Holland and Belgium took vigorous action to keep belligerent aircraft from passing over their territories. They scoffed at German arguments based on the proposition that any air machine flying higher than three miles was as free to go where it pleased as an ocean-going vessel sailing beyond the territorial limit of one marine league.
Sweden and Switzerland behaved similarly during World War II. They not only interned downed aviators and lost aircraft, but they actually sent their own forces into action to stop planes from flying over them.
Nor is there any guarantee that the United States position would be any different. What happens, for instance, if Russian-launched satellites begin photographing the United States with some futuristic “souped up” camera capable of recording minute details from extremely high altitudes? American law forbids the photographing of certain government installations from above, regardless of height. Would Russian satellites be in “free” space if that situation developed?
Yet, all in all, a positive element can be detected in the current confusion.
It rests with the observation that much of the dissension among authoritative parties, at least so far as the United States is concerned, is directed to details rather than broad issues. At the same time, and in spite of the way international law has developed in the past, in spite of the fluid state of current law, there appears to be a surprising unity of thought in regard to certain principles that ought to apply.
It is a unity demonstrated by the recent acts and attitudes of American officials as to policy—and by ranking logicians as to law. It is a unity which, in effect, seems to say:
The doctrines forged for the sea by Decatur are the doctrines best suited for space!