space research and exploration. To undertake these functions properly, the agency might well be established under the auspices of the United Nations, but, in any event, should have a suitable and necessary relationship with the United Nations and with other international organizations such as the World Meteorological Organization. In this respect, a precedent has already been set. I refer specifically to the International Atomic Energy Agency. As you are aware, this Agency has the task of both promoting international exchange and scientific cooperation, as well as assuring that nuclear materials in its possession are used exclusively for peaceful purposes. There is no reason to believe that a space organization formulated along similar lines could not be just as effective -or more effective, since we have this IAEA experience from which to draw.

At this time, we in the State Department envisage no obstaclespolitical or technical-which would preclude the establishment of such an international system of cooperation and coordination.

We, in fact, believe that only through the creation of such an international organization will the interests of science and humanity be amply protected and assured.

I should add that international space cooperation is already imbued with some encouraging possibilities of collective action. In March of this year, the Soviet Union placed on the provisional agenda of the 13th General Assembly an item calling for, among other things:

the establishment of a United Nations agency for international cooperation in the study of cosmic space.

This could mean that the first imperative step has been takenrecognition of the need for international cooperation in this field.

If this is so-it allows for an initial atmosphere of hope. Yet, even here, there remain initial problems.

This proposal I have just quoted is tied to a broad international agreement which includes, among other things, a provision for the elimination of foreign military bases. That is an old Soviet proposal and one we are not prepared to accept.

Further, we see no link between international space cooperation and elimination of foreign bases.

Thus it is clear that a number of other steps must be taken before we can gain the staggering opportunities and benefits which await at peaceful, international venture into this new world.

We have yet to reach a practical agreement which offers assurance that space shall be devoted to peaceful purposes and that there shall be international cooperation in exploring its infinite bounds.

Until a satisfactory agreement has been reached, we in the State Department shall maintain and preserve every national right of the United States in the atmosphere and in space.

INTERNATIONAL LAW AFFECTING OUTER SPACE

Now I turn to a few principles of international law which affect outer space.

The first is article 51 of the United Nations Charter.

I refer to this because I have read a number of articles in which it is stated that the only international agreement relating to space or to the atmosphere is the Chicago Convention of 1944, relating to

civil aviation matters. I have seen it asserted that there is no international law with respect to space outside the atmosphere.

I regard such statements as incorrect because of the specific provisions of article 51 of the United Nations Charter to which I have previously referred.

Under that provision, each of the members of the United Nations reserved its "inherent right" of individual or collective self-defense against armed attack.

Now the origin of an armed attack against the United States, or the particular point in space through which it would have to pass in order to reach the United States or one of its collective security partners, is completely immaterial.

The United States is prepared at all times to react to protect itself against an armed attack, whether that attack originates in outer space or passes through outer space in order to reach the United States.

The point I would like to emphasize is that if and when the United States takes such action, it will be exercising a right which it has under international law, because that law in the last analysis is what nations will agree to. And the inherent right of individual and collective self-defense has been recognized as a fundamental principle of international law in the United Nations Charter.

Turning now to the International Geophysical Year, I believe that there is another misconception with respect to the rights of the United States in this sphere that I should like to correct.

I have several times seen it stated that we do not have any right to protest or take any action with respect to satellites, because of the events relating to the International Geophysical Year.

Now, the facts are these:

The arrangements with respect to the International Geophysical Year were not made on an intergovernmental basis. They were arrangements made between scientific bodies in a private capacity.

It is true that certain governments, including the Soviet Union and the United States, announced in advance that during the International Geophysical Year they intended to place objects in orbit around the earth. And it was also stated in connection with these announcements that the purpose of these satellites would be for scientific investigation. No nation protested these announcements.

It follows, therefore, that the only conclusion that can be reached with respect to the arrangements regarding the International Geophysical Year is that there is an implied agreement that for the period of the International Geophysical Year, it is permissible to put into orbit satellites designed for scientific purposes. Once the year is over, rights in this field will have to be determined by whatever agreement may be reached with respect to such objects.

Is there any agreed upper limit of sovereignty?

That is the next question of international law-particularly the position of the United States regarding its sovereignty upward.

There are those who have argued that the sovereignty of the United States ends with the outer limits of the atmosphere, and that space outside the atmosphere is either free to all or should possibly be conceded to be within the sovereignty of one or another international organization.

I have also seen it suggested that it should be likened to the high seas, free to all.

The United States Government has not recognized any top or upper limit to its sovereignty. This position has been taken entirely apart and aside from article 51 of the United Nations Charter and any limitations that may be inherent in that, such as "armed attack." It is true that in such international agreements as the Chicago Convention of 1944, which relates to civil aviation, the parties thereto recognize that each of them "has complete and exclusive sovereignty of the airspace above its territory."

But it is important to note that there is nowhere in the Chicago Convention of 1944 or other international agreements comparable thereto any definition of what is meant by the term "airspace.”

I do not wish to take here, nor has the State Department ever officially taken, a definitive position as to how this term "airspace" should be defined.

I think it important to note, however, that one of the suggestions that has been made in this regard is that the airspace should be defined to include that portion of space above the earth in which there is any atmosphere.

I am informed that, astronomically, the earth's atmosphere extends 10,000 miles above its surface.

It follows that it would be perfectly rational for us to maintain that under the Chicago Convention the sovereignty of the United States extends 10,000 miles from the surface of the earth, an area which would comprehend the area in which all of the satellites up to this point have entered.

At any rate that type of definition would afford us enough elbow room for discussion.

Furthermore, although the United States in its domestic law, as well as in agreements such as the Chicago Convention, has plainly asserted its complete and exclusive sovereignty over the airspace above its territory, at no time have we conceded that we have no rights in the higher regions of space.

One rationale for this position which seems to me self-evident was that the United States had no need to define its position with respect to what rights, if any, it might possess outside the earth's atmosphere until such time as mankind had demonstrated a capability of existing outside the atmosphere.

Even after such a capability is demonstrated, there will be no imperative requirement in international law that the United States make any claims of sovereignty in order to protect its rights. A very apt analogy is afforded by the Antarctic.

There, for many, many years, the United States has been engaged in activities which under established principles of international law, without any question whatsoever, created rights upon which the United States would be justified in asserting territorial claims. I mean by that, claims to sovereignty over one or more areas of the Antarctic. Notwithstanding this fact, the United States has not asserted any claim of sovereignty over any portion of Antarctica, although the United States has, at the same time, made it perfectly plain that it did not recognize any such claims made by other states.

Nonetheless, the United States has been consistent in asserting that under international law and practice, its activities in the Antarctic Continent have entitled it to rights in that area which it has at all times expressly reserved.

It is the position of the United States Government, and one well founded in international law, that the fact that the United States has not based a claim of sovereignty over one or more areas of Antarctica, upon the basis of the activities it has engaged in there, in no way derogates from the rights that were established by its activities. So, too, in outer space, the United States has already engaged in activities which, it could be asserted, have given to it certain rights as distinguished from those states who have not engaged in such activities. Up to this time, the United States has made no claims of sovereignty based upon such activities.

As in the situation with respect to Antarctica, this should not be interpreted as any concession of any kind whatsoever on the part of the United States that its activities have not given it certain rights in space which, in turn, could be relied upon as the basis of a claim of sovereignty.

Should space law be codified at this time?

I would like now to turn to the question of whether or not the law of space should be codified at this time.

As you know, the development or the tendency of development of the common law, as it is applied in the United Kingdom and the United States and a number of other countries, has been on a case-tocase basis.

Speaking very generally, it has been felt that the soundest way to progress in the extremely complex field of the law is by means of specific decisions on specific questions presented by specific fact situations.

Even in those states which applied the principles of the civil law, it is recognized that a body of law can only be created upon a broader body of ascertained fact.

Moreover, there are very great risks in attempting to transmute a body of law based upon one determined set of facts into a body of law with respect to which the basic facts have not yet been determined.

Accordingly, we are inclined to view with great reserve any such suggestions as that the principles of the law of space should be codified now or that the principles of the law of the sea should be applied in space, until we ascertain many more facts with respect to conditions in space.

Basically, it is the position of our Government that the law of space should be based upon the facts of space, and that there is very much more that we have to learn about the conditions existing in space before we shall be in a position to say what shall be the legal principles applicable thereto.

THE SPACE AGENCY BILL

In my testimony, I have attempted to demonstrate to you that the Department of State has a great interest in the subject of space and, particularly, its relationship to problems of foreign policy, foreign relations, and international law in this new field.

It is the expectation of the Department that its studies and activities with respect to space would continue as before, following the establishment of the space agency provided for in the administration's

bill.

The difference would be that we would have a central point within the Government to which we could turn for enlightenment on non

military research and developments in space and with whom we could cooperate in the development and implementation of meaningful plans for international cooperation in the peaceful exploitation of space for the benefit of all mankind.

We believe that this was contemplated by the bill, as introduced, since it would be inferred that international cooperation would be effectuated through the normal channel therefor; namely, the Department of State.

We understand that it has been proposed that the bill be amended to include as one of the activities that the proposed agency may engage upon a program of international cooperation.

It is our understanding that the specific language proposed reads, as follows:

The agency may under foreign policy guidance by the Department of State engage in a program of international cooperation in work done pursuant to this Act and in the peaceful application of the results thereof, pursuant to agreements negotiated by the Department of State, or approved by that Department.

We also understand that this proposed amendment has the approval of the administration.

I should like to state that it is entirely satisfactory to the Department of State. I believe that what I have already said will have indicated that this Department is fully in accord with a program of international cooperation in the field of space, so long as that can be accomplished with due regard for the common defense and security of the United States.

CONCLUSION

Mr. Chairman, in commenting upon a space proposal made by the President in a letter to former Chairman Bulganin, you stated:

I agree with the President that outer space must be dedicated to the advancement rather than to the destruction of mankind. It is the obligation of responsible leadership to proceed to specific proposals that will convert a noble goal into a noble reality.

We in the Department of State fully concur with your statement. We regard the opening of the space age as a time of great opportunity for mankind. We shall make every effort to insure that the keynote of space internationally is peace and cooperation, rather than strife. We hope that other nations will join us in that high effort.

EXECUTIVE AGREEMENTS DIRECTED BY PRESIDENT

Senator JOHNSON. Thank you very much, Mr. Becker. I think that you have made a very fine statement. I have a few questions. In view of the concern expressed yesterday by Senator Bricker that the proposed language which you have just read in connection with the next to the last page of your statement, would conflict with the constitutional provision allowing only the President to make executive agreements, I wonder how you would feel about accepting a modification which would read, "Under the direction of the President"?

Mr. BECKER. That would be perfectly satisfactory, Mr. Chairman. We always operate, as you know under the direction of the President. Senator JOHNSON. Would you give me a memorandum on that suggestion, together with the Department's recommendation? Mr. BECKER. I will, sir.

(The recommendation referred to appears at the end of the testimony)

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