Reconnaissance Satellites:
Legal Characterization and Possible
Utilization for Peacekeeping
Joseph R. Soraghan *
Since 1957, outer space has been open to exploration by man.
Perhaps predictably, space endeavors almost immediately included
military activities. Although the world was technically “at peace”
during the advent of space exploration, mistrust and fear of the
military capabilities of opposite camps ran high. The desire of the
world powers to gather intelligence information was extended to
outer space, via the reconnaissance satellite.”
In January, 1967, the United States, the Soviet Union, Great
Britain and fifty-nine other nations signed the Treaty on Principles
Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Celestial Bodies (hereinafter
called the Space Treaty), the drafting of which had been completed
by the United Nations Committee on the Peaceful Uses of Outer
Space late in 1966.2 When the Treaty is ratified by five governments,
inhuding the Soviet Union, the United States and Great Britain,
and thus comes into force,3 it will become the most important
instrument to date for the ordering of man’s activity in space. This
landmark treaty is in the nature of a culmination of efforts in the
United Nations, which were earlier evidenced by Resolutions 1721
(XVI) 4 and 1962 (XVIII).5 Neither the Space Treaty nor either
of these resolutions, however, deals explicitly with reconnaissance
activities carried on from space. It is thus necessary to provide a
background for interpretation of the Treaty and resolutions, and
Of the Missouri Bar.
1 While discussion of reconnaissance satellites has continued for some time,
no significant attempts to define precisely the term “reconnaissance” or other
important terms have apparently been made. In particular, the Soviet assertion
that all gathering of “intelligence information” is illegal, as will be discussed
below, points up the importance of the functional delineation of terminology in
attempting to legally characterize these activities.
2 N.Y. Times, Jan. 28, 1967, p. 1, col. 8.
3 Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, Including the Moon and Celestial Bodies, Art. 14, pars.
2 and 3. The text of the Treaty is found in N.Y. Times, Dec. 9, 1966, p. 18.
4 YEARBOOK OF THE UNITED NATIONS, 1961 (1963).
5 YEARBOOK OF THE UNITED NATIONS, 1963 101 (1965).
No. 3]
RECONNAISSANCE SATELLITES
the major space participants on
to determine the possibility of legal characterization outside these
(1) present and analyze the
instruments. It is proposed here to
views of
legal
characterization of reconnaissance satellites; (2) to note the political
and technological bases of these views, and,
in the light of
political realities and the present and proximate
technological
capabilities of these satellites, to examine the prospects for legal
characterization and utilization to keep the peace and police arms
control measures.
the proper
(3)
I. The Legal Regime of Outer Space
A. The Legality of Satellite Overflight
Article I of the Space Treaty provides that “outer space, including
the moon and other celestial bodies, shall be free for exploration
and use by all states…” This is, however, only a formalization
of the view that has been generally accepted for some time that the
legal regime of outer space is one of qualified freedom.6 The United
Nations Resolution 1962 (XVIII), adopted unanimously in December,
1963, proolaimed that outer space is free for the use of all states
according to international law.7 Aside from international pronounce-
ments, it is generally argued that the lack of protest by overflown
nations since the advent of satellite overflights that these constituted
violation of their territorial sovereignty has caused the “freedom”
rule.8 For practical reasons,
principle
sovereignty is rejected because valuable space endeavors, by their
nature, must be unrestricted by territorial boundaries.9
to become a customary
By both customary international law and by multilateral agreement
in the Paris and Chicago Conventions, however, territorial sovereignty
6 E.g., Galina, A., On the Question of Interplanetary Law, Sovetskae Gosu-
darstro i Pravo, No. 7 July, 1958, pp. 52-58, reprinted in S. Doc. No. 26, infra
note 10 at 105; Beresford, Surveillance Aircraft and Satellites, A Problem of
International Law, 27 J. AIR L. & Com. 107, 108-09 (1960).
7 YEARBOOK OF THE UNITED NATIONS, 1963 110 (1965).
8 LIPSON AND KATZENBACH, REPORT TO NASA ON THE LAW OF OUTER SPACE 15
(1960); Note, 61 COLUM. L. REv. 1074, 1079 (1961); Bloomfield, The Prospects
for Law and Order, in BLOOmFIELD, OUTER SPACE. PROSPECTS FOR MAN AND
SOCIETY 150, 159-160 (1962); Jacek (Counselor, Polish Mission to the United
Nations), Selected Problems of National Sovereignty with Reference to the
Law of Outer Space, 1961 PROCEEDINGS, AMER. SOC. INT’L LAW 171, quoted by
WOLFE, CUSTOM IN PRESENT INTERNATIONAL LAW 64 (1964).
9 E.g., Note, 61 COLUM. L. REv. 1074, 1079 (1961); Jenks, International Law
and Activities in Space, 5 INT’L & CoMP. L. Q. 99, 103 (1956).
McGILL LAW JOURNAL
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to
the airspace above national
territory.’0 Thus
does extend
acceptance that the legal regime of outer space is not that of
sovereignty of the underlying state raises controversy over the
location of the boundary between airspace and outer space. This
question has drawn numerous proposals by scientists and lawyers, 11
which have in turn inspired voluminous analyses.12 Notwithstanding
that a number of these proposals have set the boundary high enough
to include at least portions of presently common orbital altitudes,
it is generally agreed that the boundary, if it existed, would be
somewhere above the altitude now in common use for aviation
purposes, “and not higher than, roughly, the probable perigee of
durable satellite orbits.” 13
B. Restriction to Peaceful Purposes
Even before
the advent of satellite activity, many nations,
and in particular the United States and the Soviet Union, have
ostensibly desired that outer space be devoted exclusively to “peaceful
uses.” In January, 1957, the United States urged in the United
Nations that studies on disarmament include space activities, and
in August of that year the United States was joined by Canada,
France and Grea&t Biii in in proposing United Nations inspection
of spacecraft to insure that they served peaceful purposes only.14
10 Customary law: Report of the Ad Hoc Committee on the Peaceful Uses
of Outer Space Fourteenth Session, General Assembly, 1959, U. N. Doe. No.
A/4141, Agenda item 25, p. 25; LipsoN AND IATZENBACH, supra note 8 at 15.
Paris and Chicago Conventions: Symposium Legal Problems of Space Explora-
tion, S. Doc. No. 26, 87th Cong., 1st Sess. 1219, 1222-1240 (1961).
l These are summarized and analyzed in LIPSON AND KATZENBACH, op. Cit.
supra note 8 at 14.
12 E.g., Haley, Survey of Legal Opinion on Extraterritorial Jurisdiction,
reprinted in S. Doe. No. 26, supra note 10, at 719; Bloomfield, supra note 8
at 152; SCHIcK, Wno RuLEs THE SxIEs: SOME POLITICAL AND LEGAL PROBLEMS
OF THE SPACE AGE 16-20 (1961); Christensen, Ronald, Soviet Views on Space
Law, May, 1961 (typewritten manuscript in Yale Law School Library, 1961);
Note, 61 CoLUm. L. REv. 1074 (1961).
13 LIpsoN AND KATZENBACH, supra note 8, at 15. Accord, Note, 61 COLUM.
L. REv. 1074 (1961). The International Radio Regulations define “Spacecraft”
as including “any type of space vehicle, including an Earth satellite … whether
manned or unmanned…” Reg. 84E, quoted by JENxS, SPACE LAw 189 (1965).
U. N. General Assembly Resolution 1721
(XVI), concerning registration of
spacecraft, refers to objects launched “into orbit and beyond.”
14 LIPsoN AND KATZENBACH, op. cit. supra note 8, at 5. These early attempts
by the United States were considered by the Soviet Union as thinly disguised
attempts to ban Soviet ICBMs, while maintaining the American strike force
on bases in Europe, and were rejected. Korovin, E., On the Neutralization and
(Moscow), No. 12,
Demilitarization of Outer Space, International Affairs
1959, p. 82.
No. 33
RECONNAISSANCE SATELLITES
The National Aeronautics and Space Act of 1958 declared that
“activities in space should be devoted to peaceful purposes for the
benefit of mankind.” 15 The Soviet Union, shortly after Sputnik I
was launched, submitted a proposal in 1958 to the United Nations
General Assembly for international cooperation in the exploration
of cosmic space, and the restriction of use of space to peaceful
purposes. 6
In December, 1961, the United Nations General Assembly adopted
Resolution 1721 (XVI), which affirmed that international
law,
including the United Nations Charter, applies to outer space.17
Article 2, paragraph 4 of the Charter provides that “all members
shall refrain in their international relations from the threat or use
of force against the territory or political independence of any state,
or in any other manner inconsistent with the Purposes of the
United Nations.” This language, however, does not restrict inter-
national activities to those of a peaceful nature, unless by “peaceful”
is meant avoidance of a “threat or use of force.” Resolution 1962
(XVIII) ,18 unanimously adopted in December, 1963, merely reaffirms
in regard to peaceful uses of space.19 The
Resolution 1721 (XVI)
recent United Nations Space Treaty goes further than any previous
instrument in establishing the doctrine of “peaceful purposes,” but
conspicuously falls short of complete crystallization of thaft doctrine.
While the major portion of the treaty provisions apply throughout
outer space, article 4, in restricting activities to those of a peaceful
nature only, applies to the moon and celestial bodies only.20
‘5 Public Law 85-568, sec. 102(a). The same Act provided for military space
activities by the Department of Defense and the Armed Services.
16U. N. Doc. No. A/3818 (1958). This proposal, however, required dismantling
of United States military bases abroad, and was not acceptable to the United
States.
17 YEARBOOK OF THE UNITED NATIONS, 1961
IS YEARBOOK OF THE UNITED NATIONS, 1968 101 (1965).
19Ih the preamble of Resolution 1962
(19683).
the General Assembly
studiously avoids any language which might be interpreted as
implying a
restriction to peaceful purposes. Similar vague references to “peaceful uses”
were made in the preambles to Resolution 1721 (XVI) and Resolution 1802
(XVII), of December 14, 1962.
(XVIII),
20 Article 4. Both the United States and the Soviet draft treaties applied the
“peaceful purpose” restriction and the proscription of military activities to the
moon and celestial bodies only, and neither nation succumbed to repeated exhorta-
tions by the representatives of other nations to broaden the coverage of these
clauses. E.g., U.N. Doe. Nos. A/AC.105/C.2/SR.62, Oct. 20, 1966, p. 4 (United
Arab Republic); A/AC.105/C.2/SR.66, Oct. 21, 1966, p. 3 (Argentina). A fruit-
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In spite of the equivocal nature of authoritative commitments
to restriction of space to “peaceful uses,”
the fact that these
semi-commitments have been made, the periodic charges made that
certain space activities of other space participants are not peaceful, 21
and the general consensus among writers,22 make it useful to assert
that any space activity is internationally disapproved, if not illegal,
if it is not “peaceful” in nature. Of course, controversy presently
rages over the term “peaceful.”
less draft proposal to effect this was submitted by Mr. Rao of India. A/AC.105/C.
2/SR.66, Oct. 21, 1966, p. 6. Explaining this recalcitrance, Mr. Goldberg of the
United States said:
… it would not be practical or realistic to broaden the scope of every
provision, irrespective of the subject matter. In addition, a practical con-
sideration was involved: a treaty should be drafted on which there was a
genuine prospect of agreement. Efforts should be concentrated on achieving
what was possible and should not be abandoned because the ideal could not
be achieved at once. U.N. Doc. No. A/AC.105/C.2/SR.65, Oct. 21, 1966, p. 10.
It would seem that the United States and the Soviet Union, in view of the previous
history between these two nations of disagreement upon the meaning of “peaceful
purposes” and upon the conformance of military activities to the “peaceful”
restriction, sought to avoid the necessity of resolving these conflicts with regard
to activities now being carried out in outer space (including reconnaissance),
thus allowing both nations to agree to the present wording of the treaty. See
statement of Representative Goldberg in Haley, Space Talks Reach the Quick,
Astronautics and Aeronautics, Sept. 1966, p. 4. When either of these nations
seeks to carry on reconnaissance from celestial bodies, however, the treaty will
require resolution of these questions.
21 Soviet charges that United States space activities are non-peaceful: e.g.,
Mader, U.S. Militarist Plans in Space, International Affairs (Moscow), No. 8,
1965, p. 55; Korovin, Outer Space Must Become a Zone of Real Peace, Inter-
national Affairs (Moscow), No. 9, 1963, p. 92; Zhukov, Practical Problems of
Space Law, International Affairs (Moscow), No. 5, 1963, p. 28; see Crane, Soviet
Attitude Toward International Space Law, 56 AM. J. INT’L L. 685, 702-06 (1962).
22 While they do not assert there has yet arisen a legal duty to restrict the use
of space to “peaceful purposes”, writers generally argue that overriding principles,
such as the “benefit of mankind”, or the interest in maintaining international
peace, security, and cooperation, requires that such a restriction be accepted, and
then apply legal analysis to the term “peaceful”. E.g., JENKS, SPACE LAw 304
(1965); LiPSON AND KATZENBACH, op. cit. supra note 8, at 24-27; ScHICK, F. B.,
WHO RuLEs THE SKIEs 20 (1961); Woetzel, infra note 41 at 125-26, and authori-
ties cited n. 9; Platig, The Future, Comments and Queries, in TAUBENFELD, SPACE
AND SOcIETY 169 (1964): “For the time being, however, the superpowers have
agreed that space should be used for peaceful purposes…”
No. 31
RECONNAISSANCE SATELLITES
II. The Legal Characterization of Reconnaissance Satellites
A. Present Views on Legality
Although the Soviet position is vague and possibly changing,
Soviet writers and officials have generally asserted that satellite
reconnaissance is illegal under international law by two theses. (1)
The assertion has been made almost without exception by Soviet
spokesmen until 1963 that satellite reconnaissance
is military in
nature and therefore “non-peaceful”
in violation of international
law; 23 (2) all gathering of strategic information from within foreign
territory is espionage, therefore illegal, regardless of the location
of the observer. 24
is claimed
The position of the United States authorities and writers, with
some possible dissenters, 25 is that reconnaissance satellites do not
violate international law. It
that reconnaissance
satellites are legal because they are necessary to proper self-defense,26
an argument based in part on the fact that the Soviet Union has
a decided intelligence advantage inherent in the closed nature of
its society, and the United States, as an open society, has a right
to overcome that advantage; 27
(2) that activities in space which
are not aggressive are “peaceful,”
therefore the non-aggressive
reconnaissance satellites are “peaceful,” 28
(3) and that because
(1)
satellites.
23 Korovin, Outer Space Must Become a Zone of Real Peace, International
Affairs (Moscow), No. 9, 1963, p. 92. Korovin berates the view of “semi-official
United States documents” that “peaceful”
includes military measures, viz.,
reconnaissance
International Affairs
(Moscow), No. 2, 1963, p. 92, 93; Zhukov, Practical Problems of Space Law, Inter-
national Affairs (Moscow) No 5, 1963, p. 28; Woetzel, Comments on U.S. and
Soviet Viewpoints Regarding the Legal Aspects of Military Uses of Space, 1963
PROCEEDINGS, AmER. Soc. INT’L LAW 195, 197, quoting Morozov, Soviet, Soviet
delegate to the First Committee of the United Nations. See Crane, Soviet Attitude
Toward International Space Law, 56 AM. J. INT’L. L. ‘702 (1962).
Ibid. Accord, Gabrovski,
The Soviet position has been that while reconnaissance is not “an act of true
aggression and war”, it is non-peaceful and constitutes espionage. Beresford,
supra note 6, at 116, quoting N. S. Khrushchev. But see LipsoN AND KATZENBACH,
op. cit. supra note 8 at 32.
24 Notes 55-58, infra, and accompanying text.
2 5 M CDOUGAL, LASSWELL, AND VLAsIC, LAW AND PuBLic ORDER IN SPACE
312-315 (1963), and authorities there cited.
2 6 E.g., Taubenfeld, The Status of Competing Claims to Use Outer Space: An
American Point of View, 1963 PROCEEDINGs, AmER. SOC. INT’L LAW 173; LipsoN
AND KATZENBACH, op. cit. supra note 8 at 32.
27 Taubenfeld, supra note 26 at 179.
28 Feldman, George J., The Report of the United Nations Legal Committee on
the Peaceful Uses of Outer Space (address at the 10th annual congress of the
McGILL LAW JOURNAL
[Vol. 13
reconnaissance satellites are located outside the generally accepted
boundaries of national sovereignty, they are not illegal. 29
Nations other than the United States and Russia have seldom
expressed strong views on the legality of reconnaissance satellites,
perhaps because they are little concerned. Those opinions which
have been expressed predictably coincide with prior stands in the
tripolar world; Western spokesmen have unexcitedly supported the
United States positions, Communist nations express support of
the Soviet Union, 3’ and neutral nations take no position.32
Until 1963, the Soviet Union advocated recognition of a principle
that every [non-Soviet] military space activity was non-peaceful
and therefore illegal.33 As late as May, 1963, the Soviet jurist G.
Zhukov stated that “the concept of the ‘peaceful use’ of outer space
International Astronautical Federation, London, England, September 4, 1959),
as quoted in Beresford, supra note 6:
The word “peaceful” as used in the [National Aeronautics and Space] Act
means “non-aggressive” rather than “nonmilitary”. … If “peaceful” means
nonmilitary, and outer space can be used for “peaceful” purposes only, what
happens to the inherent right of self-defense guaranteed by Article 51 of
the United Nations Charter and by general international law? Id. at 111.
Also 1960 Report of the Committee on the Law of Outer Space, reprinted in
RECHTSCHAFFEN, REFLECTIONS ON SPACE, ITS IMPLICATIONS FOR DOIMESTIC AND
INTERNATIONAL AFFAIRS 293, 315 (1964).
Accord, United States delegate Gore, before the First Committee of the United
Nations General Assembly, 3 December 1962, quoted by Woetzel, 1963 PRo-
CEEDINGS, AMER. SOC. INT’L LAW 193, 199.
29 E.g., Taubenfeld, supra note 26 at 179-180; note 50 infra.
30 In the United Nations Committee on the Peaceful Uses of Outer Space: Mr.
Tremblay of Canada, citing maritime law as basis for legality of reconnaissance
satellites; U. N. Doc. No. A/AC, 105/C.2/SR.21/7
(1963); Statement of Miss
Guttridge of the United Kingdom; U. N. Doe. No. A/AC. 105/C.2/SR.24/12 (1963).
See Statement of Mr. Litvine of Belgium, U.N. Doe. No. A.AC. 105/C.2/SR.19/4
(1963); UNITED NATIONS YEARBOOK, 1962 42 (1964) (Australia, United Kingdom,
and United State oppose U.S.S.R. draft provisions condemning gathering of
intelligence from space).
31 In the United Nations Committee on the Peaceful Uses of Outer Space: Mr.
Wzner of Poland, advocating inclusion in U.N. resolution of provision forbidding
gathering of intelligence by use of satellite. U.N. Doe. No. A/AC. 105/C.2/SR.19/7
(1963); Mr. Gavrillov of Bulgaria, supporting Soviet statement of incompatibility
of use of reconnaissance “with the objectives of man in outer space”. U.N. Doe.
No. A/AC.105/C.2/SR.12/20 (1963); UNITED NATIONS YEARBOOK, 1962 42 (1964)
(Czechoslovakia, Romania support U.S.S.R. draft provision condemning gathering
of intelligence information from space).
32 See statement of Indian delegate, Krisha Rao, to U.N. Space Committee,
U.N. Doe. No. A/AC.105/C.2/SR.29-37/40
(1964).
33 Authorities cited note 23, supra. See Crane and Woetzel, supra note 23,
Christensen, Soviet Views on Space Law, May, 1961 (typewritten manuscript in
Yale Law Library).
N0. 31
RECONNAISSANCE SATELLITES
excludes any measures of a military nature.” 34 In 1962 and 1963,
the Soviet Union equivocated in its position that all military use of
space was illegal, and Robert Crane, an authority on Soviet strategy,
has asserted that the Soviet policy had changed to legalize military
uses.35 This equivocation on the military use issue, however, did not
alter the Soviet position against the legality of reconnaissance
satellites. 6 Thus, it is Crane’s view of the present Soviet position
3uZhukov, G., Practical Problems of Space Law, International Affairs
(Moscow), No. 5., 1963, p. 27, 28.
35 On April 22, 1963, the Czechoslovakian delegate to the U.N. Committee on
Peaceful Uses of Outer Space opposed the inclusion in a draft of legal principles
of a “provision prohibiting the use of space for war purposes”, saying: “Practical
implementation of… [Article 2 (4) of the Charter and operative paragraph 1(a)
of General Assembly Resolution 1721 (XVI)] could be insured only by negotiation
and conclusion of an agreement on general and complete disarmament”. Summary
Record of the Twentieth Meeting, U. N. Committee on the Peaceful Uses of Outer
Space, Legal Subcommittee, April 22, 1963, U. N. Doc. No. A/AC.105/C.2/SR.20/9
(1963). On May 13, 1963, the Soviet representative to the same legal subcommittee
equivocated as follows:
The Soviet Union had always maintained that outer space should be used
solely for peaceful purposes. On March 15, 1958, shortly after the launching
of the first artificial satellite, the Soviet Union had submitted a proposal
for the banning of the use of cosmic space for military purpose and for the
elimination of foreign military bases on the territories of other countries. The
Soviet Union draft treaty on general and complete disarmament (ENDC/2)
specified that the peaceful use of outer space should be one of the objectives
of the first stage of disarmament. The Soviet Union adopted a realistic
approach to the question and considered that the problem of the prohibition
of the military use of outer space could be solved only in the context of
disarmament.
Summary Record of the Twenty-English Meeting, U.N. Committee on the Peaceful
Uses of Outer Space, Legal Subcommittee, May 3, 1963, U. N. Doc. No. A/AC.
105/C.2/SR.28 at 14 (1963). Thus in the first sentence the Soviets establish a
foundation for assertion of their support of the continuing requirement that space
be used only for peaceful (and thus non-military) purposes, while the rest of
the statement seems to assert that the Soviet Union cannot be bound to non-
military uses of space until there is signed a convention of general and complete
disarmament. Robert Crane, in Basic Principles of Soviet Space Law: Peaceful
Coexistence, Peaceful Cooperation, and Disarmament, 29 LAw AND CONTEMP.
PROB. 943 (1964) quotes these statements as support for the assertion that “this
policy [of the Soviets that space was legally only for peaceful, i.e., non-military,
uses] changed in 1962 to legalize military uses, and now has gone so far that
the Soviets are beginning to designate even the attempt to inspect one of their
military space satellites as an act of preventive war”. Id., at 952.
38 In the same summary record in which the Soviet representative tied the
legal prohibition of military use of space to the removal of foreign military bases
and agreement on general and complete disarmament, the delegate stated: “all
attempts to reconcile the collection of intelligence information by artificial satel-
McGILL LAW JOURNAL
[Vol. 13
that the military use of space is legal, but that reconnaissance
activities remain illegal.31 It would seem, however, that the Soviet
policy is not one of legalizing the military uses of space, but is simply
one of abandonment of previous efforts to have these uses declared
illegal. The present view of the Soviets seems to be that the military
use of space is alegal, i.e., without legal characterization, and will
remain so until agreement
is reached on general and complete
disarmament, with which the issue is inseparably linked. 8 It would
be speculative at best to indicate whether the purpose for this
manoeuver was to avoid growing criticism in view of the history
of Soviet military uses of space (e.g., the testing of ICBMs) and
“rocket diplomacy,” or to open to the Soviet Union future military
uses of space, supportable by the argument that they were forced
to such devices by the refusal of the United States to accept its
proposed ban on military uses. In this regard, it must be noted
that Soviet writers continue to attack United States space endeavors
as military and thus against the interest of mankind, in opposition
to the solely “peaceful” activities of the Soviet Union, without,
however, declaring military uses of space to be illegal.39
It is the position of the United States and other Western powers
that the term “peaceful,” as applied to space activities, is used in
opposition
to “aggressive,” not to “military.” 40 United States
spokesmen point to the fact that the application of the United
lites with the principles of international law were completely unfounded. Espio-
nage in any environment was inadmissible and it was prohibited by every system
of national law.” Summary Record of the Twenty-Eight Meeting, U.N. Committee
on the Peaceful Uses of Outer Space, Legal Subcommittee, May 3, 1963. U.N.
Doc. No. A/AC.105/C.2/SR.28 at 13 (1963).
37 Crane, supra note 35, citing Zhukov, G., The Legal Regime of Outer Space
in the Contemporary Period, Kosmos I Mezhdunarodnoye Satrudnichestvo (1963)
(in Russian).
38 Even in the article condemning the military use of space as illegal, Korovin,
supra note 23, later states: “I leave aside such problems as the demilitarization
of space, which apparently cannot be solved until there is disarmament on earth.”
Id., at 93. See also Comment, The Cosmos Must Be a Peace Zone, International
Affairs (Moscow), No. 12, 1963, p. 41.
39 E.g., Sibiryakov, U.S. Military Space Drive in Latin America, International
Affairs (Moscow), No. 7, 1966, p. 54; Mader, U.S. Militarist Plans in Space,
International Affairs (Moscow), No. 8, 1965; Larionov, The Doctrine of Military
Domination in Outer Space, International Affairs (Moscow), No. 10, 1964, p. 25;
Comment, The Cosmos Must Be A Peace Zone, supra note 38.
40 E.g., Woetzel, infra note 41 at 126, quoting Senator Gore in the U.N. First
Committee; LIPSON AND KATZENBACH, op. cit. supra note 8 at 32; Beresford,
Surveillance Aircraft and Satellites, 27 J. Am L. & CoM. 107, 109 (1960), and
authorities there cited; Litvine, Belgian delegate to the Legal Subcommittee of
the U.N. Space Committee, U.N. Doc. No. A/AC. 105/C.2/SR. 19 at 4 (1963).
No. 3]
RECONNAISSANCE SATELLITES
Nations Charter forbids an actual “threat or use of force,” and
does not purport to ban traditional non-aggressive defensive military
activities. 41 In a less legalistic defense of its position, the United
States asserts that the effect of reconnaissance from space
is
stabilization, in that knowledge of the activities, the force levels,
and the military preparations of the opposite camp are brought to
light,42 dispellng suspoicons and redlucing the need arising from
lack of knowledge to extend the arns race by developing weapons
systems to meet factually unfounded contingencies. 43
Perhaps because of the inability to reach agreement on the
conformance of military uses to the “peaceful” standard, the recent
Space Treaty evades the question for the most part.44 The Treaty
arguably equates “peaceful” with “non-military,” when in Article 4
it provides that the moon and celestial bodies may be used only
for “peaceful purposes” and then expressly proscribes the use of
these bodies for military purposes. It may also be argued, however,
that the drafters felt it necessary to advert to military activities
because
these activities are not included within the “peaceful
purposes” restriction.
The positions of both the Soviet Union and the United States on
the conformance of reconnaissance with “peaceful uses” are tenable,
because the term “peaceful” has been used in varying contexts in
international relations, sometimes referring to “non-military” and
sometimes to “non-aggressive.” 45 It would seem that the United
States position that military uses, if non-aggressive, are peaceful,
is the stronger position. Two United States writers, however, urge
an expansion of the scope of the term “non-peaceful” to include
military uses, because of the “destabilizing” effect of such uses on
world order.46 While it is perhaps a strained definition of “peaceful”
which includes all non-aggressive military uses the proposals to ban
all military uses as “non-peaceful” seem equally strained to the
opposite extreme. Neither of these writers admits of the differenti-
41 Woetzel, Legal Aspects of Military Uses of Space in Soviet and American
Eyes, in TAUBENPELD, SPACE AND SOCIETY 121, 126
(1964); Taubenfeld, The
Status of Competing Claims to Use Outer Space, An American Point of View,
in TAUBENFELD, AND SociETY 151, 152 (1964).
4 2 LipsoN AND KATzENBACH, op. cit. supra note 8, at 32.
4 3 Brennan, Arms and Arms Control in Outer Space, in BLOOMFIELD, OUTER
SPACE. PROSPECTS FOR MAN AND SOCIETY 134 (1962).
44 Note 20, supra.
45 LIPsoN AND KATZENBACH, op. cit supra note 8, at 25-26.
4 6 Falk, Toward a Responsible Procedure for the National Assertion of Pro-
tested Claims to Space, in TAUBENFELD, SPACE AND SOCIETY 91, 117-120 (1964);
Woetzel, supra note 41 at 126-127, 129, 130.
McGILL LAW JOURNAL
[Vol. 13
ation proposed by Professor Howard J. Taubenfeld between
reconnaissance which is unmistakeably peacekeeping in nature, and
those of more direct military use.47 The first class includes the
Midas system, the function of which is to detect the launching of
hostile ICBMs. It can hardly be charged that such a function is
destabilizing or that United States has no right to gather this
indisputably defensive information. The observed state cannot claim
that this function enhances the first-strike capability of the observer.
The charges that satellite reconnaissance
is destabilizing gather
more credence when that reconnaissance is the traditional photo-
graphic type, which is used for gathering targetting as well as
other information. Former Soviet Premier Nikita Khrushchev has
stated:
… information about the location of such bases can be of importance not
for a country concerned with its defense requirements, but solely for a
state which contemplates aggression, and intends to strike the first blow
and therefore wants to destroy the missile base so as to avoid retribution
after attack.48
This argument, however, assumes that an aggressor will use all its
missiles to assure an effective first strike, and that therefore
retaliation by the victim will be restricted to counter-city actions
(which do not require such precise targetting). Neither of these
assumptions is correct: the aggressor will no doubt retain a significant
number of weapons in order to exert further pressure upon survivors
to accede to its demands, and the victim, with his forces seriously
truncated by the counter-force first strike, would need extremely
accurate targetting information to destroy the aggressor’s reserved
missiles.49
49
47 Taubenfeld, supra note 41, at 150-52.
4 8 Zhukov, G., Space Espionage Plans and International Law, International
Affairs (Moscow), No. 10, 1960, p. 53, reprinted in S. Doc. No. 26, p. 1095, 1098,
quoting N. S. Khrushchev.
It is true, of course, that in pre-attack planning, the most effeotive plan for
an unchangeable defense is assignment of the main components of the retaliatory
force to the enemy’s major cities, if the enemy is informed of these tactics.
IissILE AGE 291-92 (1959). However, from the pro-
BRODm, STRATEGY IN THE
spective view of post-attack planning, this commitment will prove undesireable
to the victim. First, the attacker will hold some missiles in reserve, and these will
be the prime target for the victim’s remaining forces; the victim must know
exactly where these reserve missiles are located. BRODIE, op. cit. supra at 290.
Second, the aggressor may well avoid attacking, in his “first-strike”, the cities
of the victim. (It is at least certain that his prime objective will be a counter-
force first strike.)
It would then be foolish for the victim to initiate city
destruction, thus assuring destruction his own cities, and in greater degree.
BRODIE, op. cit. supra at 292; KAHN, ON THERMONUCLEAR WAR 166, 168, 177
(1960).
No. 3]
RECONNAISSANCE SATELLITES
Furthermore, reconnaissance satellites are as capable of gathering
information on the number of nuclear weapons, which the observing
nation requires in order to avoid the necessity of building weapons
capability far beyond that necessary for defense, as they are of
gathering information on the location of those weapons. And the
added capability of reconnaissance satellites in informing the observer
of build-ups in conventional weapons, information which is of use
to characterize
primarily for defensive purposes, would seem
reconnaissance from space more as stabilizing than as destabilizing.
Use by both the United States and the Soviet Union of reconnaissance
satellites of equal capability would assure more equal targetting
levels and intentions of
information and information on force
opponents; this is a more stable situation than would exist without
their use, because of the intelligence advantage which the Soviet
Union enjoys.
its arguments
Notwithstanding
that reconnaissance satellite
activities are legal because they are “peaceful,” the main thrust
of the Western position is that they are legal because they take place
outside the limits of the territorial sovereignty of the underlying
state. Invariably, in support of this position it is by analogy claimed
by United States and Western officials that reconnaissance activities
from outer space are as legal as observation from the high seas,
and from airspace above countries friendly to the observing state.50
The analogy to “freedom of the seas” is generally stated broadly,
allowing of no qualifications, when actually, as the Soviets have
correctly pointed out,5′ the maritime legal regime has not been one
50 Remarks of Senator Albert Gore, U.S. Representative to the First Committee
of the U.N., 3 December, 1962: “Observation from space is consistent with inter-
national law, just as is observation from the high seas”, quoted in Cooper, Current
Developments in Space Law, IV SPACEFLIGHT 134, 136 (July, 1963). Accord,
Taubenfeld, supra note 41 at 152; Gardner, Outer Space: Problems of Law and
Power, in RECHTScHAFFEN, REFLECTIONS ON SPACE, ITS IMPLICATIONS FOR Do-
MESTIC AND INTERNATIONAL AFFAIRS 281, 284; Beresford, supra note 6, at 114;
Canadian United Nations representative Tremblay, U.N. Doc. No. A/AC.105/C.
2/SR.21/7 (1963). See also the views of the British delegate. A/AC.105/C.2/SR.
24/12 (1963).
51 Soviet United Nations delegate Federenko, before the Legal Subcommittee
of the Space Committee on April 24, 1963:
All governments with maritime interests established –
either temporarily
or permanently – warning, danger, restricted or prohibited areas for nu-
merous purposes. Moreover, aid defense identification zones had been estab-
lished along the coasts of North America. The norms of international law
provided sufficient bases for the banning of espionage activities in outer
space. The altitude from which intelligence observation might be made was
immaterial.
U.N. Doc. No. A/AC.105/C.2/SR.22/5 (1963).
McGILL LAW JOURNAL
[Vol. 13
of complete freedom.52 And when a system of law is established in
space, it also will probably be one of qualified freedom. However,
though freedom on the high seas is not complete, it would seem that
observation of coastal states is not one of the activities proscribed,
in view of the fact that the practice is common among states, including
the Soviet Union.53
The Western analogy to the high seas assumes tvo propositions:
(1) observation from these areas is legal, and (2) observation from
artificial earth satellites is so similar to these more earthbound
activities that analogy is proper. The Soviets deny the validity of
both these propositions.
The Soviets first argue that, even were observation from the
high seas or from the territory of a nation friendly to the observer
“legal,” observation from a satellite is so intrinsically different that
analogy between the two is improper. 54 But the essence of the Soviet
position, at least until 1963, has been that reconnaissance from outer
space and even from the high seas is espionage, and that:
We cannot agree with the claim that all observation from space, including
observation for the purpose of collecting intelligence data, is in conformity
is just as wrong as when
with international law… Such observation
intelligence data are obtained by other means, such as by photographs
made from the air. The object to which illegal surveillance
is directed
constitutes a secret guarded by a sovereign state, and regardless of the
means by which such an operation is carried out, it is in all cases an
intrusion into something guarded by a sovereign state in conformity with
If it were merely a case of observing what
its sovereign prerogative…
happens on the high seas, one could accept this analogy; but when it is
52 E.g., Lipson, Outer Space and International Law, Rand Corporation, Paper
P-1434 (1958), p. 10, quoted in Falk, supra note 46 at 110, 111:
In maritime law and practice there is not merely a zone of territorial waters,
a single contiguous zone, and the free high seas; there is a whole cluster
of zones, overlapping and intersecting, established at different times for
different purposes by different states (unilaterally, bilaterally, and multi-
laterally) with different degrees of formality, enforced by different methods,
and accepted in different degrees by varying numbers of others states…
53 Note, Reconnaissance in Airspace and Outer Space, 61 COLUm. L. REV. 1074,
1082 n. 48 (1961).
5 4 M r. Morozov, replying for the Soviet Union to the space-sea analogy of U.S.
representative Gore in 1963 (quoted note 50, supra): “no analogy exists here
with principles applying to the open sea,” indicating that this use of space had
more dangerous consequences than similar use on the high seas. Quoted by
Woetzel, supra note 23 at 197. Gabrovski, Todor, International Affairs (Moscow),
No. 2, 1963, p. 92; Korowin, quoted in STAFF OP SENATE COMMITTEE ON AnnO-
NAUTICAL AND SPACE SCIENCES, 87TH CONG., 2ND SESS., REPORT ON SOVIET SPACE
PRaGRAMS 199-200 (Comm. Print 1962); Osnitskaya, International Problem of
the Conquest of Space, 1959 SOVIET YEARBOOK OP INTERNATIONAL LAw 65 (1960),
summarized in S. Doc. No. 26, p. 1088, 1092.
No. 3]
RECONNAISSANCE SATELLITES
a case of observation on the high seas for purposes of collecting intelligence
information, then we are dealing with an intrusion into the sovereign rights
of states … 5
There are a number of points to this position, each of which bear
examination. Consistently injected into Soviet statements is the
“espionage” charge. Even if these activities actually constituted
espionage, the question whether espionage is itself a violation of
international law is yet to be answered. United States writers point
out that, while the Soviet charge is true that espionage violates virtu-
ally every national law, it does not violate international law, in the
sense that no claims to international redress have been made by spied-
upon nations. 56 Perhaps more importantly, reconnaissance from space
does not fit the traditional mold of espionage, requiring that the ac-
tivity be clandestine, 57 and involving intrusion into a nation’s terri-
tory,58 which even the Soviets do not extend to satellite altitudes. This
is, then, a new and distinctly Soviet conception of (non-Soviet)
espionage and conforms to the Soviet view of international law.
The crux of the Soviet position is not in the nature or the location
of the information gathering activity, but rather it
lies in the
nature and location of the events being observed. That is, it is a
“violation of the sovereignty of States” to direct surveillance by
any means from any location to a “secret guarded by a sovereign.”
Thus, to any information which it desires kept secret the Soviet
Union imparts a “sovereignty” which depends not upon territorial
55 Soviet statement in the United Nations First Committee, quoted in Cooper,
Current Developments in Space Law, IV SPACEFLIGHT 134, 136 (July, 1963).
Accord, Zhukov, The Outer Space Law Qualifications, 1963 PROCEEDINGS, AMIER.
SOC. INT’L LAW 193, 195: “There is not and cannot be any ‘right to spy’ in outer
space or elsewhere”; Timerbaev, U.S.S.R. representative to the Legal Subcom-
mittee of the U.N. Space Committee:
All attempts to reconcile the collection of 4ntelligence information by artificial
satellites with the principles of international law were completely unfounded.
Espionage in any environment was inadmissible and it was prohibited by
every system of national law.
Summary Record of the Twentieth Meeting, May 3, 1963, U.N. Doc. No. A/AC.
105/C.2/SR.28/13 (1963).
56 Note, Reconnaissance in Airspace and Outer Space, 61 COLUM. L. REV. 1074
(Lauterpacht ed. 1937);
(1961); 1 OPPENILEIM,
Beresford, supra note 40 at 113-14. Contra, Christensen, supra note 33 at 20.
INTERNATIONAL LAW 455
57 Beresford, supra note 40 at 113; 1 OPPENHEIM, INTERNATIONAL LAW 455
(Lauterpacht ed. 1937); Note, 61 COLUM. L. REv. 1074 n. 1 (1961).
58 E.g., see the Hague Convention, of which both the United States and Russia
are signatories, which by article 20 considers as spies in time of war only those
who clandestinely gather information “in the zone of operations of the belligerent”.
Hague Convention respecting the Laws and Customs of War on Land (1907),
36 Stat. 2277, 2303. (Emphasis added).
McGILL LAW JOURNAL
[Vol. 13
it
delimitation, but upon whether
“intelligence” and desires it kept secret. This view is in direct
conformity with the Soviet concepts of “national” sovereignty, and
the “danger” theory, as described by Ronald Christensen:
the Soviet Union deems
Danger is used to show when its [the Soviet Union’s] national sovereignty
has been violated, which could happen, under the socialist international law
(or policy towards), without an entry into her national territory. Thus
Russia regards her sovereignty rights as going beyond her territorial borders,
ceasing, it seems, not even at the borders of another state, and, perhaps
pervading the entire universe. No one anywhere, she says, has the right
to endanger the Soviet Union. 59
While this Soviet doctrine is novel in international law, it would
seem to be novel only in degree, not in its nature. That is, international
proscription of various activities has not been wholly by territorial
boundaries, but has sometimes been based upon the undesireable
function of these activities, even though they take place outside
the territory of the complaining state, as is evidenced by the
occasional approval by both national,0 and international,”‘ tribunals
of the impact territoriality principle. The novelty of the doctrine
lies in the extent to which it proscribes –
all information which
it is desired to keep secret, regardless of the means or location of
the information gatherer –
and the extent to which it allows the
Soviet Union to unilaterally determine its final definition.
It would seem that Christensen’s “danger” theory is similar to
Soviet statements extending sovereignty to whatever altitude is
necessary to protect Soviet security.0 2 Crane asserts that the Soviets
were forced to “reassess” this “security” doctrine because it would
allow other states to interfere with Soviet space activities, and
even legalize reconnaissance satellites, in the interest of their own
security. 3 The “danger” theory, in its broad statement, is susceptible
in Yale Law Library), p. 30-31.
59 Christensen, Soviet Views on Space Law, May, 1961 (typewritten manuscript
60 E.g., United State v. Aluminum Company of America, 148 F. 2d 416 (1945),
and authorities cited pp. 443-44.
61 The Lotus Case, P.C.I.J., Series A, No. 10 (1927).
62 E.g., Zhukov, Space Espionage Plans and International Law, International
Affairs (Moscow), No. 10, 1960, p. 53; Osnitskaya, International Problems of the
Conquest of Space, 1959 SoviMt YFARBOOK OF INTERNATIONAL LAW 65 (1960),
summarized in S. Doc. No. 26, p. 1088, 1091; Crane, Soviet Attitude Toward
International Space Law, 56 Am. J. INT’L L. 685, 691, 692 (1962).
63 Crane, supra note 62, at 692. Crane cites no example of this “reassessment”,
but his assertion would seem to be born out in Larionov, The Doctrine of Military
Domination in Outer Space, International Affairs (Moscow), No. 10, 1964, p. 10.
While the “security” doctrine has possibly been “reassessed” by the Soviets, it
(Moscow),
has not been abandoned. See, e.g., Gabrovski, International Affairs
No. 2, 1963, p. 92.
No. 3]
RECONNAISSANCE SATELLITES
to the same objections. However, the secrecy/sovereignty doctrine,
seemingly a spin-off from the security and danger theories, is not
open to these weaknesses. It is peculiarly appropriate to the closed
nature of Soviet society, and is so undesireable to Western society
that the Soviets need not worry that it will be utilized against them.
For the same reason, of course, the doctrine is not likely to be
accepted in international law.
In the spring, 1963, session of the United Nations subcommittee
during which the Soviets first equivocated in their views on the
general issue of military uses of outer space, dropping their demands
that such uses be declared illegal, their position on the illegality of
reconnaissance satellites remained adamant.64 Similarly, as late as
September, 1963, the eminent Soviet jurist E. Korovin reasserted
the doctrine that “espionage” from space was illegal.65 As of that
point of time, Soviet statements that reconnaissance satellites are
illegal have apparently terminated. 6 With the close of the spring,
1963, session of the Legal Subcommittee of the United Nations
Committee on the Peaceful Uses of Outer Space, Soviet statements
in that subcommittee on the
illegality of space reconnaissance
ceased. 67 There were no Soviet references to this topic in the meetings
of the Committee itself in its September and November 1963 delibera-
tions68 The December, 1963, Resolution 1962 (XVIII), approved
by the Soviet Union, bears no mention of reconnaissance satellites.
The 1964 U.S.S.R. draft proposals on Assistance to and Return of
Astronauts and Spacecraft did not expressly except reconnaissance
64 Timerbaev, U.S.S.R. representative to the legal subcommittee of the U.N.
Space Committee, quoted supra note 55; Federenko, quoted supra note 51.
65 Korovin, E., Outer Space Must Become a Zone of Real Peace, International
Affairs (Moscow), No. 9, 1963, p. 104, 105.
66 See, e.g., Reconnaissance Satellites, Interavia, January, 1965, p. 104, 105.
67 In the 1964 meetings of the Legal Subcommittee, much time -was spent
attempting to clarify the legal principles laid down in Resolution 1962 (XVIII),
adopted in December, 1963. No mention was made during these meetings, held
from March 9 to March 26, 1964, of reconnaissance satellites, except that the
Indian delegate Rao noted that “the U.S.S.R. draft made no mention of the
return of vehicles carrying devices for the collection of intelligence information,
which was understandable”. U.N. Doc. No. A/AC.105/SR.29-37 at 40 (1964).
68 Cooper, John C., Aerospace Law: Progress in the U.N., Astronautics and
Aeronautics, March, 1964, p. 42, 44. See U.N. Doc. No. 5801.
69 1964 U.S.S.R. Proposal on Assistance to and Return of Astronauts and
Spacecraft, U.N. Doe. No. A/AC.105/C.2/L.2/Rev.2 (1964); comparative table
of proposals as of 6 October, 1964, U.N. Doc. No. A/AC.105/C.2/W.1/Rev.1
(1964).
McGILL LAW JOURNAL
[Vol. 13
spacecraft from those to be returned to the launching state,69 as the
1962 70 and 1963 71 Soviet draft proposals had done.
This is not to say that the Soviet Union now supports the legality
of reconnaissance satellites. Included in Resolution 1962 (XVIII)
and in the 1967 Space Treaty is the provision that space activities
must be carried out “according to International law,” leaving the
status of reconnaissance as it was prior to the adoption of the
resolution, and leaving to the Soviet Union the prerogative of
reassertion of its prior statements.7 2 Similarly, the 1964 U.S.S.R.
draft proposals on the return of fallen spacecraft, while not expressly
mentioning reconnaissance craft, place conditions on the duty to
return the craft, which would, by previous Soviet statements, exclude
reconnaissance craft.73 Numerous Soviet writings since September,
1963, vehemently attack reconnaissance satellites as against the
interests of mankind in the exploration of space and as “espionage,”
though no longer by the use of that term classifying them as illegal
under international law.7 4 Thus, while the Soviet Union has abated
its statements that reconnaissance satelites are iflegal, it has again
left itself the opportunity to take up the cry. The reasons for this
manoeuver -are unknown. Possibly the Soviet Union has come to
feel that reconnaissance from space is valuable enough to itself to
give up its objections.7 5 Just as possibly, this move, in conjunction
with its apparent withdrawal on the issue of military use of outer
space, is to construct a legal doctrine supporting future Soviet
military uses of space.
7 0 YEARBOOK OF THE UNITED NATIONS, 1962 35-47 (1964).
711963 U.S.S.R. Draft Declaration of the Basic Principles Governing the
Activities of States in the Exploration and Use of Outer Space, Annex IA, article,
9, U.N. Doc. No. A/AC.105/12 (1963).
72 Cooper, supra note 68, at 44.
73 Article 6(2) of the 1964 U.S.S.R. proposal creates a duty to return only
fallen spacecraft “launched in accordance with the Declaration of Legal Princi-
ples Governing the Activities of States in Exploration and Use of Outer Space
(1964).
[Resolution 1962 (XVIII)]”. U.N. Doe. No. A/AC.105/C.2/L.2/Rev.2
Resolution 1962 could be interpreted to ban reconnaissance satellites. See note 72,
supra.
74 Mader, U.S. Militarist Plans in Space, International Affairs (Moscow), No.
8, 1965, p. 55; Larionov, The Doctrine of Military Domination In Outer Space,
International Affairs (Moscow), No. 10, 1964, p. 25.
75 See Reconnaissance Satellites, Interavia, January, 1965, pp. 104, 105.
No. 3]
RECONNAISSANCE SATELLITES
B. Present Development and Uses of Reconnaissance Satellites
To estimate the probability that the users of reconnaissance
satellites would allow them to be characterized as illegal, and to
predict their reaction to such characterization, the abilities and
disabilities of the Soviet and United States satellites at present
and in the near future must be examined. Such an examination is
also necessary to estimate the hesitancy with which these nations
would agree to turn these instruments over to an international
peacekeeping institution, and the value of such satellites in inspection
of an arms control or peacekeeping arrangement.
In spite of stringent restrictions on information, 6
it is known
that present United States reconnaissance satellites carry out a
number of functions. The Samos system is engaged in traditional
photographic reconnaissance similar to the U-2, gathering targetting
and force level information in addition to serving as a warning of
foreign military preparations.7 The Midas (Missile Defense Alarm
System) project carries in high polar orbits infrared sensing devices
which detect the heat generated during the hot-boost phase of
missile firings.71 The United States has also developed a satellite
system for the detection of nuclear testing at high altitudes and in
space. 9 The Air Force Discoverer program, while officially an
engineering and scientific study project, is also being used for
terrestial reconnaissance. 0
While the Soviet Union rarely mentions the specific military
purposes of its space program,8’ it is known to be engaged in
reconnaissance from space . 2 The first Sputnik contained infra-red
761n 1962, the Department of Defense banned the use of traditional public
names for reconnaissance satellites, and sharply curtailed the release of relevant
information. VAN DYKE, PRInE AND PowER: RATIONALE OF THE SPACE PROGRAM
37 (1964) ; U.S. News and World Report, January 13, 1964, p. 76. For this reason
it necessary to infer from certain information often not directly in point, and
just as often not up to date.
77E.g., U.S. News and World Report, January 13, 1964, p. 76; VAN DYKE,
op. cit. supra note 76, at 37.
78 Brown, DoD Space Programs, Astronautics and Aeronautics, vol. II, June,
1964, p. 68; VAN DYKE, supra note 76, at 39.
79 Brown, supra note 78; N.Y. Times, Oct. 29, 1966, p. 3, col. 4…..
80 SCHICK, WHO RuLES THE SKIES: SOME POLITICAL AND LEGAL PROBLEMS OP
THE SPACE AGE 24 (1961).
CONG., 2d SEss., REPORT ON SOVIET SPACE PROGRAMS 47 (Comm. Print 1962).
81 STAFF OF SENATE COMMITTEE ON AERONAUTICAL AND SPACE SCIENCES, 87th
82 VAN DYKE, op. cit. supra note 76, at 39; UPI Report, New Haven Register,
Sept. 26, 1965, Sec. 1, p. 5: “Shortly before his ouster, Soviet Premier Nikita
Khrushchev openly boasted that Soviet satellites were constantly photographing
military installations in the United States.”
McGILL LAW JOURNAL
[Vol. 13
devices to map the United States for targetting purposes. 0 The
Cosmos series, although
intended primarily for weather and
meteorological research, reportedly utilizes television cameras for
reconnaissance purposes.84 In 1962 the Soviets orbited three satellites
reportedly used for reconnaissance, eight in 1963 and thirteen in
1964.85 As of March, 1966, the Russians had completed at least 47,
such flights, apparently using an unmanned version of the Vostor
or Voshkod spacecraft.88
Thus, reconnaissance satellites have been and are being used by
both major space powers in gathering military information for
targetting and detection of missile firing and nuclear testing. It has
also been proposed to use these satellites to gather economic inform-
ation on industrial and commercial activities of the observed state,
in order that the observing state may more knowledgeably make
economic and political decisions.8 7
Because the subsystems found in the various types of reconnais-
sance systems described are virtually innumerable, simplification
requires restriction of the examination to the primary parameters
controlling reconnaissance capability: data interpretation, 88 sensors,
and ground coverage. The quality of photointerpretation is a function
of the training and ability of the interpreter, as well as the identifi-
cation features of the observed events and the resolution, contrast
and scale of the photographs.8 9 Although it was early urged that
development of photointerpretation was woefully inadequate, 0
the
83 Garthoff, Red War Sputniks in the Works, Missiles and Rockets, vol. 3,
May 1958, p. 134.
nautics, June, 1966, p. 4.
84 SENATE REPORT, supra note 81; Simmons, The Russian Space Race, 4 Astro-
85European Space Vehicle Launcher Development Organization Classification
of Soviet Space Vehicles, Technical Memorandum No. F-16 (March, 1965), NASA
Accession No. N65-24873. Accord, Reconnaissance Satellites, Interavia, January,
1965, pp. 104, 105.
86 Simmons, supra note 91.
87Yuan-Li Wu, Solving the Red Chinese Puzzle from Space, Air Force and
Space Digest, vol. 47, February, 1964, p. 59.
(1962)
8sThe quality of photointerpretation must be examined separately from that
of the raw sensor data. Danskin, A Theory of Reconnaissance II, X OPERATIONS
RESEARCH 285
(proving that the confusion caused by improper inter-
pretation is necessarily equal to or greater than that caused by photographic
inaccuracy).
8 9Jennings, Meeker, Prayer, Cook, Ground Resolution Study Final Report,
NASA Accession No. N64-12639, November 29, 1963 (study of photointerpreter
performance as a function of image quality).
90 Katz, Thoughts on Reconnaissance (address presented November 24, 1948),
Selected Readings in Aerial Reconnaissance (1963 ed.), Rand Corporation, Paper
P-2762, at p. 22.
No. 3]
RECONNAISSANCE SATELLITES
continuous studies of the techniques of this art 91 would seem to
bear out the later assertion made by the same writer that the human
restrictions on accurate photointerpretation are being continually
reduced.
2
The primary sensory method used in reconnaissance at the present
time is photography, utilizing the visible portion of the electro-
magnetic spectrum, because this is presently the most accurate
sensor available.93 Although many factors enter into a determination
of the interpretability of an aerial photograph, perhaps the most
important parameter is film resolution,9 4 which refers to the ability
of a film to render barely distinguishable a pattern of black and
white lines.93 “Ground resolution” is the ground (target) dimension
equivalent to one line at the limit of film resolution.9 6 Ground re-
solution is a function of the resolution R of the film, the focal length
F of the camera, and the vertical height h of the camera above
the target.
Ground resolutions (ft) = 300F (ft) x R (lines/mam)
h
.7
Thus to achieve fairly detailed ground resolution, it is desireable to
have high film resolution, a low satellite altitude, and a long focal
length.98
In 1959, Amrom Katz, a noted authority on reconnaissance and
photography, estimated that the ground resolution of a high quality
photography system would be of the order of five to one-hundred
91 E.g., see study cited note 88, supra.
92 Katz, Obseruation Satellites: Problems and Prospect (reprinted from Astro-
nautics, April, June, July, August, September, October 1960), p. 19.
93 Katz, supra note 92 at 5; Buchheim, INFLUENCE OF SPACE TECHNOLOGY ON
(July,
HutmnsPrERic DEFENSE, Rand Corporation, Memorandum RM-368-PR,
1963), at 17.
94 There is much justified criticism of dependence upon this single parameter
to describe photographic performance. Katz, supra note 92, at 5-6. Nevertheless,
ground resolution is a convenient measure for making gross comparisons and
evaluations. In the Ground Resolution Study Final Report, supra note 89, it
was reported that identification of most important objects was primarily
dependent upon ground resolution.
95 Katz, supra note 92, at 5. Thus, when the resolution of a film is 10 lines
per millimeter, the pattern whose line-plus-space width is 0.1 millimeter of film
is barely resolved or distinguished, finer patterns are not perceived, and coarser
patterns are’more clearly seen. Ibid.
96 Ibid.
97 Katz, supra note 92 at 6.
9s Brennan, Arns and Arms Control in Outer Space, in BLOOMFIELD, OUTER
SPACE, PROSPECTS FOR MAN AND SOCiETY 135 (1962).
McGILL LAW JOURNAL
[Vol. 13
feet from a height of 300 miles 09 In 1962, arms control expert
Donald Brennan estimated a resolution capability of eight feet in
the near future.10 These estimates seem to have been achieved by
United States satellites, at least when physical recovery of the film
is used, rather than telemetry.’0 ‘ Depending upon operating altitude,
film resolution, lens size, shutter speeds and other factors, obtainable
ground resolutions of from 60 feet down to 2 feet are estimated,
with corresponding focal lengths believed to range from 12-44 inches. 10 2
Based on the observed launching ratio of Thor- and Atlas-Agena
systems, utilizing scale numbers
(S = height above target/focal
length) of 800,000 to 200,000, provide the basic surveillance or mapp-
ing functions. 0 3 At these scale numbers, with film resolutions of
40 lines/mm, which are about normal, theoretical ground resolutions
are 67 and 17 feet, respectively. The larger Atlas- launched systems
are then programmed in lower orbits to pursue suspicious details
at scale numbers ranging downward
from 100,000,104 providing
theoretical ground resolutions of 8.3 feet and lower.’0 5 There is
99 Katz, supra note 92, at 5, 31.
100 Brennan, supra note 98, at 136. A ground resolution of two feet was predicted
in Lyon, Space Vehicles, Satellites, and the Law, (1961) 7 McGILL L. J. 271, 278,
but this has probably not yet been operationally achieved.
101 In addition to physical return of the film capsule, the United States originally
pursued ‘the use of television (telemetric) return of data to receiving stations on
earth. Telemetric return, however, too seriously degrades film resolution achieved
by the camera system. Katz, supra note 92, Reconnaissance Satellites, Interavia,
January, 1965, pp. 104, 106.
Because of the problems of mass readout, infra notes 111-113, and resolution
degradation during transmission,
the United States has largely abandoned
telemetric return of data, even though this would theoretically permit long-
lived reconnaissance missions and avoid the multiplicity of launches required
when physical recovery is employed, Katz, supra at 106. It is reasonable to
believe, however, that in the future the resolution obstacles of television return
and TV sensors will no longer be significant, in view of the constant development
in these areas. See 277 FRANKLIN INSTITUTE JOURNAL 97 (January, 1964).
102 Reconnaissance Satellites, Interavia, January, 1965, p. 105.
103 Ibid.
104 Brennan, supra note 98, at 135.
105 Using a focal length of 144 inches and with a film resolution of 100
lines/mm, a theoretical ground resolution of 2.2 feet would be attained. The
Gemini 11 manned flight, using the Maurer photography system, possessed a
film capability of almost twice that figure –
“resolutions figures in the order
200…” 1N.Y. Times, Sept. 18, 1966, p. 82, col. 6. However, this film resolution
is probably not yet available for widespread operational use because of cost,
N.Y. Times, supra, and because of design constraints for satellites; generally
grainy images with lower resolutions must be accepted in order to achieve fast
shutter speeds, easing problems of image compensation. Reconnaissance Satellites,
Interavia, January, 1965, p. 104, 105.
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RECONNAISSANCE SATELLITES
reason to believe that the Soviet Union has maintained this pace’ 0 6
While not in such predominant use, sensors other than photo-
graphy are available. Television “vidicon” sensors presently lack the
high resolution and information storage capabilities of photographic
sensors.10 7 The Midas system utilizes the infra-red portion of the
electromagnetic spectrum in attempting to detect the hot-boost phase
of hostile missile firings. 0 8 As of June, 1964, however, the Midas
project was viewed as very costly in light of the fact that other more
reliable systems for missile detection were available. 00 Because of
atmospheric attenuation
the restrictions on the portion of the
spectrum available for radar systems promise to be too great in the
near future to allow profitable use of radar.”” While no estimate
can be made of similar Soviet capabilities, it is urged that, in light
of the restricted capabilities of the infra-red and radar modes of
surveillance, these would add little support to the United States
bargaining position in negotiations concerning reconnaissance.
Besides operating outside the normally accepted boundaries of
territorial sovereignty of the underlying states, reconnaissance
satellites possess the capability of a degree of ground coverage several
orders of magnitude greater than previous methods of surveillance.
A satellite with a camera coverage angle of about 90 degrees at an
altitude of 150 miles could cover about six million square miles per
day.”‘ This greater coverage due to greater height is not pure
advantage, however; it also constitutes a great limitation on recon-
naissance satellites. As observed above, the altitude of the satellite
is perhaps the greatest barrier to achieving high resolution. Also,
degradation of the resolution of the photography system increases
seriously at the extremity of the observed swath.” 2 The vast amount
of information obtained by satellite sensors creates a serious problem
106 N. S. Khrushchev, quoted while showing the photographs obtained from
the captured U-2: “But it has also to be said that our cameras produce better,
sharper pictures, so that in this respect we gained little.” Quoted in Katz,
The Soviets and the U-2 Photos – An Heuristic Argument, The Rand Corporation,
Memorandum RM-3584-PR, March, 1963, p. 15. See also, Katz, supra at p. 17,
citing Soviet literature; SCHICK, supra note 80, at 24.
107 See discussion supra note 101.
108VAN DyKE, PRIDE AND PoWER, RATIONALE OF THE SPACE PROGRAM 39
(1964).
109 Ibid.
110 Kraus, Legal Aspects of Space Communications and Space Surveillance,
29 J. Am L. & Com. 230, 233 (1963).
111 KATZ, supra note 92, at 17.
112 Vargo, Pasquali, and Gersten, Observation Satellite Orbits, American Rocket
Society Journal, vol. XXXII, 1962, p. 105.
480
McGILL LAW JOURNAL
[Vol. 13
in returning that information to earth. At present full utilization
of the coverage capabilities of a single satellite using swift telemetric
return is not feasible, and the slower physical return of the film
capsule is necessary. 1 3
The advent of manned space reconnaissance is perhaps the most
significant recent achievement in overcoming the problems of vast
coverage and information return. The Gemini manned flights included
successful experiments in selective photography.” 4 When this pro-
cedure becomes operational in the Air Force Manned Orbiting
Laboratory project,” 5 surveillance from space will have reached a
new plateau of capability.
It is valuable at this point to compare the capabilities or recon-
naissance satellites with those of the U-2, in view of the determination
of the United States to use the U-2 over Cuba, Red China “6 and the
Soviet Union, at least until 19 60.117 Although direct information is
not available, Amrom Katz has estimated the ground resolution of
U-2 photography at about five to seven feet.” 8 It is probable that
present operational United States photography attains resolutions
of about eight feet and lower.” 9 With better films and increasing
focal length, the resolution capabilities of the U-2 and low orbit
reconnaissance satellites will be equal in the near future. And though
the resolving power of satellite photography may not have reached
that of the U-2, other advantages of satellites seem to make them
more valuable than the U-2. Photointerpretation, in light of its con-
tinuous development,’ 20 has almost certainly surpassed that in 1960
when the U-2 controversy flared. And perhaps more importantly, the
ground coverage capabilities of reconnaissance by satellite is several
orders of magnitude greater than was available with the U-2. At
113 Reconnaissance Satellites, Interavia, January, 1965, p. 104, 106.
114 See Newsweek, Sept. 27, 1965, p. 88. See also New York Times, Aug. 25,
1965, p. 24C, concerning Gemini 5 (August, 1965) astronauts sighting and
photographing a Minuteman solid-fueled ICBM firing, and taking infra-red
measurements. Katz, supra note 92:
An observer aboard a satellite could, in principle, study a large amount of
data and transmit selected portions of the data, or, perhaps, selected
remarks about the data. This form of data processing would greatly reduce
the complexity of communications facilities …
115 See Time, Sept. 3, 1965, p. 51; New York Times, Aug. 29, 1965, p. 1E,
col. 4.
116 See Reconnaissance Satellites, Interavia, January, 1965, p. 104.
11″ See, e.g., Katz, The Soviets and the U-2 Photos – An Heuristic Argument,
The Rand Corporation, Memorandum RM-3584-PR
18 Id. at 7.
:119 Notes 101-105, supra, and accompanying text.
12o See notes 89-92, supra, and accompanying text.
(March, 1963).
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RECONNAISSANCE SATELLITES
the present time this capability can be utilized only with the relatively
slow process of physical return of the film. When manned selective
coverage becomes operational, however, the full coverage capability
of reconnaissance from space will be much nearer availability. Also,
though it has been asserted that both the United States 121 and the
Soviet Union 122 are developing means of downing hostile spacecraft,
this “space denial” is not yet nearly so great a threat as was the
possibility of downing the high-flying U-2s . 23
In analyzing the inspection capabilities of present reconnaissance
satellites, it must be remembered that, as a general rule, the ground
resolution required for identification of an object is five times the
quality which will suffice for detection of that object.’2 Assuming
good atmospheric conditions and no concealment measures by the
observed state, the photographic satellite systems reportedly in use
by the United States, utilizing a resolution of about 70 feet for
mapping and surveillance, and resolutions down to 8 feet and lower
for detailed inspection, would detect and properly identify militarily
useful transport centers, selected industry and military install-
ations. 2 5 Resolutions ranging only down to 32 feet allow identification
of most of the components of these facilities, such as railroad
vehicles, tanks, aircraft storage areas, and roads. 26 “It is clear that
these scales and estimated ground resolutions are entirely adequate
for discerning the gross strategic capability of the Soviet Union,
plus much of its tactical capability.’ 21 7 According to a report issued
in January, 1960, on the 1958 United Nations Conference on “Possible
Measures Which Might be Helpful in Preventing Surprise Attack,”
ground resolutions of 75 to 100 feet
… should yield detection of missile launch pads, as well as the location and
gross characteristics of all major airfields. Most communications lines and
many areas of activity will be found which require examination at higher
resolution in order -to identify. It will be possible to detect large moving
ships at sea due to their conspicuous wakes.1 28
121 See, e.g., New York Times, Aug. 29, 1965, p. 1E, col. 4.
122 E.g., VAN DYKE, supra note 76, at 56.
123 See Abt, Space Denial: Costs and Consequences, Air Force and Space
Digest, vol. XLVI, March, 1963, p. 45.
124 Reconnaissance Satellites, Interavia, January, 1965, p. 106; Brennan, supra
note 98, at 135; SPACE HANDBOOK, AsTRONAUTICS AND ITS APPLICATION, ch. 21,
note 6.
125 See Levison, Capabilities and Limitations of Aerial Inspection, in MELMAN,
INSPECTION FOR DISARMAMENT 60, 67 (1958).
126 Jennings, Meeker, Prayer, Cook, Ground Resolution Final Report, RADC-
TDR-63-224, NASA Accession No. N64-12639
(November, 1963).
127 Reconnaissance Satellites, Interavia, January, 1965, p. 106.
128 Ibid.
McGILL LAW JOURNAL
[Vol. 13
The United Nations report concluded that a ground resolution of
5 to 10 feet would be required for precise identification of weapons
with a surprise attack capability; at this resolution, said the report:
“An ICBM system would be recognized by identification of some of
its components, such as the logistic support vehicles, launch devices,
guidance and communication vans, warhead storage, etc.”‘1 29 A recent
NASA report states that air launch missiles are identifiable as towed
weapons and probably as specific air launch weapons, at resolutions
of 4 to 8 feet.130 Thus, the present United States ground resolution
capability of eight feet should allow identification of the surprise
attack capability of the Soviet Union.
It is not valid to assume, however, as do these estimates, that
the observed nation will not take concealment measures.
Knowing itself to be under satellite surveillance, the opponent would seek
to install new fixed bases in areas and in ways that would make them
hard to detect from outer space (for example, in industrial and mining
areas) … He will try to beat our intelligence system, and, though he
cannot do this without incurring some extra cost, the costs are unlikely
to be very substantial.1 31
Also, darkness and cloud cover will severely limit satellite per-
formance. Moreover, it has been argued that even aside from conceal-
ment measures, reconnaissance from space is capable only of detection
and identification of missile site construction, and that missiles
installed before these satellites became operational in about 1962
are now beyond detection. 3 2
Because of the problems in detecting and identifying nuclear
attack capability, some writers have argued that the value of recon-
naissance satellites lies in “giving advance warning of conventional
types of attack, involving considerable troop movements and airforce
deployments,” for which traditional intelligence methods are just as
capable. 33 It
is true that, in part because of these difficulties, a
satellite reconnaissance system will require coordination with con-
ventional intelligence methods to provide reliable identification of
weapons with a nuclear attack capability and thus cannot reliably
constitute the sole intelligence method depended upon. As of July,
1962, however, these satellites indicated that the Soviet missile sites
129 Ibid.
130 Note 126, supra, at 71.
131 Knorr, Klaus, On the International Implications of Outer Space, The Rand
Corporation, Report R-362-RC, p. 133, 145; Brennan, supra note 98, at 138.
132 E.g., Knorr, supra note 131, at 143; Levison, supra note 125, at 73. But
see Reconnaissance Satellites, Interavia, January, 1965, p. 104.
133 Knorr, supra note 131, at 144. See Levison, supra note 125, at 73-74.
RECONNAISSANCE SATELLITES
No. 3]
were above-ground and highly vulnerable.134 The construction required
to protect these sites or build new sites certainly could not go largely
undetected since that time, notwithstanding cloud cover and dark-
ness. In view of this fact, and the value of reconnaissance satellites to
the United States during the Cuban missile crisis of 1962,135 it is
not likely that the United States will abstain from their use without
some favorable alternative.
C. Difficulties in Making Legal Characterization Meaningful:
Enforcement
If the international community eventually proscribes reconnais-
sance from space, the view in the West that some means of enforce-
ment or “effective control” is necessary to make such a ban meaning-
fu1136 is reasonable. With that community largely unorganized, it is
probable that most “control” measures would be taken unilaterally.
However, as cooperation in space activities increases significantly,
particularly under the aegis of the United Nations, multilateral
enforcement activities may become feasible. The means of enforce-
ment may range from those of a coercive nature, as by physical
interception of offending satellites, to persuasive and diplomatic
means, as by formal complaint through diplomatic channels, or
perhaps by establishment of a multi-nation committee for pre-launch
inspection and publicity.
1. Views of participants
While the controversy over the legality of reconnaissance satellites
has continued since about 1958, views on the propriety of various
measures of control of these activities have focused primarily on
unilateral means, and have not progressed to significant articulation
of the desirability of various multilateral means.
Those United States spokesmen who, early in the development of
satellite activity, believed it advisable to oppose reconnaissance
activities in space also felt that physical interception, or at least
134 Hanson Baldwin, New York Times, July 26, 1962, p. 1, quoted
in
Reconnaissance Satellites, Interavia, January, 1965, p. 104.
1s5 Ibid.
136 E.g., statement of Sir Pierson Dixon, for the United Kingdom, U.N. Doc.
NO. A/C.1/SR.982/213, quoted in SCHICK, supra note 80 at 28. See also the
description of U.S. and Western proposals in the U.N. for controls to assure
space will be used for peaceful purposes only. SENATE STAFF REPORT, supra
note 81 at 159-60.
McGILL LAW JOURNAL
[Vol. 13
incapacitation, of non-friendly reconnaissance satellites constituted
proper protection of this country’s security. 3 7 Of course, in conso-
nance with the present United States position opposing any ban on
reconnaissance satellites, the United States is precluded from sup-
porting any activity to enforce such a ban.
The original Soviet position as stated by Khrushchev seemed to
advocate clearly forcible interception of reconnaissance craft: “they
will also be paralyzed and rebuffed.’ 3 8 However, since that time,
the position of Soviet jurists on the proper means of preventing
reconnaissance from space has vacillated. In January, 1959, E. Koro-
vin wrote that destruction of a satellite of another country, “even if
employed for reconnaissance,” is an act of war ;139 rather
interested governments have a rdght -to measures conforming to the letter
and the spirit of the U. N. Charter in order to avert actions taken in space
which are directed against them. They may undertake diplomatic representa-
tions, as well as reprisals and retaliation of a non-military nature.1 4o
Later in 1959, G. P. Zhukov quoted with approval Khrushchev’s
original threat that reconnaissance satellites would be “paralyzed
and rebuffed,” stating that “such action will be fully justified under
the existing rules of international law and the United Nations
Charter”.’ 4 ‘ This Soviet approval of forcible interception was renewed
by Zadorozhnyi in 1962.142 But in 1964, another Soviet article, without
specifically mentioning reconnaissance satellites, denounced
the
theory that article 51 of the United Nations Charter allowed pre-
ventive attack upon a spacecraft, and argued that article 51 only
applies in the case of an armed attack.143
It would seem that the Soviet position on the proper means to
enforce a ban on reconnaissance satellites has followed the Soviet
views on the basic question of the legality of reconnaissance satellites.
As it has done on the basic issue, the Soviet Union has left the door
open, by equivocation, to deny the validity of interception if it ulti-
137 McDouGAL, LASSWELL, AND VLASIC, LAW AND PUBLIC ORDER IN SPACE
313 (1963), quoting Senator Keating in 1961 Congressional Hearings; GAVIN,
(1958), quoted in McDoUGAL, ET AL.
WAR AND PEACE IN THE SPACE AGE 224
supra at 312-13.
138 MCDOUGAL, LASSWELL, AND VLASIC, supra note 137 at 315.
139 Korovin, International Status of Cosmic Space, International Affairs
(Moscow), No. 1, 1959, p. 53, quoted in S. Doc. No. 26, 1062, 1066.
140 Id. at 1067.
141Zhukov, Space Espionage Plans and International Law, International
Affairs (Moscow), no. 10, 1960, p. 53, quoted in S. Doc. No. 26, at 1101.
142 Quoted in Woetzel, supra note 41, at 130.
143Vereshchetin, Outer Space –
A Realm of Peace, International Affairs
(Moscow), No. 6, 1964, p. 98.
No. 3]
RECONNAISSANCE SATELLITES
485
mately decides that reconnaissance is valuable, while retaining the
opportunity to justify interception of .U.S. reconnaissance satellites
if it develops an interception capability.
2. Technical Difficulties of Enforcement
Enforcement, whether by forcible or diplomatic means, aside from
total denial of satellite activity to the potential offender, would
require inspection of the satellite before launch or in flight,”or
monitoring of the information returned, to determine whether the
purpose of the mission was illegal reconnaissance.
Agreement for inspection before launch at present seems to be
the most feasible possibility technologically, though an interhational
system for the inspection of launches to assure that reconnaissance is
not attempted is scarcely to be expected in the near future. Also, it
is doubtful whether, even if agreement could be reached, competent
inspection methods could be developed. Finding photographic equip-
ment aboard a satellite would not suffice to determine a violation,
for virtually every type earth satellite now orbitting has photographic
equipment. It would be necessary to determine by experiment whether
the cameras found were of the low quality resolution type sometimes
used for cloud cover studies in weather satellites, or of high quality
resolution possibly used for reconnaissance. And even, were high
quality resolution cameras found aboard, the launching state could
validly claim they were to be directed not to earth, but to celestial
bodies. If infra-red detection systems were included within a ban
on reconnaissance satellites, it would probably be, extremely difficult
for an inspector to distinguish between infra-red reconnaissance
systems and infra-red systems’used for geological and crop surveys.
It is worthy of note that in April of 1962 the United States submitted
a proposal for prelaunch inspection by the International Disarmament
Organization in conjunction with the space aspects of the 1962 dis-
armament conference, but only after the Soviets had stated: “Any
sort of international inspection is out of the question.’ 144
International or unilateral inspection of satellites in orbit is
another possible -means of. identification of
the reconnaissance
function of satellites. However, the ability to inspect satellites in
,orbit has not yet been developed. It is true that the proposed inspect-
ion system need only be concerned with satellites at a relatively low
altitude, because of present restrictions on photographic systems. 145
144 SENATE STAFF RE1i61T, supra note 81, at 239.
i45Abt, Space Denial: Costs and Consequences, Air Force aid Space Digest,
vol. XLVI, March, 1963, p. 45.
McGILL LAW JOURNAL
[Vol. 13
However, within such low orbits satellites of all sorts abound –
recon-
and
naissance, early warning, communications, weather, geological –
the problem of functional identification becomes virtually insurmount-
able.146 Even were photographic or infra-red systems detectable, the
difficulties in identifying them as illegal reconnaissance apparatus
would be even greater than in prelaunch inspection. Manned inspect-
ion in space may alter significantly present in-orit inspection
capabilities, but the detection and rendezvous problem, 147 among
others, will keep such methods from operational status in the near
future. It is notable that the Soviet Union has in effect eliminated
the need for functional identification by branding as “espionage”
virtually every type of United States earth satellite, including recon-
naissance, weather, geodetic, geological, and navigational satellites. 148
Inability to devise a system capable of functionally identifying
reconnaissance craft, and selectively eliminating them from launch
or orbit, does not foreclose the possibility of enforcing a ban by
criteria not so selective. Thus, the ban could be enforced by means
ranging from total space denial of all earth satellites to destruction
of all satellites possessing photographic and infra-red apparatus.
Total space denial under international auspices would of necessity
deny to all countries the right to engage in earth orbitting activities,
an alternative not acceptable in view of the nonaggressive nature of
reconnaissance satellites, and the innumberable valuable scientific
space endeavors which would be foreclosed. 149 Unilateral total space
denial would, when more than one nation developed the requisite
capability, have the same effect –
it would virtually deny space
activities to both enforcer and alleged offender. It would seem that
the detection and destruction of only satellites using photographic
and infra-red apparatus, internationally or unilaterally, would not in
such great degree eliminated earth orbitting activities, until it is
remembered that most present scientific space endeavors use such
apparatus.
One enforcement possibility not often proposed is inspection of
the data returned from orbiting craft. Observers at the receiving
stations of the launching state could police data returned teleme-
trically. Inspection of data capsules physically returned, however,
would be more difficult, because of the difficulty in determining
(and persuading states to divulge) when and where such returns
146 Ibid.
147 See Time, December 24, 1965, p. 32.
148 E.g., Mader, U.S. Militarist Plans in Space, International Affairs (Moscow),
No. 8, 1965, p. 55.
149 See discussion by Abt, supra note 145.
No. 3J
RECONNAISSANCE SATELLITES
were to be made. Because in-orbit inspections are not feasible in the
near future, pre-launch inspection and inspection of returned data
seem to be the most likely possibilities, should all participants ever
consent to inspection in any form.
III. International Use for Peacekeeping
Because of the questionable reliability of the information from
satellites, caused by concealment measures taken by the observed
state and by adverse weather and light conditions, reconnaissance
satellites may constitute a major component of any intelligence
system, but the system as a whole will require coordination with
conventional intelligence methods to provide reliable identification
of weapons with a surprise attack capability. In order to achieve
this coordination, the United States will be less likely to relinquish
completely its satellite system to an international body. This would
not prevent it from contributing to a system under an international
body while continuing its unilateral use, or alternatively, from making
the data from its system available for international consumption.
Such international use could provide inspection of an arms control
agreement, or, without an agreement, under a stabilization plan
such as the previous “open skies” proposal i50
The prime factor leading to the failure of the United States and
the Soviet Union to reach agreement upon arms control has been
difference over the inspection issue. But reconnaissance from space
is not the deep penetration into society to which the Soviet Union
has objected in previous plans for inspection, which entail intrusion
of foreign inspectors. Notwithstanding this fact, the Soviet objection
to the “invasion of its secrecy” has been extended to objection to the
use of reconnaissance satellites to gather information on force levels
and strategic preparations. As Donald Brennan points out,
… one understandable reason for Soviet nervousness over our acquisition of
such information is that, with conventional fixed missile sites and bomber
bases, it is difficult to obtain reliable inventory information about force
(i.e., numbers of weapons and carriers) without also obtaining
levels
targetting information (i.e., location of weapons and carriers.)151
A number of arrangements for the use of reconnaissance satellites
under international auspices are possible. One of these is that nations
150 At present, however, the Soviets have indicated only disapproval of proposals
to utilize reconnaissance from space as an alternative to the previously rejected
U.S. “open skies” plan. E.g., Mader, supra note 148 at 57.
15- Brennan, supra note 98, at 137.
McGILL LAW JOURNAL
[Vol. 13
turn over their space reconnaissance systems to an international
organ. This is perhaps the least feasible program, in view of the
difficulty in policing the concomitant ban on unilateral use of recon-
naissance satellites, and the hesitancy of nations to entrust their
security to an international organ or any other body not under their
own control. Concurrent unilateral and multilateral systems of recon-
naissance, however, would enable a country to retain the reassurance
of unilateral control. A third possibility is unilateral organized use
under which nations retain full control of satellite systems but
disseminate for international consumption the information gained.
Equal quality of information concerning all nations could be assured
by an agreement to proliferate the reconnaissance capabilities of the
most capable participant. Measures to assure that no valuable infor-
mation is withheld, however, would be difficult to devise.
All these possibilities would require of the Soviet Union a with-
drawal of previous statements on the use of space for intelligence
purposes, which is not a likely event. Similarly, they would require
the dissemination of highly sensitive information to many nations
not all of whom are regarded as stable, to which neither the United
States nor the Soviet Union would be particularly amenable. Con-
tinuation of the status quo, however, may in fact eliminate these
objectionable characteristics of international agreement, and yet
closely approach achievement of the ends sought by the proposals
for international use. It is arguable that continued use or recon-
naissance satellites is being accepted as a means of peacekeeping
similar to the Open Skies proposal,’ 52 and as a means for policing the
Moscow test ban treaty.153 The termination of Soviet statements on
the illegality of reconnaissance satellites leads one to believe that
tacit acceptance of these satellites as a device to stabilize an uneasy
“peace” (as opposed to nuclear war) exists today and will continue
to develop.
Conclusion
Although,- as was predictable, in the sensitive areas of intelligence
and military activities the 1967 Space Treaty falls short, the Treaty
will have a major effect on reconnaissance from space. The Treaty
proscribes non-peaceful activities and military
installations and
manoeuvres on the moon and other celestial bodies. When recon-
152 “Once Scorned ‘Open Skies’ Plan Now Reality,” UPI, New Haven Register,
Sept. 26, 1965, sec. 1, p. 5.
153 Haggerty, A-Ban. Treaty Spotlights Vela Hotel, Army Navy Air Force
Journal, vol. C, August 17, 1963, p. 15; Life, Dec. 30, 1966, p. 100.
No. 3]
RECONNAISSANCE SATELLITES
the questions
naissance -from celestial bodies becomes feasible,
whether reconnaissance
is peaceful and -whether it is “military”
(which has thus far been uncritically assumed) will be forced to
confrontation. Because of the value of reconnaissance to the Soviet
Union ‘and the United States, it is somewhat surprising that these
principles restricting activities on celestial bodies to those of a
“peaceful” and “non-military” nature were proposed by both
nations5 4 and accepted in the Legal Sub-committee without signifi-
cant discussion of ramifications. This development is even more
curious in view of the fact that it was apparently a realization of
these ramifications which caused the United States and the Soviet
Union to staunchly ignore the repeated entreaties of other nations
to extend these principles to all of outer space. 55
Today, customary prescriptions are created quickly, compared
with the law-creating processes of even the last century. In space,
which is a new environment, the development of law, unfettered by
old situational concepts, will probably be even more swift. There has
been sufficient time for law-creating processes to determine the legal
characterization of reconnaissance satellites, as is witnessed by the
oftstated argument that in less than ten years state practice has
determined that soveriegnty does not extend to outer space. But on
the question of the legal status of reconnaissance, time and the new
environment of space are not determinative. While the locus of the
activity is space, the function or intended effect of the activity is
merely an extension of an age-old practice which has always trodden
heavily upon sensitive national feelings –
viz., intrusion into the
social, political and military processes of society to gain information.
Unequivocal expression by the Soviet Union and other Bloc
countries that reconnaissance satellites are illegal -has apparently
ceased. Their position until 1963, however, was one of strong protest
of United States reconnaissance activities. Protest has a unique
position in the creation- or hindrance of international’ law anid the
effects of these strong protests will probably linger, hindering any
acceptance by the international community of the legal status of
reconnaissance from space. Furthermore, by continuous equivocal
comments that United States space efforts are not “peaceful” because
they include “space espionage,” the Soviet Union possibly seeks to
reserve the right to reject legalization of reconnaissance from space,
hotwithstanding their own use of these instruments. -Also, though
154U.N. Doc. No. A/AC.105/35, Oct. 21, 1966, p. 7 (United States draft
treaty), and-p. 12 (Soviet draft treaty).
155 See note 20, supra.
McGILL LAW JOURNAL
[Vol. 13
most United States authorities support the legality of reconnaissance,
it is not certain whether this nation would accept unhindered recon-
naissance of our own processes if the question were put up for
unequivocal decision. It is submitted that reconnaissance from space
may be characterized as clegal, and that most nations are for the
present satisfied with this characterization.
This status may change, however, when a reconnaissance satellite
is intercepted, if the reconnoitering state chooses to force an answer
to the question by protesting the interception. When the question is
in this or in some other manner forced to a decision, the determination
of legality will depend not so much on the past expressions of the
nations concerned, as on their past actions. The consistent use of
reconnaissance from space by the United States and its failure to
condemn similar Soviet efforts will virtually preclude the United States
from successfully asserting that such activity is illegal. The more
recent – yet also consistent –
reconnaissance efforts by the Soviet
Union will bear likewise upon its arguing that these efforts are
condemned by international law. Soviet statements since 1963 have
been so equivocal that it is doubtful whether it has successfully
reserved the right to condemn reconnaissance
from space. The
“objective” element of customary law –
is
sufficiently provided by the reconnaissance efforts of both nations.
Determination whether the “subjective” element –
“acceptance as
law”‘ 56 –
is fulfilled by the Soviet Union will be decisive.
the practice of states –
Aside from the arguments that reconnaissance from space is
legal because it is “peaceful” and because it is necessary in proper
self-defense, the main thrust of the Western view is based on the
fact that the locus of the activity is outside the boundary of the
exclusive sovereignty of underlying states. This argument delimits
legality primarily according to territorial and spatial criteria.
The importance of territorial and spatial criteria as ordering
devices was derived from eras in which these criteria were function-
ally appropriate. These criteria are inherently valid in allocation of land
ownership, and allocation of ordering jurisdiction among land based
societies, in which exclusivity of competence is required by the
nature of the situation. However, in those places and situations which
lend themselves to the activities of numerous participants simul-
taneously, the inherent relation of spatial and territorial criteria to
the conduct ordered decreases, and functional criteria, i.e., description
of the activities to be ordered, grow in importance. Of course, even
in these situations of multi-national activity, spatial criteria continue
1056 E.g., WOLFKE, CUSTOM IN PRIJSENT INTERNATIONAL LAW 51-58 (1964).
No.. 3]
RECONNAISSANCE SATELLITES
(1)
to be accorded importance for two reasons:
in (geographic)
areas of multinational activity near areas of exclusive jurisdiction,
spatial criteria, though not so inherently appropriate, are applied
with some success in achieving desired goals; e.g., the use of the
territorial sea as a security device; (2) nations are hesitant to discard
previously acquired competence in handling of spatial and territorial
criteria. In space, however, the vast distances and times involved,
together with functions virtually unrestricted by distance barriers,
decrease to perhaps nothing the lingering relevance of spatial and
territorial criteria of legality. Soon we must become competent to
utilize primarily functional criteria.
These observations are peculiarly true of reconnaissance from
space. The rapid development of traditional sensor devices, and the
creation of new sensor devices illustrate that distance barriers, though
perhaps often restrictive of the systems, become less so as time
passes, making any momentarily established distance criteria of
legality eventually meaningless.
It would thus seem that the Soviet argument that it makes no
difference to an underlying nation from which altitude it is “spied-
upon” is correct, and that U.S. dependence upon an air-space-outer
space “boundary” as delimiting the legality of reconnaissance will
eventually be recognized as ill-founded. However, this does not require
the conclusion that the Soviet argument that these activities are
illegal is correct. Rather, it raises the crucial question whether the
same reevaluation of changing criteria of legality which invalidates
the United States argument does not also invalidate the Soviet
argument that all reconnaissance is illegal.
The Soviet position, assuming it has not changed since 1963, is
that any attempts by non-Soviet nations to gain information which
the Soviets wish to keep secret are illegal. Thus the Soviets’ right to
proscribe the activity is unrestricted by the spatial location of the
observing instrument. While this position may be a significant change
from traditional theories, it cannot be claimed to be erroneous simply
because it regulates activity outside the Soviet Union; witness the
United States application of its anti-trust laws to non-nitionals acting
outside United States borders, and the generally accepted (though
perhaps not followed) international prescription of the allowance of
use of one’s territory to foment civil trife in other territories. Per-
haps the most objectionable aspect of the Soviet view is the broad
competence which the Soviets accord themselves in defining the
limits of the proscription –
all information which they desire kept
secret is protected by this secrecy, sovereignty doctrine. The Soviets
fail to base this position on an acceptable policy reason, saying only
- McGILL LAW JOURNAL’
[Vol..-13
[
that it is’ necessary for the “security” of the underlying state, an
argument vhich is as7 unacceptable as that of the United States
basing the legality of reconnaissance on the all-encompassing right
of “self-defense.”
Richard Falk supports the pre-1963 Soviet position on reconnaiss-
ance because of its “probable destabilizing effect.”‘l
It would seem
that he has come upon a valid policy basis for a legal characterization:
whether the activity concerned increases or decreases the stability
of world order.
Without the use of reconnaissance satellites there exists an
undeniable gap in intelligence information possessed by the United
States and the Soviet Union. This can hardly be characterized as a
stable situation. And it is unlikely that stability would be greater
if neither camp had any effective intelligence operation. Use of
-reconnaissance satellites by both the Soviet Union and the United
States, however, would mean that both nations would have more
valid information on the forces and intentions of the other, and
would have less need to build arms systems capable of meeting a
more vast number of unknown possibilities. It may be charged that
this is simply a rehash of the previously unsuccessful Open Skies
proposals, a charge which is in large part valid. Two of the reasons
for which those proposals failed, however, were thf they required
an intrusion into airspace, relatively proximate to the social processes
below, and they required a reversal of the firmly entrenched doctrine
of sovereignty
in airspace. Neither of the conditions similarly
restricts acceptance of the legality of reconnaissance satellites. It is
submitted that the period before the crystallization of a legal regime
in outer space is a most opportune time to reassess the validity of
time-honored fears of a free flow of strategic information.
The decreasing friction between the United States and the Soviet
Union over reconnaissance satellites indicates a recognition of their
stabilizing effects. This acceptance of intelligence gathering from
space, however, is endangered by the provisions of the 1967 Space
Treaty. Particularly, the Treaty proscribes all military manoeuvres on
the moon and celestial bodies, and the records of the Space Committee
indicate a feeling on the part of many representatives (not including
those of the United States, the Soviet Union and the close allies of
each) that the spirit of these proscriptions should ‘extend to all of
outer space. As the British representative has pointed out,r 8 this
157 Falk, supra note 42, at 105, 113.
158U.N. Doc. No. A/AC.105/C.2/ SR. 71, Oct. 21, 1966, p. 5.,
No. 3]
RECONNAISSANCE SATELLITES
493
broad, uncritical proscription fails to take cognizance of the peace-
keeping nature of numerous activities which technically may fall
within the definition of “military.”
The abeyance since 1963 of vehement Soviet charges that Western
reconnaissance satellites are “illegal” would seem to be in part due
to a realization of the stabilizing nature of reconnaissance satellites,
and in part due to other considerations. The Soviet equivocation in
1963 on the illegality of military uses of space in general, and
reconnaissance satellites in particular, followed the more inclusive
Soviet turnabout in 1962 to a position advocating internationalism in
space’ endeavors. The political reason attributed to the Soviet policy
change in 1962 is a desire to gain greater acceptance in the inter-
national community.159 However, recent Soviet articles criticizing the
t’non-peaceful” nature of United States reconnaissance satellites
indicates that the only connection between the 1962 policy of “cooper-
ation” and the sudden 1963 dropping of the theretofore strongly in-
pressed charges of illegality of reconnaissance was a desire by the
Soviets not to allow themselves to be criticized for preventing adoption
of the much desired 1962 (XVIII) Declaration on the Principles
Governing the Exploration of Outer Space by d legal objection to
an essentially non-aggressive and minor activity. Having dropped
the issue for-that reason, the Soviets forbear (thus far) to reassert
the illegality of reconnaissance satellites and other military uses for
these further reasons: (1) a judgment that there may be criticism
for reviving an objection dropped in 1963; (2) a desire to foreclose
agreement on military uses of outer space until agreement on geneial
and complete disarmament is accepted by the West; (3) a desire to
participate in reconnaissance activities; (4) a realization that the
stabilizing nature of reconnaissance satellite activity will ensure that
Communist past and future successes in expansion by subversion and
limited warfare will not be eradicated-by nuclear holocaust.
159 SENATE STAFF ;REPORT, Supra note 81 at 242-43.
