Navigational cooperation to facilitate fixes, tracking, telemetering, rescue and the like.

Possible agreements regarding safe passage for scientific craft-which may require some prelaunching inspection in certain cases.

Pooling of international knowledge, equipment, personnel and funds where particularly significant and costly projects are to be undertaken.

Perhaps, when and if such points as these have been woven into the fabric of a beginning Space code, it will then be possible to consider seriously the question of national sovereignty into the sky-at least to the extent of formulating agreements on the "limited sovereignty" championed by some outstanding thinkers" or by finding a maximum territorial limit which nations will be willing to recognize.

IV

In any effort along the foregoing lines, it must be kept in mind. that there are differences between aeronautics and astronautics, between the Earth's envelope of atmosphere and Outer Space.

I am well aware of influential views to the contrary. The Chief of Staff of the U. S. Air Force, General Thomas D. White, states that:

In discussing air and space, it should be recognized that there is no division, per se, between the two. For all practical purposes air and space merge, forming a continuous and indivisible field of operation."

General D. L. Putt, research and development chief of the Air Force echoes the identical thought.19

From the standpoint of military tactics this may be so. I am not competent to argue that question. But from the practical standpoint of developing a Space code, the military view is immaterial.

In the first place, a majority of today's leading military minds seem to doubt if Space itself will have much more than nominal significance, strategically, for many years to come. It is their contention that the cheapest and most effective means of waging war are likely to remain on an earth-point to earth-point basis-that is, Space will be employed mainly for surveillance or simply as a medium of momentary transit for earth-to-earth vehicles or missiles.

In the second place, under the United Nations charter all countries now have the legal right to take whatever steps are necessary to insure their defense 20-whether on land, sea, air or, presumably, in Space. Indeed, the United States and Canada have long since availed themselves of this privilege when they set up Air Defense Identification Zones and assumed jurisdiction for security purposes over large areas of the oceans bordering their coastlines.21

It follows that, since all nations claim their only interest in armed might rests with the principle of self-defense, and since legal freedom in this regard is already spelled out in the United Nations charter, there is every reason to proceed with whatever agreements can be

17 Goedhius, The Air Sovereignty Concept, 22 Journal of Air Law and Commerce 209 (1955).

18 Air and Space Are Indivisible," Air Force Magazine, March 1958, pp. 40-41. 19 Note 4 Supra, at p. 103.

20 Article 51.

2130 Canadian Bar Review 257 (1952).

reached relative to the use of Space without worrying overmuch about whether we shall hamstring the military.

However, the assertion that there is no difference between airspace and Outer Space certainly does not hold scientifically, politically, or legally. It is true that we are at present unable to make a precise distinction between them in any of these three languages. But we can say this:

The one element (airspace) is a fixed property of Earth. It is as much a part of our planet as the land and sea, and it is therefore subject not only to legal doctrines of property and equity, but to physical manipulation and control. The latter, in fact, already has been evidenced in connection with such projects as weather modification and the regulation of air pollution. The other element (Outer Space) is in a different category. While we may some day discover "substance" in Space that will lend itself to capture and control, the most we can say now is that man's activities there are the only governable factors. The contrast is considerable, physically and socially-which brings to mind a notable warning penned by Mr. Justice Frankfurter in regard to the development of air law as it may pertain to established laws of land or sea:

One of the most treacherous tendencies in legal reasoning is the transfer of generalizations developed for one set of situations to seemingly analogous, yet essentially very different, situations."

We can be reasonably sure, I think, that the aeronaut and the astronaut will one day find themselves governed by rules which are by no means identical. In short, there are differences between airspace and Outer Space-differences apt to diverge even further as man probes deeper into Space and comes in contact with other celestial bodies.

The tricky question, of course, and the meaty one, is: how do we go about developing a worthwhile code for Space behavior?

Many scholars believe that this should evolve slowly, on an ad hoc basis, according to the evolution of each individual problem or need as it attains prominence in the international community.23 Some suggest that "the United Nations is the proper forum for necessary discussion." 24

My own view falls somewhere between.

As indicated, it is my belief that the matter is too urgent to be left to the normal routines of social evolution. Nor do I think that the United Nations itself, which now bears a stamp of ineffectiveness in regard to disarmament and terirtorial waters, should be the agency to do the initial work. The United Nations could, of course, be used expeditiously at a later date in evaluating and/or adopting draft codes.

I suggest exploring the possibility for a specialized agency in astronautics to be brought into relationship with the United Nations according to the terms of its charter.25

Perhaps some existing specialized agency capable of doing the spadework already exists. But this is doubtful.

Braniff Airways v. Nebraska Bd., 347 U. S. 590; 74 S. Ct. 757 (1954).

See McDougal and Lipson. "Perspectives for a Law of Outer Space," 52 American Journal of International Law 407 (1958).

Sir Leslie Munro, address before the Harvard Law School, June 11, 1958.

25 Chapters IX and X, Charter of the U. N. Organization.

The International Civil Aviation Organization would seem to be the most nearly appropriate unit to take over the Space code task. However, there is a very real likelihood that the ICAO, both by its charter and because of pre-disposed and specialized ways of thinking, is not the proper agency for the job.26 Besides, it would appear that the ICAO already has more legal problems to care for than it can handle including the development of acceptable doctrines to facilitate such touchy matters as the status of airspace over territorial waters, the use of airways above international zones, and the regulation of international airlanes in light of the coming commercial jet age.27

In all probability, therefore, a new specialized agency would have to be created, preferably from some existing organization.

To me, the logical candidate is the International Astronautical Federation, an experienced nongovernmental group composed of respected scientific societies from 25 nations, including the contemporary leaders in the Space arena, the United States and the Soviet Union.

While there may be good reasons for the I, A. F. to remain independent of the United Nations or any other authoritative organization, and while the traditional emphasis of the Federation is on science rather than law-I submit that no effective beginning toward a Space code is possible without recourse to the kind of technical knowledge contained within the I. A. F. membership. If the I. A. F. can be persuaded to set up a permanent headquarters and establish a permanent legal division to study the embryonic regulatory problems of Space, it could well serve as the initial instrument to carry forward this vital task.

It might thus formulate plans for working out the draft of a Space code to be submitted eventually to a World Conference on the Use of Outer Space-possibly a conference held here at The Hague within a year or two.

There is no suggestion here as to the form such a draft should take. It might be a set of agreed-upon positive rules. It might be a covenant of things-not-to-be-done. It might seek to establish an international Space Organization to regulate the more distant phases of Space exploration, such as advanced lunar or interplanetary probes or investigations which generally transcend national interests. Any number of possibilities exist.

CONCLUSION

None of this is intended to imply that a beginning toward a Space code will be easy to draft, easy to accept, or immediately possible to

en force.

Such facets of the problem, important as they are, do not really figure in the point with which I am most concerned. The point, in summary, is this:

If some effort toward a Space code is begun-an effort which merits international recognition and which, by association with the most powerful legalized international institution in the world, can be as

28 Note 3 Supra. Pp. 100-101.

27 Harvard Law Record, April 10, 1958, p. 2.

sured of global consideration at the proper time-then we shall have created an attitude, a precedent, an expression of belief in the need to prevent anarchy in Space which may crystallize eventually into effective law.

Equally important, as Michael Aaronson recently observed,28 mere recommendations of this nature can result in "international and consequential national controls" in highly important allied fields. In other words, the essence of a suggested Space code, whether or not adopted in itself, may spill over into other areas of international law and thus exert an influence for lasting peace.

On the other hand, if we attempt nothing in this direction, the Tempo of our Age may force us into sudden desperate situations. In all probability this will be the precise result of indefinite indolence or of a wait-and-see policy toward regulating Space behavior. At best we are likely to fall into the ways so aptly described by a contemporary English editorial on Space law:

One conclusion is that these problems will provide international jurists with years of detailed study and, such being the case, the big powers can ignore the whole thing until it is time to appoint another commission to amend the laws of the last, which were, of course, so out-of-date as to be inapplicable ***. The giddy cycle of law chasing power but never quite catching up will thus be perpetuated."

Perhaps I am rushing things with these recommendations, stretching possibilities too far, too fast. Many informed and intelligent people, I am sure, will think so.

But I incline toward the philosophy of the fellow who remarked: "When you reach for the stars, you may not quite get one; but you won't come up with a handful of mud, either."

28 "Space Law," International Relations, April 1958, p. 426. 101 Solicitor's Journal 965.

AN AMERICAN VIEW OF JURISDICTION IN OUTER

SPACE 1

By George J. Feldman

In addressing an international audience such as this, it is probably best to begin with the situation in my own country, including proposals and prospects for change.

The United States has recently enacted what I believe to be the world's first statute dealing with astronautics. The National Aeronautics and Space Act,2 signed by the President on July 29, creates a new agency of Government to be known as the National Aeronautics and Space Administration. In addition to planning and conducting both aeronautical and space activities, the new agency is directed to arrange for scientific observations and measurements, like those of the International Geophysical Year, and to promote the spread of scientific knowledge relating to outer space. Top policy and overall coordination will be provided by the President himself, with the advice of the National Aeronautics and Space Council, over which he will preside, and which will consist of high-level Government officials and distinguished private citizens. The new agency is authorized to engage in a program of international cooperation, in the interest of scientific progress and world peace. The act declares it to be the policy of the United States that activities in outer space shall be devoted to peaceful purposes for the benefit of all mankind.

3

Although the National Aeronautics and Space Administration is not given regulatory powers, the appropriate committees of Congress contemplated that it would conduct legal and related research with a view to domestic legislation and regulation as well as international agreements governing the use of outer space. Witnesses before the House Committee agreed that the legal regime of outer space would be the primary problem confronting the new space agency. At any rate, it seems clear that space law must be developed in order to prevent anarchy in the use of outer space. The problem is grave and urgent because of the military potentialities of missiles, satellites, and space vehicles. Even outside the Government, space law is being widely discussed in the United States. For example, the American Bar Association has established a special committee on the subject, and has devoted to it a considerable part of the program at the annual association meeting at Los Angeles.

What is the nature of the legal problem which the new space agency will meet in considering the international control of outer space?

1 Paper presented by George J. Feldman, director and chief counsel, Committee on Astronautics and Space Exploration, U. S. House of Representatives, before the International Astronautical Federation, The Hague. August 29, 1958.

2 Public Law 568, 85th Cong. (1958).

See hearings before the House Select Committee on Astronautcis and Space Exploration, 85th Cong., 2d sess., p. 1286 (also pp. 1269, 1288).