THE LEGAL HORIZONS OF SPACE USE AND

EXPLORATION 1

Address by Charles S. Rhyne, president, American Bar Association, at annual law day dinner, University of South Dakota Law School, Vermillion, S. Dak., April 19, 1958

For the proper perspective for our venture into the future of the law I will recall to your minds President Eisenhower's outline on March 26 of our program to insure that we reach the moon as well as be foremost in space exploration and use. Scientifically we will thus meet and exceed the Russian challenge in outer space. But more is involved here than a space race. Strength of man today resides in his mind. We still need to capture the minds of men for our ideas and ideals in space use and exploration. And here is where the law can render a great service. Here is where the use of the rule of law is, I believe, imperative.

Let us take the specific problem of outer space and consider the extent to which present law must be expanded to fit the situations now forecast.

There has been a lot of writing and a lot of litigation_concerning the ownership of airspace. Legal theories have ranged in degree from the ancient theory that ownership of property gives complete title indefinitely upward and downward, to the more recent theory that ownership of property includes title to airspace to the extent only that the owner makes actual use of it. Under international law sovereignty in airspace has been recognized. There is therefore much experience and background which have formed an established body of law in the area of airspace rights within the earths' atmosphere. Much of my own legal work has been in this field. I have witnessed a whole new field of aviation law grow within my 20 years at the bar. Though air-control cases are still closely fought, enough basic principle has been established and accepted so that we are now able to predict in most instances how the law should and will be applied.

We must now develop new law to control use of outer-space exploration and discoveries therein. The now familiar body of airspace law for the earthbound does not in truth provide all the answers. If we extend the airspace ownership theory upward and outward indefinitely we encounter physical difficulties. Because of the curved face of the earth the extension would give us an inverted cone which would grow bigger and bigger in relation to the earth as it extended further into space. There would come a point when these cones would overlap and more than one nation would be claiming to own the same airspace. These facts illustrate the impossibility of applying existing airspace

Excerpt from address inserted in the Congressional Record, April 22, 1958, pp. 6153-54, by Senator Karl E. Mundt, of South Dakota.

ownership sovereignty law to outer-space use. But as in the case of air-space control for the earthbound, law can grow to meet the needs of outer space.

We have learned on the planet Earth that either the law of force or the force of law controls mankind's actions. On the planet Earth mankind's greatest need is for law to replace weapons as the decision mechanism in settling disputes between nations. As mankind launches out into the fantastic new frontiers of outer space we must tie to the rule of law as our best hope for a future peaceful existence. If the rule of law controls the use of space, a peaceful use theory is assured. If force governs, the first unprincipled dictator to achieve a lead in space use and exploration which gives him dominance of the earth could, indeed, terrify or destroy at his whim. Space use and exploration is thus compounded with possibilities of enormous good or enormous evil. We must lead toward a good end result by adopting policies and plans to achieve that goal. President Eisenhower, in his letter of January 12 to Bulganin, stated that he was proposing a solution of the most important problem that faces our world today. He then urged that we agree that outer space should be used only for peaceful purposes.

For a moment let us look at some of the problems which arise from the use of outer space. We can start by supposing that the United States were to shoot down sputnik while it is over our territory or that the Russians were to shoot down the Explorers or the Vanguard over Russia. Would we, or they, be exercising a clear legal right? Certainly under settled rules of international law we, or they, could do so, if outer space is part of our or their sovereign territory. Do we own or have sovereignty over space 560 or 6,500 miles up or out? At least tentative recognition of freedom of use of outer space is indicated in the fact that no protests have been made over the use of that space by the already launched satellites. But other legal problems also arise. Suppose sputnik does not burn up in space, but falls on Washington, D. C. Is the Soviet Union liable for damages? Our existing law clearly was designed in terms of the earth's atmosphere. Can it be made applicable in determining the jurisdiction of endless space. I sincerely believe that while the rules may of necessity be different the principles of the rule of law can and must be applied.

We of the legal profession must do as we have always done with new subjects, develop a set of legal rules based upon law principles for outer-space use and exploration and all that is discovered there. Law is not only the accumulated wisdom of the centuries, but it is, above all, a bundle of moral principles approved by experience as insuring fair treatment for all affected thereby. That fundamental is enough as a base for outer-space law. We can use the rule of law as our basis and formulate such traffic and other rules as are needed as we go along.

The great need is for debate and discussion. It is in the hope of stimulating these that I now speak. I begin by expressing the view that freedom of use of outer space, like freedom of the use of the seas, is the most logical legal principle to begin with. But more is involved than this.

Ownership of the moon when man gets there, or ownership of newly discovered planets by the occupying or discovering nations, is a very live question for lawyers today. The position of most scholars in the

international-law field is that even during the early days of discovery mere physical discovery or visual apprehension was not a solid basis for a claim of sovereignty. However, this discovery, plus some symbolic act or formal claiming ceremony, was considered wholly sufficient to establish immediate sovereignty and valid title.

This has not been the position of the United States. In 1942 Secretary of State Charles E. Hughes said:

It is the opinion of the Department that the discovery of lands unknown to civilization, even when coupled with a formal taking of possession, does not support a valid claim of sovereignty unless the discovery is followed by an actual settlement of the discovered country.

That this is our position in practice as well as word is clearly evidenced by the fact that we have never made and have actually denied any claim to Antarctica despite extensive exploration of that territory by Americans. This is certainly the most progressive approach to modern discovery, and the only sensible position to be extended to outer space explorations.

If the policy of making no claim of sovereignty and recognizing none is applied, the race to the moon and to the stars then would be applauded by all mankind, but especially by the often terrified bystanders to the present contest. We who seek to own no people and no people's land should express that as the legal principle we espouse here. All free and all uncommitted peoples would praise us for that stand and we could regain some of our leadership in the world, as our leadership is and always has been based upon moral principle. Surely we will never seek to make slaves of the inhabitants of Mars, or the moon, nor will we use those planets for destructive purposes; so let us say so.

Our galaxy has 40 billion stars, many larger than our sun. We are told that there are at least 40 billion other galaxies. Scientists feel that it is very likely that intelligence other than ours does exist. If so, good relations depend on the establishment of a just and rational basis for intercourse. That basis on our part must be fairness and which means the rule of law.

reason,

We have here not only one of the new frontiers of the law but of the world. We must never be anchored to the past, but we should always be willing to be guided by it. Extensive research, study, debate, and cooperative action is necessary to gain insight into these problems and to provide the basis for constructive proposals for changes or expansion in the law to meet the needs here. This work cannot be done entirely and effectively by individuals. We lawyers and our law schools must work together on this and by far the most. effective instrument we have for active cooperation is the organized bar.

As we square away to meet the ever-mounting new problems in the law from nuclear energy, outer space exploration and use, and the many new legal problems and questions which are just around the corner, it seems well that we pause to establish a more firm base for the law in our country and in the world. The new frontiers in the conquest of space are exceeded only by the problems in human relationships which flow from our physically indivisible world. Here too the law offers our best hope. The lawyer has always been the technician in man's relationship to man. We who have not yet devel

oped successful machinery to insure peaceful relations among our peoples here on earth must begin to consider the possibility, no matter how remote it may be, of expanding our horizons to encompass not only outer space but relations with other forms of intelligent life on other planets. Perhaps joint effort on law for peaceful control of outer space can pave the path toward legal machinery to insure peace on planet earth.

SPACE LAW 1

Michael Aaronson

With the development of aircraft propelled by exhaust velocity, transportation above the Earth's surface will undoubtedly take place at higher altitudes. Furthermore, the extension of conventional rocket-programmes by the launching of satellites into orbits may have heralded the approaching era of cosmic travel and the penetration of inter-planetary space. This raises many practical legal questions. Of these, the major ones appear to be the altitude of territorial sovereignty, the rules of navigation to be applied in space, the control of telecommunications from space and the law of discovery of celestial bodies. To understand the approach to these problems it will be first necessary to examine the origins of international law affecting the area above the Earth's surface.

Origins of Public International Law Affecting Area Above Earth's Surface

No system of international law either derived from custom or from inter-governmental agreement existed before 1919 in respect of the area above and beyond the Earth's surface. The first inter-governmental conference to discuss this matter was convened in 1910 by the French Government. Inevitably, the major item on the agenda was the question of sovereignty over the atmosphere above political entities.

Even then, the subject was not new. It had been considered for some time previously by international jurists who had been been stimulated by the phenomenon of the gas filled balloon. A wealth of literature existed on the subject already. Much of it was speculative. Broadly speaking, there were two schools of thought. Both agreed that no customary international law governed the atmosphere above the Earth's surface. On all other issues they were divided.

The one maintained that the atmosphere surrounded the Earth and that all political entities bordered it in the same way that maritime territories bordered the sea. Therefore, the same rules should apply as in maritime law. Since the freedom of the high seas had been established in international law, freedom of the atmosphere was the logical consequence. Thus, as no nation could exercise jurisdiction over the high seas, no nation could exercise jurisdiction over the atmosphere. Therefore, the right to penetrate the airspace above a political entity should be unhampered.

The opposing school held that since States exercised absolute sovereignty over the surface of their territory as well as beneath the surface of their territory, they were entitled to exercise similar jurisdiction in the atmosphere above the surface of their territory.

1 Reprinted from International Relations, Journal of the David Davies Memorial Institute of International Studies, April 1958, pp. 416-427. Mr. Aaronson is a British barrister.