tion of activities regarded as comparable, appraising success and failure and projecting appropriate policy. Thus, control over the identification of space objects and the location of national responsibility for them as a preliminary to allocating the burdens and benefits of space activities may become a live problem if launchings become less highly publicized and so numerous as to outstrip the capacity of the tracking stations, if objects launched into space survive re-entry into the atmosphere and strike the earth or do other damage, if spacecraft on re-entry are retrieved by a state upon which another makes a claim as the owner or launcher, and if a spacecraft ever attains the ability to wrest economically valuable resources from another spacecraft. Here experience speaks in darkening voice. The problem of registration of vehicles financed by private entities has obviously not been solved in the law of the sea, where the necessity of a "genuine link" between the country of flag of registration and the nationality of private owners is still warmly debated. For rules of navigation, roughly adaptable models are available from the law of the sea and the law of airspace; similar principles, differing greatly in detailed application, may help in the co-ordination of launching times and flight plans, which will become important much sooner than navigation in the familiar sense. 53 Regulation and characterization of events on board spacecraft, a remoter problem, may similarly be analyzed and administered in ways familiar to those who have dealt with the analysis of events on ships and aircraft. The well-known competing principles of jurisdictionnationality of the participants, territoriality (registration of the vehicle), protection of proximately affected nations (protective principle and principle of passive personality), as well as all the complementary principles in terms of "immunities" and "acts of state" by which jurisdiction is yielded-may all become relevant. These doctrines both permit any state substantially affected to assert its competence, when it has effective control over persons or assets, and afford sufficient alternatives in choice to encourage flexible accommodation in reciprocal demand and mutual tolerance. The difficulty that states have had in regarding the pattern of practices developed with respect to events on board ship as transferable to the control of events on board aircraft suggests that there may be difficulty in adopting either analogy directly for events on spacecraft. Detailed discussion of this may await the advent or more particular anticipation of concrete problems. 55 54 Despite the picturesque opportunities that the subject presents to imagination, it is probably equally premature to attempt to clarify in detail modes of redress for deprivation inflicted by space activities. * See Briggs (ed.), The Law of Nations 330-333 (2d ed., 1952); N. Y. Times, April 9, 1958, p. 66; Rienow, The Test of the Nationality of a Merchant Vessel (1937). Moursi, Conflict in the Jurisdiction of Courts of Different States to Deal with Acts and Occurrences on Board Aircraft (dissertation on file in Yale Law Library, 1955); Yntema, "The Historic Bases of Private International Law," 2 Am. J. Comp. Law 247 (1953). Aircraft have presented a number of special difficulties with respect to problems of investigation, obtaining witnesses, providing for convenience of parties, and in determining the territorial location of events in controversy, with suggestions of possible allocations of authority to states of last departure and first landing. Events on board spacecraft may evoke or occasion similar difficulties in aggravated form, though the responses may be different. 55 Cooper, The Legal Status of Aircraft 61 (Mimeo., 1949); see 17 Journal of Air Law and Commerce 292 (1950). The analysts of torts and delicts are already fairly skilled in weighing the interest in protection from injury against the need to foster initiative, the relevance of the fault of the various actors, the gravity of the harm that may occur, the probability of its occurrence, the cost of averting such occurrences and the efficacy of safety measures, and the rather more complex problems of the proper incidence of the various costs involved. Whether a rule of absolute liability would be preferable to some sort of fault liability; whether there is a place for public or private or mixed insurance schemes; whether an international fund might be set up to accommodate worthy claims; whether efforts should be made to reach international agreement on limits of liability-these questions may abide further experience. The nearest relevant analogy may be the problems now beginning to be posed by the use of atom reactor machinery and nuclear material. Questions relating to occupation of territory in outer space and exclusive claims to new resources have again been much mooted. Among the disputants there appears some disposition to believe that particular doctrines, thought to express the state of the law of occupation on earth, will be automatically applied to extraterritorial exploration unless some agreement otherwise is reached; 56 but this apprehensive notion exalts the letter above the spirit. The details of any applied doctrine of occupation have always varied with relevant circumstances of technology, possibilities of effective occupation, difficulties of proof, and objectives of the participants. The policies behind the traditional doctrines on this subject derived from Roman law are, it may be recalled, to reward priority in time, to acknowledge effectiveness of control, to maintain peaceful activity and public order, and to encourage the use of territory once explored or resources once developed. The history of application of the law of occupation and allocation of resources over the centuries, including the division of the continents of the New World and the inconclusive but instructive story of Antarctica," gives no ground to suppose, for example, that the moon will become American or Soviet "property" if only the Stars and Stripes, or the Hammer and Sickle, are shot onto its surface. VI A durable agreement by explicit international convention on anything like a code of law for outer space is not, in our opinion, something now to be expected 58 or desired. One may indeed expect with rather more confidence a series of agreements, gradually arrived 50 The extreme illustration is provided in a popular article by Huss, "Let's Claim the Moon-Now!" Mechanix Illustrated, Feb.-March, 1957, pp. 70, 72: "Columbus stuck the Spanish Flag into the sands of a West Indies beach-and we or the Russians would be perfectly within the concept of international law to claim possession of the Moon by shooting our national flag there by rocket." 57 See Carl, "International Law-Claims to Sovereignty: Antarctica," 28 So. Cal. Law Rev. 386 (1955); Toma, "Soviet Attitude Towards the Acquisition of Territorial Sovereignty in the Antarctic," 50 A. J. I. L. 611 (1956). In May, 1958, the United States proposed to eleven other states a treaty for "freedom of scientific investigation throughout Antarctica," continuation of the international co-operation after the end of the IGY, and agreement "to insure that Antarctica be used for peaceful purposes only." N. Y. Times, May 4, 1958, Sec. 1, p. 19. Cf. Danier, "Les Voyages Interplanétaires et le Droit," 15 Rev. Gén de l'Air 422, 425 (1952); Schachter, "Who Owns the Universe?" Colliers, March 22, 1952, p. 36. The United States propposal on Antarctica may perhaps be considered a trial balloon (launched in a polar orbit) for outer space. 55 States that have not been able to agree upon the width of territorial sea can hardly be expected fully to clarify a common interest in the allocation and regulation of uses of outer space. See N. Y. Times, April 26, 1958, p. 38: "No Sea Limit Set by 2-Month Talk." at, on particular subjects, such as the continuation of the International Geophysical Year; the exchange of certain types of information, such as tracking data and some signaling codes, beyond present levels; the use or abstention from use of certain radio frequencies; and the coordination of launching schedules. Particular projects, like the establishment of television or radio relay satellites, might (in addition to whatever economic or scientific merits they possess) serve to test the possibilities of broad international co-operation more fruitfully than conferences on "the law of space." Agreement might be reached-not necessarily by the execution of formal documents-to abstain from the pollution of space by shrapnel or other "junk," which might otherwise be thrown up in an attempt to impede the flight of hostile satellites or hostile communications; such agreement would probably depend on the assurance either that other means of averting the danger from the hostile activities were adequate or that the activities did not present a danger sufficiently great to justify the pollution. The modes of reaching such agreements cannot now be charted with any precision. Some agreements may be explicit and formal; some may be simply a consensus achieved by the gradual accretion of custom from repeated instances of mutual toleration. Some may be bilateral, others trilateral or multilateral; some may be within the framework of the United Nations, others within some other existing organization or some machinery yet to be set up. Their details and sequence must, like much else in an indeterminate universe, depend on the order of experience in space as well as on the changing political context. We recognize, however, that the order of that experience will in turn be affected by expectations which decision-making officials in the nation states possessing space capabilities entertain as to the space plans of others, and by the reactions and attitudes of the earth community. In order to help allay anxieties about the possible weapons uses of space satellites and to help lay a foundation for closer co-operation in peaceful activities in space for common benefit-a co-operation from which an adequate and effective customary or conventional law might eventually emerge the following suggestions might even now be considered by responsible officials: (1) It was suggested in this Journal early in 1957 that each state about to launch a satellite could register its intent to do so with an international agency, filing a flight plan and a description of certain characteristics of the satellite, such as load, weight, and size.59 This could be combined with willingness to submit to international inspection, to assure that the payload conforms to the description filed. This suggestion could be put into practice by any state, regardless of the agreement of any other state; but the decision to do so might well be affected by the communicated willingness of other launching states to agree to corresponding measures. (2) Agreement might be reached to abstain from the launching of satellites fitted with nuclear or other explosive warheads. Such an agreement probably would have to be contingent on the availability of effective pre-launching inspection of the type that is illustrated by the first proposal above. Whether it should or could be coupled with an agreement on the prohibition of the use of intercontinental ballistic. 50 McDougal, "Artificial Satellites: A Modest Proposal," 51 A. J. I. L. 74, 77 (1957). missiles, and whether it should or could be considered as part of a possible general agreement on nuclear or universal disarmament, are matters of strategy, community and national, dependent upon the course of many variables. (3) States possessing the capability of launching satellites might offer to launch certain types of satellites on behalf of, or even as trustee for, the United Nations. The launching state could retain responsibility for the launching operation, preserving control over the security of its rocketry; the United Nations would decide upon the purpose of the flight, determine the payload, design the instrumentation, and finance the construction of the satellite and its contents. The neces sary United Nations decisions could be made by an arm of the United Nations, or authority to make them could be delegated to the launching state or conceivably to some other agent. The existence of such "trust satellites" would not necessarily preclude national satellites with similar or identical functions. THE PROBLEM OF A DEFINITION OF "AIRSPACE" 1 A MEMORANDUM FOR THE IXTH ANNUAL CONGRESS OF THE By John Cobb Cooper I. BACKGROUND At the Barcelona Conference of the IAF in 1957, a proposal was made by the present distinguished president of the conference, Mr. A. G. Haley, that a committee be named to prepare a definition of what is meant by the term "airspace," as used in connection with flight of aircraft and other instrumentalities. The conference honored the undersigned with appointment as Chairman of the proposed committee of scientists and jurists. Difficulties arose in connection with the completion of the membership as originally envisaged. This fact, as well as certain personal considerations (including inability to attend the Amsterdam Conference) impelled the undersigned to submit his resignation. The problem however still exists. For that reason this memorandum has been prepared in the hope that it may be of some value in any future consideration of the basic problem. II. THE PROBLEM International law, as evidenced by the Chicago Convention of 1944, many national statutes, and national practice, has long accepted the fact that each nation has complete and exclusive sovereignty in the airspace above its lands and waters. Foreign aircraft are denied entry into national airspace except when authorized by convention, regulation, or other permission. The subjacent State has unquestioned unilateral right to control all flight into or through its airspace. The question therefore is this: How far upward above the surface of the earth does this right extend? Until this question is settled, either directly by an agreed definition stating the upper boundary of national airspace, or indirectly by international agreement regulating flight of various types of instrumentalities, the full possibilities of astronautics may be politically and practically handicapped. Various solutions have been suggested and require consideration. Some are stated below. 1 In Extension of Remarks of James G. Fulton, Congressional Record daily edition, August 25, 1958, pp. A7843-45. The author of the memorandum was formerly director of the Institute of International Air Law, McGill University. |