Open Skies and Open Space

HARDLY was Sputnik I in orbit last October when the Russians were ready to meet objections that their first artificial satellite infringed on the sovereignty of other nations. No violation occurred, wrote a Soviet legal expert, because in reality sputnik did not pass over other countries; rather, countries passed under sputnik as the earth rotated. "This piece of applied relativity," as The Economist called it, was supplemented with a more serious proposal. The Soviet authority went on to suggest that the outer atmosphere, like the open seas, belongs to no one and that freedom of circulation above 15 or 18 miles should be permitted by international law.[i]

Within these two brief propositions are compressed some of the most perplexing problems of the approaching space age. The first must have been offered facetiously since sputnik was moving at some 18,000 miles an hour and would have passed over many countries even if the earth did not rotate. Nevertheless, it drew attention to the fact that space is a realm apart, subject to natural laws of its own but, so far, beyond the reach of man-made laws. The second proposition was directed to a central series of questions now in sharp debate: Should sovereignty extend to outer space? Where does space begin? Can the frontier of space be clearly demarcated? The striking thing about this Soviet article is that it drew the limit of sovereignty about three times nearer the earth than any Western student of the problem has proposed, at a distance well within the atmosphere and within the range of rocket airplanes.

More recently the Soviet press has been silent on questions of space law[ii]; in other countries, however, the legal profession has been prolific on the subject. The American Bar Association has set up a Committee on Space Law and the International Astronautical Federation has appointed a committee of four physicists and three lawyers to draft a definition of air space and to recommend a rule delimiting air-space jurisdiction. The latter committee, under the chairmanship of John C. Cooper, will submit its findings and recommendations to the Secretary General of the United Nations, which is already involved in space matters. Indeed the legal profession has been so active that a professor of international law was moved to remark, "I am afraid a number of my brethren at the bar are already in orbit. They are traveling very fast and very high in a circular path, and I want them brought back to earth as soon as possible."[iii]

It is true that the space lawyers have projected themselves into pretty esoteric realms where there appears to be not only no air, but no cold war, and no generals and admirals to define the national interest. Moreover, the lawyers have forged ahead of the scientists to consider such questions as transactions in space, crime in space, property rights, piracy--indeed all the problems of this planet plus others deemed peculiar to space. For example, Andrew G. Haley, president of the International Astronautical Federation and General Counsel of the American Rocket Society, has developed in some detail the principles of "Metalaw" for dealing with intelligent beings who may be encountered on other planets.

There are, however, a range of questions which will require regulation or agreement in the foreseeable future. These involve such matters as responsibility for space craft, registration of vehicles, assignment of orbits and radio frequencies, and the timing of launchings to avoid radio interference and to minimize risk of accident or collision. It has seriously been suggested that an antilitter ordinance be adopted providing that after a satellite's radio has gone dead and its usefulness served, a small rocket will push the satellite toward earth, there to be consumed in the atmosphere. Otherwise, it is argued, space will soon be littered with hundreds of satellites, impossible to keep track of, and representing a hazard to navigation. As technology progresses, one can foresee the need for a host of additional regulations analogous to those for air and sea traffic: navigation aids, rules of safety and the like.

Another range of anticipated problems involves questions of liability for injury or damage from falling satellites. Sooner or later, all or part of a satellite is going to survive its fall through the atmosphere and do harm to man or property. Presumably precedents will evolve from air law once responsibility has been acknowledged in principle and providing identification is possible.

Despite the urgency with which some lawyers have painted the need for prompt agreement on these matters, one must assume that regulations will be negotiated when the situation demands, and not before. For the most part, these are questions in which necessity will ultimately triumph over politics, as they have in the field of aeronautics. Even though Soviet Russia is not a member of the International Civil Aviation Organization, which imposes comparable regulations for "inner space," she adheres to its rules. Similarly, regulations for outer space are likely to evolve from expediency and as experience demonstrates the need. Thus safety regulations will follow, not precede, the projection of man into space, and questions of liability are more likely to be set by precedents as yet unknown than by international agreement in anticipation of crashing satellites.

II

Much of the disagreement on how to cope with the emerging problems of outer space stems from a difference of approach. Is it better to stage a frontal assault on the problems, hoping to achieve agreement before they become acute, but risking a negative response from which nations will find it difficult to withdraw? Or is it better to count on an accumulation of modest precedents, thereby avoiding a confrontation on particular issues, but risking a measure of chaos if precedents lead in the wrong direction?

This difference of approach is exemplified in the growing literature on sovereignty in space. Some believe that the discussion is an academic exercise which might better be left alone. The majority of those who have written on the subject, however, insist that outer space must not only be declared free but its frontiers defined, as the prelude to all else. The more hopeful among them believe that the freedom of outer space has already been established in law. ". . . The course of international conduct since the satellite flights were announced," Cooper writes, "is consistent with no theory other than the acceptance of the principle that 'outer space' is not part of the territory of any state and may be used by all states as freely as the high seas are now used for surface shipping."[iv]

Many other authorities agree, on the grounds that (1) neither the United States nor the Soviet Union asked permission of other states before launching satellites over their territory; (2) no state has protested against such flights; and (3) the United Nations has passed certain resolutions in which the principle of national sovereignty in space is implicitly rejected. Among those who agree with this interpretation are the Secretary General of the United Nations and the director of its General Legal Division, Oscar Schachter. Moreover, Mr. Hammarskjold hopes that when the topic comes up for debate this fall, the General Assembly will agree explicitly that outer space is res communis, incapable of appropriation by any state.

The conviction that sovereignty should not extend to outer space is, of course, reinforced by the facts of astronomy. In addition to the rotation of the earth, the planet itself is traveling at 66,000 miles an hour around the sun and our solar system is moving at a million miles an hour within its galaxy. Therefore, a given point in space may be said to be "above" a particular state for only a fraction of a second, and even an object orbiting the earth may pass over several states in a matter of minutes.

If it is widely agreed that claims of sovereignty in outer space are undesirable or impractical, the next logical step, it would seem, is to determine where outer space begins, for here it might be proposed that sovereignty should end. An imaginative array of criteria has been advanced for determining the inner boundary of space--the point at which the gravitational force of the sun exceeds that of the earth, or the point of minimum temperature, or as high as the sky remains blue, or the maximum height from which a body if dropped over Texas will fall on Texas. By far the commonest phenomenon for defining space, however, is the earth's atmosphere.

For centuries the conception that the sovereignty of a state extended usque ad coelum--up to the skies--was well established in international law. Derived from the Romans, the doctrine was dignified in English law by Blackstone. Although an effort was made at the dawn of the air age to establish freedom of the air comparable to freedom of the seas, the experience of World War I counseled a more cautious policy. In 1919 a Paris convention for regulating air navigation specified that "every Power has complete and exclusive sovereignty over the air space above its territory." The Chicago Convention of 1944 used the same language, but the term "air space" was nowhere defined. However, the Annexes to both conventions defined aircraft as "any machine which can derive support in the atmosphere from the reactions of the air." From this it has been argued that the delegates intended national sovereignty to extend only as high as an airplane can fly --an argument which is used to reinforce the contention that the freedom of outer space has already been established in law.

Others believe that the Paris and Chicago Conventions did no more than restate the ad coelum theory in modern terms and that we must start from the assumption that under existing law sovereignty extends to the limits of the atmosphere. This does not prove very helpful when it is realized that the limit has been variously placed from 150 to 60,000 miles from the earth! And since the greatest activity in space--whether of earth satellites, ballistic missiles or space platforms--is likely to occur within the first 1,500 miles, a definition of space which permits sovereignty to extend to the extreme limits of the atmosphere will be largely meaningless.

Consequently some nearer boundary has been sought--one which will fill the requirement that it be clearly definable. Haley believes that he has found it at a distance of approximately 53 miles, the point at which the air becomes so thin that aerodynamic lift is gone and must be replaced by centrifugal force derived from speeds in the neighborhood of 18,000 miles an hour. Cooper agrees that this is a critical line and believes that the situation will become chaotic if some sort of international control is not exerted in space beyond 53 miles. But he proposes that there should be a "contiguous zone" up to 300 or even 600 miles in which nations would maintain sovereignty. The lower limit would embrace the area in which atmospheric drag gradually slows an earth satellite, until it falls to earth. The higher figure is suggested in order to give nations some control over missile flights above their territory--not only military missiles, but ultimately those carrying mail and passengers.

The clarity of Haley's proposed boundary has been muddled considerably by the announcement that the Air Force plans to fly an experimental aircraft to more than twice the altitude at which aerodynamic lift is gone. The X-15 will thus soar well above the perigee of Explorer III (110 miles) and may reach that of the first three sputniks (145 to 150 miles). It will accomplish this, however, much as an old car gets over a hill--by gaining maximum speed on the straightaway and counting on its weight and speed to carry it up the grade. So the X-15 is expected to achieve a speed of some 5,000 miles an hour in level flight with most of its weight supported by aerodynamic lift; then turning upward, and with a final booster from its rocket motor, it will coast into the realm of satellites, gliding back to earth immediately, its energy exhausted.

The significance of this vehicle is that it blurs the distinction between aircraft and spacecraft and may indeed be the prototype of future space ships. The first human to be placed in orbit is likely to be borne in a winged craft, not a pure rocket. The wings will give him greater stability and control in take-off and ease his glide back to earth. And before space stations are available to be used as transfer points from aircraft to spacecraft, the descendants of the X-15 may be so highly perfected that flight will be an unbroken spectrum from atmosphere to space. While this does not invalidate the distinction between zones of aeronautical and astronautical flight (even Under Secretary of Defense Quarles has supported the concept as a way of distinguishing between air space and outer space), it becomes somewhat more doubtful that the boundary proposed by Haley will be accepted as the limit of national sovereignty.

III

Whatever the force of logic or of precedents already set, the United States is not about to renounce its right to make territorial claims in outer space. Testifying last May before the Special Senate Committee on Space and Astronautics, Loftus Becker, Legal Adviser to the State Department, said that the Antarctic affords "a very apt analogy." While the United States has made no territorial claims in Antarctica, and has recognized none, it has expressly reserved its right to do so on the basis of its activities there. As recently as last May, when the United States invited 11 other nations to confer on a treaty for Antarctica, President Eisenhower took the precaution to reaffirm that "my Government reserves all of the rights of the United States with respect to the Antarctica region, including the right to assert a territorial claim or claims."[v]

"So, too, in outer space," Mr. Becker told the Senate Committee, "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."[vi] The right to claim sovereignty in space was specified.

Whatever validity this analogy may have from a legal standpoint, the political and practical differences between space and Antarctica are impressive. Antarctica is a clearly defined continent; outer space, as we have seen, is hardly more than a conception, which so far has defied definition. Occupation of Antarctica, and with it the exercise of political control, is feasible, whereas the means to exert sovereignty in space is unknown and perhaps unknowable. Moreover, a dozen nations have conducted activities in Antarctica, and seven (all of them our allies) have made territorial claims which we cannot disregard. In contrast, only two countries--the United States and the Soviet Union--have thus far established even the remotest claim to sovereignty in space on the basis of activities there. Yet no country has staked a claim, none has renounced the right to do so, and all have an interest in space incomparably greater than that in the Antarctic. Therefore, the arguments for internationalizing space are more compelling and in some respects the possibility is more practicable politically.

Will the moon and planets be other Antarcticas? Certainly no claim of national sovereignty on the moon would be recognized and a legal claim would be extremely difficult to establish. Effective occupation by one country seems highly unlikely. The sector principle by which Antarctica has been divided into so many slices of political pie is inapplicable to a sphere. And in a land without seas one cannot claim sovereignty on the hinterland principle by which so much of the Western Hemisphere was claimed by the European Powers. And, having no modern equivalent in authority of Pope Alexander VI, who arbitrarily divided the New World between Spain and Portugal at the end of the fifteenth century, we must foresee the possibility that one day the Soviet Union and the United States will assert conflicting claims on the moon. Indeed the President's Science Advisory Committee is already concerned that some foolish gesture of nationalism, such as the explosion of an atomic bomb on the moon, will contaminate the oldest of Earth's satellites before scientists can examine its natural environment.

Though most responsible opinion holds that the moon will be of little military significance, earth dwellers would feel exceedingly uncomfortable if one of the major Powers established control there. Precisely because of its limited military potential, it might be possible and desirable to place the moon under international control. This could be accomplished without reference to more complex questions of sovereignty in space. Though certain risks are involved in taking political action where there are so many unknowns, they seem on the whole less awesome than alternative lines of development. Fifty years of exploration of Antarctica have done nothing to reduce the desirability of internationalizing that continent, yet political developments in that half-century have vastly complicated the task.

IV

Thus far we have avoided discussion of what has become the chief obstacle to agreement on outer space, namely, the involvement of these questions in disarmament negotiations. Nearly nine months before the first sputnik was launched, the United States declared in the United Nations:

No one can predict with certainty what will develop from man's excursion into this new field. But it is clear that if this advance into the unknown is to be a blessing rather than a curse, the efforts of all nations in this field need to be brought within the purview of a reliable armaments control system. The United States proposes that the first step toward the objective of assuring that future 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.[vii]

At the disarmament conference in London the following summer, this proposal became Point VI of the Allies' 11-point program. Specifically, the plan was to "establish a technical committee to study the design of an inspection system which would make it possible to assure that the sending of objects through outer space will be exclusively for peaceful and scientific purposes."[viii] In almost identical language, this proposal was incorporated in a 24-Power resolution adopted by the General Assembly last November by a vote of 56-9, with the Soviet Union dissenting.

In his correspondence with Marshal Bulganin last winter President Eisenhower reiterated his proposal but indicated a willingness to discuss control of outer space separately from other items on the disarmament agenda. Yet he gave the impression that the primary purpose of the American proposals still was to prevent intercontinental ballistic missiles from entering the arsenals of the world. Indeed, Secretary Dulles made this quite explicit at a press conference.[ix] Since we did not as yet have even our first small satellite in orbit, and since we were considered two years behind the Russians in the development of I.C.B.M.s, the United States was fair game for Mr. Khrushchev's ridicule. "The thought behind this U.S. proposal," he said in a major speech two weeks before Bulganin's formal reply, "is to ban weapons which can threaten U.S. territory but to retain control of all other types of weapons . . . . the Soviet Union would be prepared to discuss the intercontinental ballistic missile, if the Western Powers would agree to ban atomic and hydrogen weapons, stop testing them and close down the military bases with which the U.S.A. has encircled the Soviet Union and other socialist countries."[x]

We can hardly be surprised at this response. And, however necessary or desirable it may have been to include I.C.B.M.s in disarmament proposals, we can afford to recognize that banning missile weapons is not a prerequisite to agreement on other aspects of control of space. After nearly two years of linking questions involving the orderly development of space exploration with the problem of military missiles, the whole range of space questions is still on dead center, except for limited coöperation achieved through the International Geophysical Year.

The time now seems ripe for the United States to make some specific proposals relating to scientific exploration, navigation and jurisdiction in space. For despite the military potential of many developments in the science and technology of space, the question of missile weapons is clearly separable from more likely areas of international coöperation. As a British authority has pointed out, "The fact that air forces can inflict vast destruction did not prevent the Paris and Chicago Conferences from considering rules of navigation in air space."[xi]

That the State Department is coming to share this view is indicated by the testimony of its legal adviser previously cited. Mr. Becker acknowledged that "there are possible arrangements for international coöperation in the peaceful scientific and technological areas of outer-space activity. These arrangements could be pursued independently of control arrangements over military uses of outer space." The international machinery for this, he said, "might well be established under the auspices of the United Nations."[xii] This would conform to the recommendation of a majority of legal experts as well as opinion within the U.N. itself. Sir Leslie Munro, the outgoing President of the General Assembly, has said that the United Nations "is the proper and, indeed, the only appropriate body to establish a code of law and practice to deal with transit through outer space and jurisdiction over such parts of it as men may reach."[xiii] He recommended a conference of lawyers, scientists and diplomats preliminary to a full-dress Assembly debate. So far no action has been taken, but the topic is on the agenda this fall--with the full support of the Secretary General.

V

One criticism that may properly be leveled at the space lawyers is that, in trying to anticipate every conceivable legal problem in outer space, they have given very little attention to some of the most immediate ones. For example, perhaps the single most pressing question--one likely to arise within less than a year--is, what will be the Soviet reaction to a United States satellite mounting a camera or television equipment? For two years we have been trying without success to establish the principle of "open skies." Now both the United States and the Soviet Union are working on instruments which will impose open skies with a vengeance-- unless reconnaissance satellites can be, and are, shot down.

We do not know the Soviet capability. Indeed we do not even know for certain that Russian satellites have not already relayed photographs of the United States to Moscow. Nor are we likely to know when this has been achieved, while the Soviet Union will quite probably know when our first reconnaissance satellite is put in orbit--if indeed they are not told in advance. Will such an American satellite mysteriously disintegrate on one of its early trips around the other side of the world? And will we be told it "must have hit a meteor"?

The situation is complicated by the fact that the photographing of clouds is a long-established and legitimate activity in meteorology. Here we have a precedent that is not encouraging. Many Powers, including the Soviet Union, have for many years used high-flying balloons for meteorological research. Traveling at up to 90,000 feet, they are capable of circumnavigating the globe. In February 1956 the Soviet Union protested passage of balloons through its air space. It first referred to them as propaganda balloons and objected that they were a menace to navigation. But an exchange of notes made clear that its real grievance was not so much against the propaganda balloons being released under private auspices in Western Europe as against United States meteorological balloons which did carry cameras and could have been either scientific or military in purpose. While affirming their scientific purpose, Mr. Dulles refrained from asserting the right of United States balloons to pass through Soviet air space, and so far as is known, the practice was at least temporarily stopped.

History may soon repeat itself. Almost all authorities are agreed that an earth satellite is a very cumbersome instrument for delivering a nuclear bomb on target, but its importance for reconnaissance and for communication, including radio and radar jamming, is not disputed. Since these activities have both scientific and military uses, it is going to be very difficult to distinguish between them. But surely these, rather than missile weapons, represent the topic on which negotiations with the Russians might be important and fruitful.

Consistent with our appeal for "open skies," we might well recommend that reconnaissance by an orbiting satellite be accepted in international law. Although it would be argued that we stood to learn more than the Russians by this device, there would be offsetting advantages for the Soviets. The U.S.S.R. is enveloped in clouds far more than the United States; in some parts of Russia there are only two or three clear days a year. Moreover, world opinion would not take kindly to the Soviet Union shooting down all American satellites, including those gathering scientific data, and as launchings became more frequent the Russians could never be sure which might contain photographic equipment.

The suggested agreement should apply only to satellites in orbit. At such time as space vehicles have a virtually unlimited supply of power (as, for example, when nuclear power can be converted directly into electricity without the intervening heat stage), machines will be able to hover anywhere at any altitude without regard to gravitational and centrifugal forces. For a good many years, however, we need not worry about "stationary" spacecraft "squatting" above one country. This could be accomplished today only by a satellite following a perfectly circular orbit precisely on the equator at a distance of some 22,500 miles. Such a satellite might arouse the displeasure of Colombia or Indonesia, but it could play no critical rôle in the cold war, except possibly as a relay station for radio propaganda or jamming.

"We hope," wrote a Soviet air expert, "that the considerations of military danger which have influenced the doctrine of air sovereignty will disappear with the apparition of crafts circulating at a fantastic altitude and with unbelievable speed."[xiv] That hope, expressed in 1927, is unfulfilled, and the "apparition" is in the heavens. We cannot assure that outer space will be "devoted exclusively to peaceful and scientific purposes," but we can encourage these objectives by a number of measures: by supporting the United Nations' interest in discussing specific aspects of space exploration and jurisdiction; by disengaging the missile problem so that possible agreements on space do not get bogged down in disarmament negotiations; and by exercising somewhat more candor in stating what we are prepared to do to achieve the high objectives we have pronounced.

If we insist upon waiting until all the answers are in from outer space, then politically we will not get off the launch pad. Any proposals we make, any agreements we support, will involve risks, but they need not be out of proportion to the mortal danger in which we now exist. Having achieved such sophisticated means of destroying one another here on earth, we should not be daunted by fear of the unknown potentialities of space. If it is inconceivable that one nation can control space from the earth, it is also inconceivable that one nation should be allowed to control the earth from space. To prevent this we must rely heavily on Western science and technology. But we should also avail ourselves of the rule of law where strong public sentiment for it exists, and where national interests provide assurance that agreements will be largely self-enforcing.

[i] G. Zadorozhnyy in Sovetskaya Rossiya, October 17, 1957. Summarized in Survey of the Soviet Press (28). See also The Times (London), October 18, 1957, p. 7. Approximately 97 percent of the earth's atmosphere lies within the first 18 miles.

[ii] However, The New York Times of September 2 reported a return to the subject in a Soviet legal journal in which the freedom of outer space is reasserted.

[iii] Nicholas Katzenbach, "Law and Lawyers in Space," Bulletin of the Atomic Scientists, June 1958, p. 220.

[iv] John C. Cooper, "Flight Space and the Satellites," Astronautics, March 1958, p. 70.

[v] The New York Times, May 4, 1958, p. 19.

[vi] Department of State Bulletin, June 9, 1958, p. 966.

[vii] Department of State Bulletin, February 11, 1957, p. 231.

[viii] Ibid., September 16, 1957, p. 453.

[ix] See The New York Times, January 17, 1958, p. 4.

[x] Speech at Conference of Foremost Belorussian Republic Agricultural Personnel, January 22, 1958, The Current Digest of the Soviet Press, March 5, 1958, p. 20.

[xi] Michael Aaronson, "The Legal Control of Space," The Listener, December 19, 1957, p. 1019.

[xii] Department of State Bulletin, June 9, 1958, p. 964. On September 2, Henry Cabot Lodge, chief United States delegate to the U.N., gave further substance to this possibility in a speech before the American Legion, but he did not specify what areas or instruments of coöperation the Government had in mind.

[xiii] The New York Times Magazine, February 16, 1958, p. 82.

[xiv] Quoted by E. Pepin, "The Sputnik--Legal Problems," Canadian Institute of International Affairs: Notes, December 12, 1957 (mimeo.), p. 1.