INTERNATIONAL LAW AND HIGH ALTITUDE FLIGHTS: BALLOONS, ROCKETS AND MAN-MADE SATELLITES

By Bin Cheng1

"A mystery wrapped in an enigma," Sir Winston Churchill's aphorism about Russia, was recently borrowed by the United States Secretary of State John Foster Dulles to describe the position of high altitude flights in international law. This was at a news conference held two days after the United States had received a protest from the Soviet Union against the flight of balloons, released by United States military organs and other organisations, over Soviet territory.

2

As the United States reply of February 8, 1956, recalled, details of a United States Air Force meteorological survey, which had already been in progress for two years and commonly known as "Moby Dick," had been given in a Department of Defence News Release on January 8, 1956. Large plastic balloons, "in effect miniature 'satellites," "the New Release (Ños. 9-56) stated, "will carry meteorological instruments, including cameras and radio equipment to record and telemeter atmospheric information" above 30,000 feet. Apparently, some 4,000 balloons had already been released, mostly in the United States, but, with the cooperation of other governments, also from Brazil, Panama, Scotland, Japan and Okinawa. The announcement ended by saying that additional research stations would be opened in Europe, Alaska and Hawaii during 1956. A corresponding announcement was made in Oslo on February 3, 1956, giving details of forthcoming Norwegian participation in an international programme of meteorological research, which included the use of large balloons carrying 400 lbs. of instruments, including photographic apparatus, round the earth's surface at an altitude of 80,000 to 90,000 feet. Since it was estimated that the balloons would most likely land their instruments somewhere in the Pacific area, they were evidently intended to take advantage of the powerful high altitude jet streams which regularly blow in a west-east direction in the Northern Hemisphere and expected to traverse the airspace of countries between Norway and the Pacific.

The European part of the programme was, however, quickly cut short by the Soviet protest to the United States on February 5, 1956. This was followed by a further note of February 18, in which the Soviet Government charged the United States with attempted aerial photography of Soviet territory. Meanwhile, protests to the United

Reprinted from The International and Comparative Law Quarterly (London) July 1957, pp. 487-505. The author is Ph. D., Licencié en Droit, Lecturer in Laws, University College, London.

2 The writer is indebted to the U. S. Information Service, London (U. S. I. S.) for an extended report of the news conference, as well as other relevant documents.

3 The Times, February 4, 1956.

This charge had previously been made verbally by Soviet spokesmen at a Press conference held in Moscow, on February 9, 1956.

States Government were sent by Albania, Bulgaria, the Communist Chinese Government, Czechoslovakia, the Eastern German Government, Hungary, Mongolia, Poland and Rumania, while the Soviet Government protested also to the Federal German Government and Turkey. Representations were also made by Sweden to Norway and the United States. In addition, some Eastern European countries lodged complaints against the United States with the SecretaryGeneral of the United Nations and the European Office of the International Civil Aviation Organisation.

In their replies of February 8 and 11 respectively, both the United States and Turkey undertook, in view of the Soviet objection, to suspend provisionally the further release of meteorological balloons which, on the basis of known data, might cross into Soviet territory. But Mr. Dulles, in his Press conference on February 7, 1956, maintained that, although there was no clear rule of international law on the subject, the United States felt that it had the right to send these balloons. He said: "We would be disposed to be respectful to the strong views of any country which was opposed to it. *** We would do this, not as a matter of their right but as a matter of decent, friendly relations."

Soviet writers have not, however, been slow in pointing out that, in its official communications, the United States has not asserted any strict right of one State to fly such balloons into the airspace of another State. Indeed, notwithstanding what has just been mentioned, the whole emphasis of Mr. Dulles's Press conference was on the obscurity of international law on the subject of high altitude flights by balloons and artificial satellites."

This studied hesitancy on the part of the United States Secretary of State on the legal position may perhaps be interpreted as a euphemistic admission that the United States did not have an absolute right to fly these camera-carrying balloons over the territory of another State. The Soviet allusion to the possibility of the tables being turned, even though it was in respect of propaganda balloons, probably did not pass unnoticed. Here it is worth pointing out that, because of the relative geographical position of the Soviet Union and the United States, the west-east direction of the jet streams in the Northern Hemisphere, and these jet streams being strongest in the North Pacific, the United States is in a much more vulnerable position than the Soviet

5 See Keesing's Contemporary Archives, 1955-1956, 14723A.

In its reply of March 12, 1956, to the Swedish representation of March 6, the United States Government referred to its previous announcement of January 8, and stated that since early February, 1956, no balloons had been launched which might pass over Swedish territory. A State Department statement issued on March 12, 1956, disclosed that "the reply stated that the United States had carefully considered the objections of the Swedish Government and expressed [the] hope that the latter's concern had now been met" (U. S. I. S., Daily Wireless Bulletin (D. W. B.), March 13, 1956, p. 3).

As to the warning issued by the Austrian Minister of the Interior, see The Times, February 6, 1956.

7 Kislov and Krylov, "State Sovereignty in Airspace," 3 International Affairs (MoscowMarch, 1956), p. 35, at p. 43.

se. g., "The question of the ownership of the upper air is a disputable question, and also of the ether above the air"; "The legal position is quite obscure"; "What the legal position is, I wouldn't feel in a position to answer, because I do not believe that the legal position has even been codified"; "There is no clear international law on the subject." Indeed, his first answer in this connection was: "I wish I could tell you" what was the position under international law, of balloons and circling satellites. To be historically accurate, however, it should perhaps be mentioned that his reference to his international law "getting a bit rusty" related to the position of radio broadcasts and not balloons, contrary to what a reading of the report in The Times of February 8, 1956, may suggest.

Note of February 5, 1956.

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Union in regard to balloon flights, whether for aerial reconnaissance or other purposes in time of peace or offensive operations in time of

war.

The United States in fact had a foretaste of balloon warfare towards the end of the Second World War. In the period of a few months, some 900 to 1,000 Japanese paper balloons, armed with incendiary and anti-personnel bombs, reached the United States almost as far east as Detroit.10 Yet these were much inferior to modern balloons which, made of low-cost polythene, measure, in the larger models, some 164 feet wide and 230 feet high, carry in their gondolas a payload of up to 1,500 lbs. and can easily circumnavigate the globe. The course of their flights round the world, while not truly controllable, is fairly predictable thanks to the regular pattern of behaviour of the jet streams which carry them forward at speeds varying from 50 to 300 miles an hour. From the military standpoint, their cost of a few thousand dollars is next to nothing compared with the $8 million for a B-52 jet bomber, and they share with ballistic missiles the inestimable advantage of not having to be manned. Both balloons and rockets will no doubt be adaptable for the delivery of the recently developed pocketsize thermonuclear weapons, once accuracy is achieved." These considerations throw into perspective the more serious side of the diplomatic storm which raged round these balloons, in addition to the obvious desire to exploit the incident for the purpose of political propaganda and discrediting President Eisenhower's "open sky" plan of aerial inspection,12 and these considerations must be taken into account in gauging the general attitude of States-which, after all, are the law-makers in the society of nations-towards the law of high altitude and space flights.

As regards space vehicles, the ultimate instrument of robot warfare, they will move freely in the upper atmosphere or outer space, while targets on the surface of the earth will revolve mechanically, inexorably and inescapably into their line of vision and fire. It is perhaps not surprising, therefore, to find that a recent publication in the Soviet Union, Thoughts on Air Strategy, ends with the reflection that: "Today's giant air bases will become bomber cemeteries in a future war." 13 The significance of this observation need hardly be stressed, as it is reputedly from the weighty pen of Grand Marshal Pavel F. Zhigarev, who was for many years Commander-in-Chief of the Soviet Air Force until he was transferred in January, 1957, according to unconfirmed reports, to take charge of the Soviet air line, Aeroflot.14

10 See "What the 'Balloon Scare' Is All About" The United States News and World Report (February 17, 1956), p. 27.

ú On February 20, 1957, the United States Secretary of Defence Charles E. Wilson announced that "nuclear capability will * be incorporated into our surface-to-air defence systems, including Nike-Hercules and Talos," i. e., two types of guided missile (U. S. I. S., February 20, 1957).

12 Cf. "Aerial Inspection Plan and Air Sovereignty," 24 Geo. Wash. L. R. (1956), p. 565. 13 See "The Last Weapon But One," XI (3) Aviation Week (1956), p. 190; cf. also the remarks of Dr. Wernher von Braun, development operations chief of the U. S. Army Ballistic Agency, to the Association of the U. S. Army at Washington's Sheraton-Park Hotel, on October 26, 1956, XI (12) Interavia (1956), p. 967: "Satellites As Weapons." See also F. I. Ordway, "The Surface-to-Surface Missile, Today and Yesterday," ibid., p. 974, and F. Romano's paper read before the 7th International Astronautical Congress in Rome in September, 1956, The Times, September 20, 1956.

14 It is significant that the recent statement of the British Government on defence, which announced the "biggest changes in military policy ever made in normal times," pins its faith entirely on the development and use of ballistic missiles.

"FLIGHT CRAFT" AND "FLIGHT SPACE"

What then is the position of high altitude flights by balloons, rockets and man-made satellites in international law? Consideration must first be given to the legal régime of the airspace and the outer space, which together may be called flight space,15 while the term flight craft may be applied to all devices capable of flying in flight space. The former term is, in this context, to be preferred to airspace because flight may be conducted, or at least may shortly be conducted, in space where there is no air, or too little air to justify the use of the term airspace.16 The introduction of the term flight craft also appears justified, because a widely accepted definition, used, for instance, in the Annexes to the Paris Convention for the Regulation of Aerial Navigation of 1919 and the Chicago Convention on International Civil Aviation of 1944, limits aircraft to "any machine which can derive support in the atmosphere from the reactions of the air." This definition of aircraft sensu stricto, while it includes both instruments which are lighter than air, like balloons and airships, and those which are heavier than air, like gliders and aeroplanes, does not apply to devices such as rockets, earth satellites and other space vehicles. Even though they may perhaps fall within a sensu lato definition of aircraft as used in certain systems of municipal law," the term flight craft has the advantage of obviating any ambiguity.

PHYSICAL STRUCTURE OF FLIGHT SPACE

Physically speaking, flight space, which means space in which flight is possible, denotes (a) airspace and (b) outer space. Airspace is space where air is normally to be found 18 and is, therefore, identical with atmospheric space. Each planet or star that possesses an atmosphere thus has its own airspace, each airspace being coextensive with the corresponding atmosphere.19 Outer space or interstellar space means space between the innumerable planets and stars, beyond their respective atmospheres where these exist. The line of demarcation between terrestrial atmosphere and the outer space is at present still controversial among geophysicists, some of whom even doubt whether it can be defined at all, but views have been put forward that

15 See Cooper, Air Law: Subject Matter, Terminology, Definition, 1951, p. 13; Alex Meyer, Legal Problems of Flight into Outer Space, 1952, pp. 4 et seq.

18 Prof. Josef Kaplan, Chairman, U. S., National Committee, for the International Geophysical Year (I. G. Y.), disclosed, on September 11, 1956, in a paper read at the Barcelona conference held to make final preparation for the I. G. Y. (reprinted, in part, under the title "The I. G. Y. Rocket and Satellite Program," XI (12) Interavia (1956), p. 933), that the first U. S. earth satellites to be launched in 1957 from the east coast of Florida at Cape Canaveral will be spherical in shape, about 20 inches (50.8 cm.) in diameter, weighing approximately 21.5 pounds (9.8 kg.). It will revolve about the Earth in an apparent latitude range of about 40 degrees of either side of the equator and will move in its elliptical path from between 200-300 to perhaps 800-1,500 miles (320-485 to 1,300-2,400 km.) from the Earth.

17 See the writer's "Recent Development in Air Law," 9 Current Legal Problems (1956), p. 208, at pp. 211-212.

18 See ibid., pp. 210 et seq.; cf. contra Cooper, "High Altitude Flight and National Sovereignty," 4 International Law Quarterly (1951), p. 411; see, however, his "Legal Problems of Upper Space," Proceedings of the American Society of International Law (1956), p. 85, at pp. 87 and 91.

19 Cf. G. P. Kuiper (ed.), The Atmospheres of the Earth and Planets, 1949.

it lies roughly somewhere between 500 and 1,000 kilometres, i. e., between 310 and 620 miles.20

LEGAL STATUS OF FLIGHT SPACE

As to its legal status; flight space may again be divided into (a) airspace and (b) outer space. Airspace itself may be sub-divided into (i) airspace above State territories (i. e., national airspace), (ii) airspace above the high seas, and (iii) airspace above terra nullius, both terrestrial and extra-terrestrial. It does not seem disputed today that each of these three types of airspace partakes of the status of the subjacent surface territory.

As regards the legal status of outer space, it seems slightly dogmatic at present to assert that it "is and must always be a res extra commercium incapable of appropriation" " like the high seas. It has, in this connection, to be remembered that the freedom of the high seas is not based on any transcendental logic. As Professor Jennings said, "any student of the history of international law knows that the establishment of the rule of the freedom of the seas was not brought about merely by Grotius's assertion of it, but also as the result of a long and complicated historical development which eventually made it the acceptable rule for maritime States at a time when they were strong enough to impose it." 22 In other words, the freedom of the high seas is an agreed status, and no such consensus of States, which is, after all the real basis of international law,23 can be said to exist in respect of outer space, inasmuch as States have hardly begun to bring their mind to bear on this problem.24 No lex lata exists until general consensus of States is achieved either tacitly by way of a custom or expressly through an international treaty. In the development of the law of outer space, States will be free to agree to any one of the following solutions: (a) lowering of the upper limit of their national airspace, (b) extension of the upper limit of national airspace to a given height in outer space, (c) declaring the whole or parts of extra-terrestrial space res nullius, (d) treating the whole or parts of it as res extra commercium, or (e) creation of an entirely new régime

20 See loc. cit. in note 15 above, pp. 213 et seq., and authorities cited therein. Lt. D. M. Draper, Jr., U. S. N. R., in his Satellites and Sovereignty," believes that the margins are between 10,000 and 18,000 miles (The J. A. G. Journal (September-October, 1956), p. 23); Mr. P. K. Roy, Head of the Legal Division of the International Civil Aviation Organisation, is of the view that the margins are between 1,500 and 60,000 miles (50 A. S. I. L. Proceedings (1956), p. 94).

a Jenks, "International Law and Activities in Space," this Journal, Vol. 5 (1956), p. 97, at p. 104; Alex Meyer, Legal Problems of Flight into the Outer Space, 1952, p. 7; cf., however, Cooper, "Legal Problems of Upper Space," loc. cit. in note 16 above, pp. 90 et seq. 22 "Some Aspects of the International Law of the Air," 75 Recueil La Haye (1949), p. 509 at p. 584, note 1.

23 P. C. I. J.: The Lotus (1927), Ser. A, No. 10, p. 18.

24 A report on the subject was submitted to the 10th Session of the Assembly of the International Civil Aviation Organisation, the membership of which now numbers 70. The Soviet Union and a number of the Eastern European countries are not members of the I. C. A. O.

Cf. also the useful discussion on the subject by the American Society of International Law, 50 Proceedings (1956), pp. 84 et seq.; the matter was also raised at the 47th Conference of the International Law Association meeting at Dubrovnik in 1956 and is being studied by the Air Law Committee of that Association. Furthermore, two papers were read, one by A. A. Cocca (Argentina), the other by A. G. Haley (U. S. A.), on the legal aspect of space travel at the 7th International Astronautical Congress held in Rome, September, 1956. See also W. R. Sheeley, "Remarks on Space Law," 17 Alabama Lawyer (1956), p. 370.