LEGAL PROBLEMS CREATED BY THE SPUTNIK*
Prof. E. Pipint
Sputnik I was launched on October 4, i.e., three days before the opening in
Barcelona of the Eighth Congress of the International Astronautical Federation.
Sputnik II is also in space since the 3rd of November. Perhaps another kind of
machine is at this moment on its way to the moon! And today the Russian
scientists have said: “We are now on the eve of creating a new type of Soviet
transport, the interplanetary. We believe that, within the next five to ten years,
flights of people in cosmic space, possibly with a landing on other planets in our
solar system, will become a reality.”
Was such a realization a surprise? Certainly not for those who read regularly
the Astronautical publications or who have attended the meetings of the Feder-
ation of Astronautical Societies. The Russian scientists have mentioned their
research many times, not their intentions, but their projects. I remember
that last September, in Rome, at the Eighth Congress of the same Federation,
very interesting communications were made by the Russians on interplanetary
travelling; the same week, also in September, I was in Barcelona at the time
the Committee for the preparation for the Geophysical Year was in session.
There the Russian representatives indicated the Soviet intention of launching
satellites in order to complete the American satellite program announced by
the White House in 1955. I had the opportunity to mention the prospective
launchings – American and Russian –
in an address which I made in Paris
late in September 1956 at the “Acad&nie des Sciences Morales et Politiques”
and which was published in English in the McGill Law Journal.1 Since that
time notification of the wave lengths to be used by the Russian satellites has
been published all over the world, about three months before the launching
of the satellite itself; and the details concerning the establishment and the
operation of the important network of stations for the observation of the
satellite are contained in a yery interesting paper presented to the recent
Barcelona Conference.
The important scientific achievement constituted by the launching of satellites
and its legal consequences should not have been a surprise for lawyers special-
izing in air law. In 1927, an important Russian publication on air law, called
“Problems of Air Law”, contained an article by a former General Inspector
of the Russian Civil Aviation, in which it was said: “In spite of the principle
of unlimited liability over airspace, we should recognize the importance of the
principle on which is based the Zone theory, as far as the flights at great
*Lecture given on November 6th, 1957, to the Canadian Bar Association (Quebec
Maritime and Air Law Section).
tDirector of the Institute of International Air Law, McGill University.
1(1957), 3 McGill L. J. 70.
No. 13
LEGAL PROBLEMS OF SPUTNIK
altitude and the interplanetary communications are concerned. We hope 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.”
I will limit my comments today to the problems concerning satellites in
peace time, with special attention to questions of safety.
Prior to the launching of the first Sputnik, there were some discussions
among lawyers, especially in America, with respect to the problems which
may result from the launching of an American satellite as announced by the
White House in July,. 1955.
The first question was: is such a launching contrary to any conventional or
customary rule of International Public Law?
I will answer that question as I did in Barcelona last September, i.e.,
in the negative.
The only Convention which may be considered as dealing with the circula-
tion of certain machines or crafts above the surface of the earth is the Chicago
Convention. We should note two points: (1) Pursuant to that Convention, the
Contracting States recognized each other’s sovereignty over the air space
above their territory; such recognition is often considered to be a customary
rule of International Public Law; (2) All the provisions of that Convention
refer to machines called “aircraft”,
the definition thereof being left to an-
nexes.
The U.S.S.R. is not a party to the Convention, and if the parties to the
Chicago Convention are obliged, in accordance with a customary rule of
international law, to recognize the sovereignty of any State over its territory,
including the U.S.S.R., the contrary is not true; the U.S.S.R. has not re-
cognized such a customary rule in spite of the terms of its national Air Code.
After the announcement made by the White House in July, 1955, certain
American lawyers were very much concerned with the possibility of a protest
to be made by the U.S.S.R. against the American project. A very long paper
prepared by Mr. Haley, at that time General Counsel of the American Rocket
Society, attempted to explain that, in the absence of a protest from any State,
particularly from those members of the International Committee for the
Geophysical Year –
the United States
might consider that their project had received a tacit consent.
which includes the U.S.S.R. –
Now, as the U.S.S.R. has repeatedly announced their intention of launching
a satellite and as no protest has been made, I also think that we may arrive
at the same conclusion as Mr. Haley.
The second question to be considered is as follows: In the case when the
State responsible for the launching of a satellite is party to the Chicago Con-
McGILL LAW JOURNAL
[Vol. 4
vention, should the circulation of such a satellite be governed by the rules
contained in the Chicago Convention and its annexes?
My answer is “no”, because a satellite is not an aircraft within the meaning
of the Convention and it circulates outside what is called air space in the Con-
vention, an expression which corresponds to the word atmosphere. I do not
wish to amplify these points which I have largely considered in my article
published in the McGill Law journal,2 and with which most of the lawyers
are in agreement.
We should now consider the problems which may well arise in the near
future when dozens of satellites will be circulating around the earth outside
the atmosphere; American satellites will probably join the Russian satellites
next year and the Germans have announced the launching of satellites within
two years; other countries may follow.
Should such a circulation be absolutely free, without any regulatory rule?
We should not forget the following points:
1-A satellite will first ascend through the atmosphere;
if during such
ascent, it does not touch the atmosphere of another Sovereign State, there
would not be any legal or political difficulty; nevertheless, even in that case,
it may interfere with the authorized international navigation of some foreign
aircraft and cause damage.
2-As has recently been mentioned by the Russian scientists, it is possible
that certain parts of a rocket may come back to the earth without being com-
pletely disintegrated; therefore, damage may arise on the earth to persons or
to property.
3-If there are a number of satellites outside the atmosphere at the same
time certain risks of collision may also occur; I do not suppose that they may
be guided one against another, because we are still speaking of peace time.
4-If some of the satellites ascending or descending cause damage, it will
be necessary to identify which satellite is the author of the damage; it seems
necessary to provide for certain identification marks.
5-Assuning for the moment that all the satellites are used only for
scientific purposes, they are in need of some radio communication with the
earth and a certain distribution or attribution of wave lengths will be necessary
in order to avoid interference. At a later date, when such crafts would be
used for transportation, again telecommunication connections will be essential.
This rapid review proves that the preparation of a new Convention is essen-
tial in order to complete the provisions of the Chicago Convention. I say:
a new Convention and not an amendment to the Chicago Convention.
All the lawyers who have considered the problems of the circulation of
various machines, or devices, or crafts, outside the atmosphere are in agree-
2 See footnote 1, supra.
No. 1]
LEGAL PROBLEMS OF SPUTNIK
69
ment on the necessity of such a convention. But they differ largely on the
points to be covered by it. Up to now their attention was concentrated, either
on the definition of air space in order to determine the extent of national
sovereignty, or on the division of air space into zones, giving each one a specific
legal status.
Would a definition of air space serve a practical purpose? It has been and
it still is impossible to determine in a precise manner the height of what is
called the “atmosphere”; the most advanced scientists also agree that the
height of the atmosphere is at variance above the different parts of the earth,
and they are expecting the results of the Geophysical Year to provide a better
knowledge. However, assuming that it would be possible to fix an altitude for
the air space, the figure would apply only to the terrestrial surfaces, i.e., to
1/5 of the earth’s surface.
The Maritime lawyers present here certainly know that, in the draft conven-
tion circulated to States for the forthcoming Conference on the Law of the
Sea, the freedom of flight over the high seas has been inserted as one of the
essential freedoms.
However, recently, at the Barcelona meeting which I attended, the Federa-
tion of Astronautical Societies authorized its President to establish a Com-
mittee composed of three distinguished lawyers and four, not less distinguished,
scientists, in order to prepare a definition of air space, to be communicated
to the United Nations. In my view the work of such a Committee may not
give any practical result for the solution of the problems concerning the
circulation of any device outside the atmosphere.
The division of air space into zones is a very old idea, which was discussed
at length during the early days of air law, i.e., between 1900 and 1914, and
which has been recently resurrected by Professor Cooper,
the excellent
historian of Air Law. Naturally, several different proposals have been made
by Professor Ambrosini, by Mr. Haley and by some others. I think that we
should give some attention to the proposal of Professor Cooper, presented
with variations in Mexico in 1951, in Washington in 1956, and more recently
in a letter to the London Times of September 2, 1957. He proposes a division
into three zones:
First Zone –
full sovereignty of States to the altitude where an aircraft,
as defined in the Chicago Convention, is able to circulate: such a zone would
be called “territorial air space.”
Second Zone –
extension of sovereignty up to 300 miles above the surface
of the earth, a zone in which non-military aircraft may enjoy a right of transit
for ascent and descent: such a zone would be called “contiguous zone”.
Above that Zone, the space would be entirely free.
In his letter to the Times, Professor Cooper suggested the extension of the
contiguous zone to 600 miles.
McGILL LAW JOURNAL
[Vol. 4
That letter, and the proposal of Professor Cooper in general, have been
the objects of comments by a very able lawyer and specialist in Air Law,
Mr. Shawcross, co-author of the classic treatise of Air Law by Shawcross and
Beaumont. These comments appear in a letter of September 5 addressed also
to the London Times.
I agree entirely with the views of Mr. Shawcross and I ask your permission
to read that letter.
Sir, –
I hesitate to differ from my friend Professor Cooper, whose letter you
published on September 2, on the subject “Who owns the upper air?”
He has contributed to this fascinating topic much erudite study and literature;
but his views have changed. The proposition that the upper space (whether at a
distance of 600 miles or more) should be held to be within the territorial sov-
ereignty of the subjacent State is unrealistic.
In the first place, there is a distinction between navigable airspace, the outer
atmosphere, and the limitless space which lies beyond.
Secondly, how can the space be defined? The earth being an imperfect and
rotating sphere, the vertical walls nationally drawn from the frontiers or coasts of
any particular territory extended to 600 miles or beyond would form a kind of in-
verted cone and would in practice, if not in theory, impinge upon the adjacent ter-
ritories or high seas.
In the third place a rocket proceeding at such distances (the words flying and
height are inapt in this context) from the earth and at round-the-world-in-an-hour
“speeds”
is incapable of detection, much less of interception, from the territory
“above” which it is at any particular moment. The words “speed” and “above”
are equally inapt
Professor Cooper’s thesis appears
to the
principl6 in International Law of sovereignty over territorial waters. This was
originally founded on the maxim that a State’s territory extended to the sea within
range of its coastal artillery. Long since obsolete, this maxim never had any real
application to the air.
to stem from a supposed analogy
The true view, I suggest, is that the stratosphere and the space beyond are in-
capable of being the subject of dominion, and should be classed by lawyers as res
nullius or res omnium communis. This, if I am right, emphasizes rather than
diminishes the need for that International Convention proposed by Professor
Cooper. But it should be based not upon sovereignty in the air or space but upon
the permitted use of space whether by warlike projectiles, by man-made earth
satellites or by pollution
(e.g., weather
control) of the atmosphere.
(e.g., radioactive fall-out) or dilution
I do not wish to abuse your attention, but I think that, before terminating
this expos6, I should make two observations, one on a question of terminology,
the other on the possible contents of a new convention.
(1) Terminology –
In the various studies published on the problem,
we may find many different expressions, like: “upper space,” “upper atmo-
sphere,” “outer space,” and also in the proposal of Professor Cooper: “ter-
ritorial air space,” “contiguous air space.” These last two terms have been
greatly criticized by the air lawyers, always proud of the autonomous character
of their discipline. I wonder if it would not be preferable to use only two
expressions:
–“atmosphere,”
for the zone which is subject to national sovereignty in
accordance with the Chicago Convention; and
No. 1]
LEGAL PROBLEMS OF SPUTNIK
–“space,”
for the zone outside the atmosphere. Such a suggestion was made
many years ago by an eminent “avocat” of Brussels, Mr. Emile Laude,
who wrote in 1910 as follows:
“Le droit a~rien ne s’appliquera
jamais qu’au droit r6gissant l’air
proprement dit, c’est-i-dire la couche des gaz respirables. .
. Est-ce i
dire que nous ne puissions pr~voir les solutions juridiques que nos des-
cendants auront A donner a toutes les questions soulev~es par l’utilisation
de la couche A gaz irrespirables et de la couche d’6ther oil baigne notre
plan~te? . . . Un droit nouveau r~gira des relations juridiques nouvelles.
Ce ne sera plus du droit a6rien . . . Mais
coup sfir il s’agira de Droit
de l’espace.”
(2) Contents of a new Convention. –
Such a convention should deal
specially with the problems resulting from the circulation (I will not say:
navigation, or flight) of space vehicles, called space crafts or space ships
(I would prefer “space craft” in opposition to “aircraft”).
Among the provisions which might be inserted therein, it seems to me that
the convention should provide for:
-a previous notification of any launching of space crafts (satellites, rockets,
missiles, etc.) ;
-an undertaking for the exchange of information resulting from observa-
tions made with space crafts;
regulation concerning the choice of wave lengths;
-some
-another
-an undertaking for an indemnification of any damage resulting from the
for the identification of the craft;
circulation of space craft;
-a general delegation of authority to an agency –
already in existence or
to be created –
for the issuance of any necessary regulations.
I sincerely hope that some international agency or a government will take,
in the near future, the lead for the preparation of a convention. Its universal
acceptance would benefit, not only the immediate future of scientific research
in space, but also the safety of the present circulation within the atmosphere
and of the people on the surface; it would also prepare the future of the
circulation of man in space.
THE McGILL
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