of the individual's "right" to depart from such confines. Grotius taught that in the absence of an express prohibition, or a custom to the contrary, having the force of a convention, the right to emigrate could be fully and freely exercised. He asserted that whoever submits to a government does so solely for his own good and based the rule of freedom of emigration on the natural obligation of preserving oneself. Puffendorf held that members of a society ought to be permitted to retire to any place in which they hoped to better their circumstances. Even before the times of these publicists, Vitoria taught that people have the right to travel to any lands they desire subject to the restriction that they must not do harm to the natives residing therein. Vitoria based his assertion on a recognition of "natural society and fellowship" and the idea that "everything is lawful which is not prohibited or *** injurious or hurtful to some other being." Historical Emigration Law

While authorities are divided on the question of the King's right in the earliest days of common law, to restrain a subject from leaving the realm, the fact remains that travelling abroad was one of the activities carefully supervised in early times to prevent subjects from becoming "infected" with foreign and new and hence presumably dangerous ideas. This policy was effectuated by resort to the writ of ne exeat regno by which the king commanded a subject not to go out of the realm. The writ under one name or another is used in many countries at this time but is generally restricted to cases of equitable debts and claims. An early English law proscribed the sending of children out of the country for the purposes of attending Catholic Seminaries. This law was subsequently broadened to prohibit such religious adherents from leaving for any purpose.

The doctrine of free egress was brought to America by the Colonists who adhered to Blackstone's theory that English subjects had the right to come and go as they pleased unless a royal injunction had issued against them. The Articles of Confederacy of the American Southern States provided for free ingress and egress to and from any state for all free inhabitants, excluding only "paupers, vagabonds and fugitives from justice." While the American Constitution says nothing explicit concerning freedom of international travel, Article IV, Section 2 does guarantee freedom of travel within the limits of the United States.

SOME RESTRICTIONS ARE NECESSARY

Who then should be denied egress to space? Paradoxically, the first to be excluded are those who would exclude others for any political reason, because their moral make-up obviously would be inimical to the concepts of fundamental justice upon which space law must be founded. We would also exclude the "nefarious" according to the original Roman law meaning of the word. As the welfare and happiness of all passengers must be of paramount importance, the ultimate decision as to who might be included in the complement of any particular voyage would undoubtedly rest with the passengers as a body.

Another basis for restraining those who may explore space at least in the beginning might well depend on the purpose of the emigration.

Thus permission might initially be granted only to space technicians much in the same manner as permission to travel is currently restricted to various persons such as reporters, nurses and so on in time of unrest in the terrestrial areas sought to be visited. Also, travelers in Europe immediately after the war were restricted due to the shortage of food and overtaxing of transportation facilities. For a while it may be necessary to limit travel to planets for similar reasons, e. g., g., shortage of oxygen and food.

Uniform Principles Needed

The publicists and statesmen of the world must arrive at a new and uniform set of legal principles for space travel. The necessity for rudimentary solutions of initial problems is now on us. The launching by the USA and the USSR of earth orbiting unmanned satellites in connection with the International Geophysical Year is legally possible for the sole reason that no nation has voiced objection, although the satellites in describing their orbits may violate the municipal law of half a dozen nations. Indeed, the International Civil Aviation Convention forbids the unauthorized passage of pilotless aircraft "over the territory of a contracting state."

Groups Sense Problem

A few of the government-maintained international organizations have displayed commendable interest in the problems of space travel. The International Civil Aviation Organization at Caracas in June 1956 recognized the need for the study of space law by that Body; the International Radio Consultative Committee only recently at its Plenary Assembly in Warsaw voted associated membership to the International Astronautical Federation on the basis of its petition to inaugurate a study of space communications; UNESCO has sent a representative to this IAF Congress; subject to the decision of the General Conference at New Delhi, November next, UNESCO has recommended Observer status for the IAF, and so on. Slowly, but surely, the international nature of space travel regulation is being recognized. The administrative groups of many of the private international scientific organizations look at astronautics with a certain amount of timid horror, but these groups are being shocked into interest by robustious and learned members who recognize in astronautics one of the truly great challenges of civilization.

As there exists no body of statutory or case law appropriate for space travel, and as all problems in connection therewith are international in nature, an international formulation of space law must evolve.

Duties of International Body

This probably will come about in the usual hit and miss pattern. Finally, someone will object to the IGY satellites, or bigger and better non-IGY satellites will be launched and we will hear threats of war. The United Nations will have a look at the issues presented, or new multilateral treaties may be considered. In time piece-meal and stop-gap solutions will be adopted. But the problems will mount inexorably and the community of nations will be forced to take steps to create a body of space law.

At first we may hope only for an international body authorized to promulgate uniform regulations relating to take-off and landing procedures, and for the general safety of the people of Earth. Initially space vehicles will be owned by nations or groups of nations and extention of international regulation will be fought jealously. But gradually and inexorably traffic will increase, new propulsive systems will be found which will reduce the cost of construction and operation, commercial enterprise will demand access to space, emigration will commence, meteorite mining will become an industrial objective, and all the ancient problems of law will be reasserted under vastly more complicated circumstances.

Old Problems Return

Again there will arise in a new frame of reference problems of neutrality and belligerency, of nationality, domicile, statelessness, internment, asylum, sequestration, blockade, hovering, extraterritoriality, embargo, reprisal, boycotts, expropriation, piracy, contraband, customs, prize proceedings, emigration, immigration, mandates, colonies, tortious violations, civil claims, venue, jurisdiction and so on. It may be too much to hope that civilization will contain these matters, a view which is cynical in an ultimate sense, because lack of containment would project our destructive forces and philosophies throughout the Universe. We cannot share this view as we believe space exploration and settlement will dignify and enrich mankind, erasing forever devastating economic problems and affording vistas of the mysteries of creation immeasurably more challenging and interesting than we now conceive of, and so engender a measure of tolerance and compassion that man will rise above his past. The good solutions may come only after another great war which will arise over the very problems of containment.

Even as the great chancellor of England wisely speculated in "Utopia" on the attributes of a justly-governed community of civilized people, we have the temerity to speculate briefly on the source of space law during the coming Space Age.

UNIVERSAL ORGANIZATION TO GOVERN SPACE

In time there may be created on earth an independent and sovereign Authority of which every human being would be a citizen by virtue of his existence and to which all nations would surrender their sovereignty to the extent that no nation as such might own or operate a space vehicle, free maneuvering, or otherwise, without a license from such Authority, and an agreement to conform to the regulations issued by such Authority. In no case might a license be unreasonably withheld. Private citizens and concerns would be eligible for similar licenses. The Board administering the Authority would be constituted on the fairest basis then known to mankind.

Rules for Exploration

The Authority would have the power and resources in space in cooperation with lunar and other planetary authorities to contain violence and to administer and enforce regulations relating to safety, sanitation, health, asylum, equipment, navigation, emigration and immigration, all of which regulations would conform to the most uni

versal and enlightened principles of freedom and the use of property and the Authority would promulgate a code defining public and private liability for damage.

The regulations would be interpreted and justice administered by a court constituted within the Authority but answerable only to itself. The Authority would provide positive safeguards for the protection of the inhabitants of other worlds, the basic principle being that there may be no visitation whatsoever of any inhabited area until intelligible contact will have been made and the Authority is satisfied that no physical or psychological hazard exists to either the explorer or the explored.

The jurisdiction of the Authority would extend over the surface of the earth and over earth space ships while maneuvering in free space. From the beginning colonialism would be forbidden, and the lunar and planetary communities would be independent-thus projecting into space, free and enlightened groups of human beings, spiritually conditioned to face the problems of carving out new living space from new land.

ACKNOWLEDGMENT

We have not burdened this paper with footnotes or annotations. Detailed references as to any point will be supplied by the author on written request. This paper is a severe abstract of a study under preparation by the author. The references to Dr. Welf Heinrich, Prince of Hanover (Hanover), are to his Air Law and Space, thesis submitted to the faculty of law and political science at the Georg August University, Göttingen, 1953, and to personal interviews. The references to Vitoria and Suarez are from the works of Dr. James Brown Scott and the archives of the Carnegie Institution and Georgetown University, Washington, D. C. The author is also indebted, as noted in the text, to: Arthur C. Clarke; John C. Cooper; Colonel William O. Davis; Heinz Haber; Green Haywood Hackworth; C. Wilfred Jenks; Lloyd Mallan; Alex Meyer and Harlow Shapley.

PROJECTING THE LAW OF THE SEA INTO THE LAW OF SPACE 1

Rear Admiral Chester Ward, USN

Rear Admiral Chester Ward, USN, The Judge Advocate General of the Navy, delivered an address before the American Rocket Society at its eleventh annual meeting on November 27, 1956, at New York City. In view of the interest which has been expressed in the address, it is being published in this issue of the JAG Journal. Commander Merlin H. Staring, USN, and Lieutenant Horace B. Robertson, Jr., USN, assisted in research and in preparation for publication.

In reading the newspapers from day to day, I am constantly amazed at our rapid progress in space navigation. To a layman in this field, the accomplishments of today and the predictions of things to come are a constant source of astonishment. It appears that the plans for the space satellite are in their final stages. There is every reason to believe that the project will succeed. On August 6, 1956, Dr. Donald H. Menzel, Director of the Harvard Observatory, predicted that interplanetary travel by manned vehicles would follow within a decade. Such predictions as this are made by men with their feet on the ground. Their thoughts and imaginations, however, are not bound by conventional thinking or by the pessimism of the doubting Thomases. Such predictions drive home, to lawyers like myself, the necessity for some advanced thinking of our own.

Our chairman for today, the distinguished John Cobb Cooper, recently stated:

"Today neither lawyers nor governments are prepared to state the legal flight rules applicable to presently operating rockets and planned satellites. For the second time in the present century science and engineering have far outstripped the law." 2

This problem is a serious one. My own personal view, however, is that the problem is not yet one primarily for the lawmakers.

It is a fundamental principle of lawmaking that you cannot legislate without facts. That principle applies just as well to the law of space as it does to the law that governs our actions here on the surface of the earth. It would be futile for a state legislature to attempt to draw up a state highway code without knowing the performance characteristics of modern automobiles and trucks. The legislators would have to know the ability of modern drivers and the driving hazards of the highway system. It would be just as futile for us to try to draw up a code of laws to govern relationships in space without an accurate knowledge of the conditions that exist there.

1 Reprinted from The JAG Journal, March 1957, pp. 3-8.

2 Address before the American Society of International Law, April 26, 1956.