DECATUR'S "DOCTRINE"-A CODE FOR OUTER SPACE?1

By Philip B. Yeager and John R. Stark

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 areas 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.

1 Reprinted from United States Naval Institute Proceedings, Sept. 1957, pp. 931-937. Philip B. Yeager, A. B., LL. B., is special consultant, Committee on Astronautics and Space Exploration, U. S. House of Representatives. John R. Stark, practicing attorney New York City, was formerly an economist, U. S. Bureau of the Budget, and economic and legal adviser, U. S. Dept. of Labor.

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 Interplanatory Communications.

Some of the less well known scientific development, 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 observation 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 find

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ing 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 Able'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, waystations 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 effec