Assuming that the essential validity of the air sovereignty doctrine is measured in terms of political and economic requirements, assuming further that these elements are quite distinct from any space or other physical classification and do, in fact, indicate a relatively low ceiling at which the limits of air sovereignty may be fixed, the task of selecting and defending that point of separation between national air sovereignty and free outer space, still remains to be undertaken.

In selecting a mathematically precise point, the risk is that, since such a point must be justified, it will be argued that when the reasoning which gave rise to this selected point changes, the limit itself ought to change. As has been indicated, already, this is considered to be undesirable since the law must be able to deal with a standard which admits of reasonably knowledgeable definitions. The territorial sea limit is a good example. It is a good example because, although it was originally thought to have been based on the shot of cannon, it has been pointed out that such was not the case, that no cannon could actually shoot to such a distance at the time the rule was advanced, and that the increase in the range of weapons was, therefore, not decisive in support of an argument for extension of the marginal sea belt.79

A limit there must be. It is dangerous to attempt to choose and defend such a limit but it is done on the ground that a definable limit must be present so that activity may go forward within a given frame of reference. The premise of this paper is that it should be the minimum which protects the economic and political integrity of the subjacent state, i. e., it should not be so low as to subject any state to greater commercial interference or military danger than now exists. A minimum rather than a maximum is chosen so that the greatest possible freedom in space may be allowed and because a consideration of the maximum will inevitably involve unknown factors which it is the purpose of this paper to overcome.

An altitude of 30 miles is, therefore proposed, not because there is anything inherently magic in this figure but only because it fulfills the minimum requirements mentioned above. It allows an area of sovereign control which produces the same economic and commercial status which exist at present and, as regards political and military considerations, it is felt that the present state of world weaponry is such that no additional risks result from this proposal which are not already present. We, therefore, accept the fact that traditional ideas of military security are obsolete.

The limit is chosen most arbitrarily, based only on the economic and political considerations stated above. It is not intended to be in any way dependent upon the properties of space or air or atmosphere or flight or flight vehicles because, it is here argued, none of these factors bear any significant relationship to the doctrine of air sovereignty. Space above 30 miles would be free to all commercial, military, and scientific users of whatever nation. One exception to this complete freedom is made. In the event of armed conflict, a subjacent neutral state must have the legal right to insist that the space above it, to an altitude of 300-400 miles, be not used by the combatants against each other. If this appears to be an illogical exception, it is defended on the ground that the proposal in this paper

Baxter. R. R. "The Territorial Sea" Proceedings of the American Society of International Law, 50th Annual Meeting, Wash., D. C., 25-28 April 1956, pp. 116, 119.

is aimed at a time of peace, it being assumed that a war in our age of technology will not take heed of legal distinctions in levels of space. We must look to the use of space in time of peace and assume that any plan which purports to be applicable in time of war, produces a dimension of planning which is impossible to anticipate in our current and projected technological era.

V. CONCLUSION

In considering only the question of air sovereignty and its effect on travel in outer space, this paper has only touched the surface of the general area of legal problems which will be presented by man's first controlled activity in outer space. His personal status, torts and contract implications while abroad space craft or while at satellite stations, jurisdiction over crimes, interference with communications and the acquisition and demonstration of control in the territory of other planets, to name but a few 80 all flow from successful travel into space. These problems are extensive in themselves but no attempt has been made to discuss them, not because they lack importance but because the aspect of the problem which has been presented is fundamental to any legal considerations about activity in outer space. Until this has been resolved to the satisfaction of the nations of the world, discussion of other problems will necessarily be immature for, unless legal justification for the use of outer space, and hence some modification of the existing doctrine of national air sovereignty is accomplished, no activity in this area can even commence, let alone generate the problems which a more advanced study would certainly reveal.

If the author stands alone, and it would appear that he does, then, in summary, it should be made clear that the following proposition has been developed and defended: sovereign hegemony in the air is justified in order to preserve the internal and external integrity of the subjacent State. When this guarantee, in terms of all relevant factors is present, then the doctrine of sovereignty has exhausted its force and reason for existence, with the result that the air, like the sea, must be free to all, who have the foresight and inventiveness to use it. Herein the whole approach to the problem has been to provide the required integrity for the interested State in terms of standards most directly relative to that integrity, namely economic prosperity and national security. This task finished, we conclude all remaining space must be free to all.

81

Activity in space has begun and the law remains in a state which, if literally interpreted and applied, could by several applications, stop any attempt to travel into space for any purpose. It has been the aim of this paper to demonstrate what is the most basic obstacle in the international community of nations to space activity, and to suggest and explain a possible solution.

80 Jenks, C. W. "International Law and Activities in Space" 5 Int'l & Comp. L. Q. 99, 110 (1956). For a "tongue in cheek" discussion of these ancillary problems, see Hogan, J. C. "Man and Law in Space" 61 Case and Comment #6, Nov.-Dec. 1956 p: 12 at 14. 61 The phrase has been used at a much earlier stage in history but somewhat in the same context: "The use of the sea and air is common to all "Elizabeth, Queen of England, to the Spanish Ambassador (1580). Quoted by Draper, D. M. "Satellites and Sovereignty" JAG Journal Sept.-Oct. 1956, p. 23.

RELATIONSHIP OF THE UNITED NATIONS TO OUTER SPACE1

Several events in recent months have shown that the time is near when the invasion of outer space will be practical and agreement about its use and control will be a real problem. The International Geophysical Year has intensified the development of the earth satellite, and the launching of experimental models is scheduled for the current year.

In the summer of 1956 the Assembly of the International Civil Aviation Organization, meeting in Caracas, called for early consideration of the problem. The President of the United States has stated officially that the United States "is willing to enter any reliable agreement which would * * * mutually control the outer space missile and satellite development * * *2 In January 1957 the United States placed this problem before the United Nations, as a part of its comprehensive proposal for the control of armaments. Referring to "earth satellites, intercontinental missiles, long-range unmanned weapons, and space platforms," the United States representative said: "The first step toward the objective of assuring that developments in outer space would be devoted exclusively to peaceful and scientific purposes would be to bring the testing of such objects under international inspection and participation."

Problem

The use of outer space by either satellites or ballistic missiles is almost certain to be an added threat to world peace, and hence to the security of the United States. A broader but less vital problem is the threat to the free use of that space. The purpose of international control, therefore, is primarily to assure the peaceful use of outer space; a secondary purpose is to assure the free use of that space by all nations. Contemporary air law does not cover flight instrumentalities such as rockets, satellites, and other spacecraft when they are in "outer space.

While the scientific uses of the earth satellite are being stressed at the present time, there is no doubt whatever that it will have warlike potentialities when fully developed. These are of four kinds: (a) The surface of the earth can be observed in astonishing detail for the purpose of target identification. This is important to both the strategic offense and the strategic defense. (b) Defenses can be breached by jamming the radar signals that currently protect the major powers

In Strengthening the United Nations. Commission to Study the Organization of Peace, Arthur N. Holcombe, Chairman. New York, Harper & Brothers, 1957: pp. 216-220. President Eisenhower's "State of the Union" message, as quoted in The New York Times, 11 January 1957, p. 9.

Ambassador Henry Cabot Lodge, Jr., addressing the Political Committee of the U. N. General Assembly, as quoted in The New York Times, 15 January 1957, p. 4.

John C. Cooper, "Legal Problems of Upper Space," address delivered before the annual meeting of the American Society of International Law, Washington, D. C., April 26, 1956, privately reproduced, p. 3.

from surprise attack. National fences could thus be knocked down all over the world. (c) Psychological warfare can be carried on more effectively because it will probably be impossible to jam the signals emanating from a satellite. (d) A manned space platform is theoretically possible and missiles could be launched from such a vehicle, although perhaps with no more effectiveness than from land. Alternative Policies

To achieve the purpose of international control over outer space, what are the alternative policies that might be proposed?

(1) Place control in the hands of individual states. Contemporary air law applies to "activity in the gaseous air with machines requiring support from such air," and states have jurisdiction over the airspace directly above their territory. This doctrine might be extended upward to include space beyond the atmosphere indefinitely, or to include only that distance upward which the most advanced state is able to control at any given time. This alternative seems

entirely impractical for obvious physical reasons.

(2) Place ownership and operation of all or certain types of spacecraft in an international agency, presumably the United Nations. Only in connection with a thoroughgoing system of international control over armaments, including international inspection and a police force, would this alternative seem to be politically practical. It should not be considered separately from the crucial question of international inspection which is now under discussion.

(3) Registration of all or certain spacecraft with the United Nations, plus notification and verification of each flight well in advance. This would involve inspection by the UN (or its subsidiary international agency) in order to verify the peaceful nature of any flight." Recommendations

(1) That the principle should be accepted that outer space is not subject to ownership or control by individual states but only by the international community, represented by the United Nations.

(2) That alternative 2)-international ownership and operation of all or certain types of spacecraft-be adopted as the long-run goal of United States policy.

(3) That alternative 3)-international registration of spacecraft and verification of flights-be adopted as the short-run policy of the United States regarding earth satellites, but only after more than one nation has launched such a satellite.

(4) That the missile which is designed to travel in outer space, but not in an orbit, be treated as any other piece of armament. It would therefore be handled by any program of arms control that may result from current and future international discussions.

(5) That the international agency administering the registration, inspection, and verification function recommended here should be a branch of whatever international body may be agreed upon to carry out arms control as a whole, and should share in the powers of enforcement granted to that body.

Wernher von Braun, "Missile-Carrying Satellite," in Missiles and Rockets, November 1956, p. 31. John C. Cooper, "Air Law-A Field for Internatoinal Thinking," in Transportation and Communications Review, Vol. 4, No. 4 (Oct.-Dec. 1951) at p. 6.

Compare the suggestion of Myres McDougal in American Journal of International Law, Jan. 1957, p. 77.

Reasoning Behind Recommendations

(1) Missiles that do not travel in an orbit-such as the Intercontinental Ballistic Missile when it is perfected-can be considered simply as extensions of the long-range gun, different in degree but not. in kind. The fact that they pass through outer space at one stage in their flight is not a governing consideration. Therefore they fall within the scope of present and future discussions of the UN Disarmament Commission, and are not essentially a problem in outerspace control.

(2) Earth satellites would spend almost all their lives traveling an orbit in outer space, which is about to be occupied for the first time this year (1957). According to the philosophy mentioned in the introduction to this chapter, it is more practical to establish "governmental" controls over an area before it is occupied than

after.

(3) The earth satellite seems to provide the best point at which to break into the classic vicious circle surrounding arms control. Public knowledge of these satellites is widespread even before their launching, and the international cooperation brought about by the I. G. Y. presents an opportunity that may never be duplicated.

(4) Earth satellites will not be vital to national defense until after a period that is probably long enough for a system of international control to take hold. Satellites many times the size and power of those being launched by any nation this year would be needed for important defensive or offensive purposes, and even then there is some question that they would be fully reliable. Furthermore, by the time such satellites are perfected for nonpeaceful purposes they may be quite superfluous against an enemy's defenses because the Intercontinental Ballistic Missile (I. C. B. M.) will have rendered national radar defenses ineffective anyhow.

(5) Since the earth satellites will not for a few years yet be important to national defense or capable of national offense, the only chance for effective international control seems to depend upon vigorous effort in the near future.

(6) Once the earth satellite has been enlarged and perfected to the point where it is a dangerous military weapon, the only true security for any nation will lie in airtight international control.

(7) If international registration of the relatively harmless satellites of the present stage is accomplished, and the machinery for notification and verification of the peaceful nature of flights is set up soon, the system of control might be able to keep up with the progress of satellite development. As the satellite grows gradually into a dangerous weapon, there is some chance that attitudes necessary to make international control feasible would also grow at the same rate.

(8) It may seem paradoxical to seek international ownership of a dangerous instrumentality only after it has been overshadowed by a far more dangerous and uncontrolled one. Yet the Committee believes that the principle of establishing full international controleven extending to ownership-over the realm of outer space is highly important as a precedent. Control of spacecraft of other typesincluding perhaps the I. C. B. M.-might be less difficult after the vicious circle is broken in this way.