SPACE VEHICLES, SATELLITES, AND THE LAW
James T. Lyon*
NOTE: This article is intended to complement the “Historical Survey of
International Air Law”** by giving an Introduction to the new field of
Space Law, which is still in its earliest stages.
Introduction
The scientific investigation of the realms of space in recent years has given
rise to widespread legal speculation. Even before Sputnik 1 was launched in
October, 1957, legal commentators foresaw some of the problems which would
arise, and the events which have followed since then have emphasised both the
importance of this field of activity, and the lack of laws which exist to govern
it. It has been said that the learned discussions of the emergent law of outer
space have been of necessity conducted in a vacuum of State practice and of
publicly uttered official opinion.
The Law, like Nature, abhors a vacuum, and it is hoped that this article
will review, in a brief compass, some of the problems which have been con-
sidered, and the solutions which have been offered.
Jurisdictional Boundary Between Air Law and Space Law
Wherever its final destination may lie, every aircraft and space-craft must
first penetrate that belt of air which surrounds the earth, and which has been
for many years the subject of an ever-increasing volume of national and inter-
national legislation. Before a proposed law of space may be considered, there-
fore, reference must be made to the pre-existing substantive law of the air.
This is particularly important in the determination of the areas of application
of the law of the air and the law of space.
The cardinal principle of air law, discussed before World War I, established
by the Paris Convention of 1919, and coiafirmed by the Chicago Convention of
1944, is that every State has complete and exclusive sovereignty over the air-
space above its territory1 . Amongst the States which did not sign the Chicago
Convention, the U.S.S.R. has adopted an identical rule by providing in Article 1
*Graduate student in the Institute of Air and Space Law, McGill University.
**(1960-61) 7 McGill Law Journal Nos. 1 and 2.
‘Convention on International Civil Aviation, Chicago, 1944, Article 1. See also Sand, Freitas,
and Pratt. An Htstorical Survey of International Air Lau. Before the Second World War, (1960-61) 7 McGill
Law Journal, 24 et sey.
McGILL LAW JOURNAL
[Vol. 7
of its Air Code that “To the Union of S.S.R. belongs the complete and exclusive
sovereignty over the airspace of the Union of S.S.R.” 2 Some national legisla-
tions are founded on variations of this theme: the 1950 Constitution of Nicaragua
includes as national territory the “atmospheric space’ and the “stratosphere”
above the nation, while the laws of Brazil refer simply to “space”.
The practical application of such statements is complicated by their vague-
ness. While it is relatively easy to establish the horizontal extent of the air-
space in which sovereignty is claimed, it is impossible to determine the inter-
nationally recognised vertical limitations, if, indeed, such limitations exist.
Whether due to one of the “prudent ambiguities of cautious statesmen” or to
a dearth of technical foreknowledge, the drafters of the Chicago Convention
have left-the question open: the Convention offers no precise height limit for
the exercise of State sovereignty._,
This has led to one of the most vexed problems of the nascent law of space.
If there be no vertical limit to the area in which State sovereignty is claimed,
then this area will be projected into outer space, and will affect space itself,.
artificial satellites and other ip’;c – rehicles, and stellar bodies; if there be a
vertical limit, it must be at some determinable height above the earth, so that
it will be known when an object is subject to State” law and when it is not.
There has been great diversity of.opinion as to what height limit, if any,
should be accepted.
In 1906 it was possible for Westlake to state that no limit exists “for the
sovereignty of the State above the airspace”. “The right of the subjacent
State remains the same whatever the distance.”4 In the light of presefit know-
ledge, however, it will be noted that the second part of the quotation exceeds
the first. That is, a claim “whatever the distance” would involve such regions
of space as are traversed by the Russian Venus rocket of February 1961, which
are patently beyond the realms of airspace.
More recently it has been said that’State sovereignty extends in practice into
“all space which can be used by man”,’ and the term “airspace” in Article 1
of the Chicago Convention has been interpreted to mean “usable space” or
“all space accessible to man’ 6. Some few writers have taken the position that
the “Chicago Convention and domestic Constitutional or Statutory pronounce-
2Vide Galina, A., On the Quetion of Iterplantary Law, Sovetskoc Gosudarstvo i Pravo No 7, July
1958, 52-58; reprinted in Space Law: A ymposium, Washington, D.C., 1959, 508. (hereinafter cited
as Space Law).
Vide Jessup, P. C., and Taubenfeld, H. J., Controls for Outer Space, New York, 1959, 336, Note 51.
4Westlakc, cited by Cooper, J..C., High Altitude Flight and National Sovereignty, 4 International Law
Quarterly, 1951, 412.
6Saint-Alary, R., La Droit Aerien, Paris, 1955, 66; cited by Galina, A., op. cit. Note 2 .upra, 509.
Peng, Ming-Min, Le vol J haute altitudeet l’article I de la Convention de Chicago, 1944, 12 Revue du
Barreau de la Province de QuEbec, 1952, 292.
No. 4]
ments on sovereignty in space are automatically applicable to outer space”. 7
Most of these statements were made before the launching of Sputnik 1.
HISTORY OF AIR LAW
If this position be accepted, it follows that sovereignty may be extended as
far into space as human endeavour may reach, and that “all the rules of law,
Conventional and National, relative to aerial navigation are applicable with
full effect to all types of flight, at whatever height”. 8 It would be difficult to
apply this broad statement to actual cases. To illustrate the point, the Chicago
Convention forbids the overflight of national territory by pilotless aircraft
without special authorisation,’ but no State has so far sought permission to
launch artificial satellites which are pilotless, and which overfly foreign national
territory.
Of recent years this position has been sharply criticised. In the U.S.S.R.,
the concept of national sovereignty in outer space has been dismissed as “un-
scientific geocentralism, a return from Copernicus to Ptolemy”‘ 0 , and it has
been thought reasonable to recognise that no State has the right to submit parts
of cosmic space to its own legislation, administration, and jurisdiction”. In the
United States, one commentator writes that “we must agree that there is an
upper boundary in space to the territory of the subjacent State’ ’12, and another
has referred to the “absurdity of claims to sovereignty in outer space”13. In the
United Kingdom it has been opined that the projection of the territorial
sovereignty of a State beyond the atmosphere above its territory would be so
completely “out of relation to the scale of the Universe as to be wholly
ridiculous”‘ 4, and indeed it is difficult to find a valid objection to this body of
opinion. In view of the infinite distances of space, it may not be Mal A propos
to classify claims to an indefinite vertical projection of sovereignty with a
possible claim by the Misicians’ Union to Royalties ofi the Music of the
Spheres.
Various bases have been offered for the determination of the upper limit of
State sovereignty, and so for the lower limit of outer space. These are,
principally, “airspace” in the sense of “atmospheric space”; physical boundaries
7Danier, E., and Saporta, M., Ls Saellites Artificies, 18 Revue G.n&ale de l’Air, 1955, 297;
Acim R mem Low Maxiwg oee Begging,
Sulzberger, Air Space–A Need for Definition is Son, bast
New York Times, 24th Feb., 1958, cited by McDougal, M. S., and Lipson, L., Perspectives fora Lao
of Space, 52 American Journal of International Law, 1958, 422.
sPeng, Ming-Min, op. cit. Note 6 supra, 292.
9Article 8.
“0Korovin, Ixternational Status of Cosmic Space, International Affairs, 53-59 (Moscow), No. 1
(Jan. 1959); cited by.Jessup and Taubenfeld, op. cit. Note 4 supra, 220.
UGalina, A., op. cit. Note 2 supra, 514.
-Cooper, J. C., op. cit. Note 4 sApra, 417.
“Lissitzyn, 0. J., The American Position on Oster Space ad Antmarctica, 53 American Journal of
International Law, 1959, 129.
‘4jenks, C. W., International Law and Actititits in Space, 5 International and Comparative Law
Quarterly, 1956, 103.
McGILL LAW JOURNAL
[Vol. 7
created by the natural laws of gravity and centrifugal force; and a miscellany
of others.
Even when it is accepted that the Conventional and National legislations
refer to “atmospheric space” when they speak of “airspace”,
there is still
much room for debate. If the upper boundary of a State’s territory were limited
to the area used by airborne craft, “this would not depart from the meaning of
airspace”‘ 15 as understood in civil aviation treaties. Professor Cooper at one
time maintained the same view by examining together Article 1 of the Chicago
Convention and Annex 6 which defines aircraft. He suggested1” that a new
Convention should be created, reaffirming the present Article 1 of the Chicago
Convention, but limiting it vertically to the height to which aircraft as defined
in the Chicago Annex can operate, i.e. to some thirty miles. He then refined
the suggestion by proposing that above that altitude there should still be a
“contiguous zone” of sovereignty, through which there would be a right of
transit for “all non-military flight instrumentalities when ascending or
descending”. Above that there was to be freedom from sovereignty.1 7 Sugges-
tions of this “atmospheric” nature have received wide support”.
This support has not, however, been universal. Dr. Goedhuis, notably,
found this old theory of Professor Cooper insufficient to meet the circumstances.
He says 9 that according to this opinion the airspace above, say, twenty
miles is not airspace in the sense of Article 1 of the Chicago Convention.
“This opinion is based on a pretended connection in the two Conventions”0
on international civil aviation between the provision regarding sovereignty
over airspace and the terms in which aircraft in the meaning of these Conven-
tions are defined.”
He disagrees that such a connection exists. Article 1 of the Chicago
Convention acknowledges a general principle of law, which exists irrespective
of the Conventions, but the provisions defining aircraft are of no more than a
technical nature, not binding upon States which are not parties 21 to the
Convention. Dr. Goedhuis was unable to find any evidence in the proceedings
leading to the Paris and Chicago Conventions from which to conclude that the
States were convinced that there was no need for them to exercise sovereign
26Schachter, 0., Proceedingp, American Society of International Law, 1956,105.
16Cooper,j. C., Legal Problems of UpperSpace, 23Journal of Air Law and Commerce, 1956, 311 et sq.
lThe “contiguous zone” was amended to extend to 600 miles of altitude by a letter to The Times,
London, Sept. 2nd, 1957. Until then it was to be set at 300 miles.
l’PIpin, Cheng, Ward, Roy, cited by McDougal and Lipson, op. cit. Note 7 rupra, 422; Jenks,
Zadorozhnyi, cited by Beresford, S. M., Surveillance Aircraft and Satellites, 27 Journal of Air Law
and Commerce, No. 2, 1960, 108.
“9Goedhuis, D., Rapporteur on Air Sovereignty and the Legal Status of Outer Space, International
Law Association, New York University Conference, 1958.
sParis Convention, 1919; Chicago Convention, 1944.
‘Nor, indeed, are they binding on States which are parties to the Convention, although no State
has raised an objection to them.
No. 4]
HISTORY OF AIR LAW
rights above the space where aircraft in the meaning of the Conventions can
operate. The Conventions govern some only of the acts carried out in airspace,
while the general principle embraced in Article 1 involves other factors than
international civil aviation. “It is for this reason that proposals which have
been made . . . to limit air sovereignty above a certain altitude have never
gained acceptance by the States.” From this it is concluded that “the term
airspace in Article 1 is in accord with its literal meaning”. Since airspace is
thus not omitted by the technical annexes of the Chicago Convention, the
question arises as to where is the geophysical limit of the airspace. While
noting that physicists have differed on this point, Dr. Goedhuis considers it
not beyond the bounds of expectation that, aided by the information gleaned
by the satellites, “a communis opinio on this point may be formed” 2 2.
This common opinion has, at the time of writing, proved elusive, and,
pending its acceptance, quite diverse suggestions have been put forward.
One would have the boundary at 100 km (60 miles)23, and another at 1,000 km 24.
Commenting on this type of theory, Mr. Loftus Becker has quoted astronomical
authority to the effect that the earth’s atmosphere can be considered to extend
to 10,000 miles above the surface of the earth, and so the sovereignty of the
United States may rationally be held to extend to that height.2′
Other facets of the problem present themselves, and attempts have been
made to deal with them on a basis of natural laws. The State has a right to
protect itself, and one potential danger is that of objects falling on and causing
damage to persons and property on the State underneath. This gravitational
aspect of the question demands that the State exercise sovereignty up to the
height from which an object, if released, would not fall to the surface under the
point of release.
This height is where the algebraic sum of the earth’s and sun’s gravitational
pulls is zero 2l. This is the “old classic theory” of Westlake to which Professor
Cooper refers when he cites a “well-known astronomer” who has put this
limit at some 161,000 miles from the surface of the earth27. Kroell also put this
“frontiare cleste” at some forty earth radii (i.e. approximately 40 x 4,000
miles) from the surface 28 . Such a boundary, he says, would achieve a situation
“nette ct pricise”.
Dr. Meyer takes issue with this proposal, as it would in practice “never be
realisable” 2 9. One of the important qualities of a boundary is that it should be
2’Goedhuis, D., kc. cit. Note 19 sapra.
21B6hme, K.-H., Laftbobtit xxed Wdtramflq, ,5 Zeitschrift fur Lufrrecht, 1956, 197.
UDanier, E., Les Voyager Iterplaxitimres e le Drait, 15 Revue G&krale de l’Air, 1952, 423.
UBecker, L., Major Aspects of the P iohkm of Oter Space, Space Law, 367 et sef.
24Some writers have stated that the earth’s gravitational pull ceases at this height. This fallacy
was exposed by Roy, P. K., Procredings, American Society of International Law, 1956, 95.
“TCooper, J. C., op. cit. Note 4 sxipra, 416.
2″Krocll, J., Elhns Criatesrs d’as Droit Astraxtiq e, 16 Revue GfOrale de l’Air, 1953, 230.
2 $Meyer, A., 9 Zeitschrift fer Luftrecht, 1960, 310.
McGILL LAW” .OURNALV
[Vol. 7
possible for navigators to rcalise when it is being crossed, and if conflicts of
opinion not infrequently arise between fishermen and Fishery Protection
cruisers regarding the maritime three-mile limit, then it is difficult to see how
this proposed boundary at one hundred and sixty-odd thousands miles could
be very precise.
Another view depends on the laws of the centrifugal force imparted to a
missile or satellite. It -is possible to measure the height at which vehicles are
no longer capable of supporting themselves by aerodynamic lift, and rely for
flight on centrifugal force. To maintain level flight, weight must equal aero-
dynamic lift plus centrifugal force. The forces equalling weight in, for example,
the flight to 126,000 feet of the United States’ Bell X-2 aircraft were aerodynamic
lift 98%, centrifugal force 2/o10. The aerodynamic component reduces with the
reducing density of the air as height is gained. To maintain the equation when
the aerodynamic component has disappeared, a body at about 275,000 feet
would have to gain centrifugal force by moving at a speed of 35,000 feet per
second. This is what happens in the case of artificial satellites.
Professor Cooper has noted that the United Nations’ Ad Hoc Committee on
the Peaceful Uses of Outer Space, in its 1959. Report, indicates that the upper
limit of airspace and the lower limit of outer space do not -of necessity coincide.
Cooper would place the lower boundary of outer space at the lowest height at
which an artificial satellite may be put in orbit. In fixing the lower boundary
there, it is contended that no decision is required as to whether or not the
absolute airspace sovereignty of the subjacent State extends upwards to that
line. “The boundary line here suggested would appear to be in the area 80 to
100 miles above the earth’s surface””.
Dr. Meyer has observed that this proposal may lead to the situation where
an area would be created which would, so far as putting satellites into orbit is
concerned, be considered as outer space, but which would be lapping into the
airspace. This view of the Committee is, he thinks, problematical, because a
contiguous zone between airspace and outer space must be rejected, and on the
other hand, it would not be possible for a part of the space above the earth to
be at one time airspace and outer space, as might be the consequence of this
proposal. Such a decision would “lead to the greatest legal confusions”3 2.
Some have tried to escape, rather than solve, the question of an upper limit
to State sovereignty by determining the law applicable to a flight according
to the intentions of its directors, and not on the locus of the flight-path. The
choice of which law would regulate the flight, air law or space law, would,
from the moment of take-off, be determined by the final destination of the
3’Haley, A. G., Drait de l’Espace, 20 Revue G~nrale de l’Air, 1957, 179; this view is shared by
Heinrich, Well, Prince of Hanover, Problems in Establishing a Legal Boundary between Air Space and
Space, Proceedings of the First Colloquium on the Law of Outer Space, The Hague, 1958, 28 et seq.
3’Cooper, J. C., International Control of Outerspace, 9 Zeitschrift fdr Luftrechr, 1960, 290.
‘Mceyer, A., ibid., 300
No. 4]
.4HISTORY OF AIR LAW
vehicle itself 3. A trip through the ionosphere or higher from Paris to New York
would .be a “voyage a&ien”, whereas a trip to some point beyond the earth
would be a “voyage astronautique”, and each would be governed by its
appropriate “ensemble de ragles juridiques”2 4.
This proposal leads to a possible conflict with air law. It implies a freedom
of astronautical navigation with, as a corollary, liberty of transit through the
airspace to allow of access to and from the extra-terrestrial zone, just as
maritime law allows ships of all nations to traverse territorial waters in reaching
and leaving the high seas.3 5
It may be worth while to examine the problem from space downwards, so
to speak, rather than from the earth upwards. There may be some profit in
considering a downward extension of a freedom of outer space rather than an
upward extension of State space. This would involve the abolition of claims
to sovereignty over the airspace. While this would strike at the very foundation
of the present Conventional agreements, it has some historical basis. It would
be a return to Fauchille’s position at the beginning of this century. It would,
furthermore, be in accord with President Roosevelt’s message to the Chicago
Conference in 1944, “I hope you will not dally with the thought of creating
great blocs of closed air, thereby tracing in the sky the conditions of future
wars” 8.
More recently, the Chinese and Italian representatives at the United Nations’
Security Council have remarked that, in view of the flights of man-made satel-
lites, air sovereignty has become more or less a myth”, and Jenks has suggested
that “the present law relating to sovereignty over airspace … may be regarded
by future generations much as we regard the claims to maritime sovereignty
which were more or less successfully asserted for several hundreds of years”83 .
Danier thinks that the extinction of rights of sovereignty beyond atmospheric
space will limit the right of sovereignty over airspace, and that it will be for
the greatest good in human relations”. President Eisenhower’s “Open Skies”
proposal at the Summit Conference of July 1955 would, had it been adopted,
have been a first step in this direction.
Within limitations, some of which have been sketched above, it is generally
agreed4l that outer space is a different entity from airspace, and that somewhere
SKroe, J., p. dr. Nit 28 tmpra, 228.
34Homburg, R., Dr*& A mwiu. et Dit Abes, 21 Revue Ganrale de FAir, 1958, 15, 16.
“6KroclI, J., ep. eft. Note 28 sav, 235.
sPoceedings of the Ibntwioal Civil Aviuim
37Wright, .Q., Legal Aspects of the U-2 Ixciwt,
ofwrc, Washington, D. C., Vol. 1, 43.
54 Anmican Journal of International Law, No. 4
Oct. 1960, 842.
$Jenks, C. W., q. cit. No, 14 srBa, 103.
3″Danier, E., op. cit. Nt 24, 424.
4OPro, Goedhuis, Rapprtur, I.L.A. New York University Report, 4; antra, White, Chief of Staff,
U.S.A.F., Air and Space are Tdivisibhl, Air’Force Magazine, Mar. 1958, 41, cited by Jessup and
Taubenfeld, op. cit. Note 3 supra, 209.
McGILL LAW JOURNAL
[Vrol. 7
there lies a dividing line between the two. Most writers agree that “at some
point there is a limit to the extension of terrestrial sovereignties, and that in
due. course practical international necessities will lead to its definition”41.
Apart from this general agreement in the principle, there is the widest variation
in the proposed application, and for every suggested legal opinion there appears
to be some astronomical opinion to back it up.
Activities in Outer Space
Outer space is an area utilised by artificial satellites intended to advance
scientific knowledge, by military missiles, and by interplanetary craft. These
diverse types of vehicle provoke equally diverse problems.
No public objection has until now been made to the overflight of national
territory by artificial satellites 42. While some of the satellites launched into
orbit have been intended to extend the range of telephonic and radio communica-
tions, others have been aimed at supplying weather reports and televised pictures
of meteorological conditions in the areas surrounding the earth. The United
States’ TIROS satellite, though designed to gather information concerning
cloud formations, does transmit features from the surface, and it is probable
that the SAMOS satellite is much more powerful43. These powers of observation
give to even the most innocent of meteorological satellites a quasi-military
character, adthere is little reason to suppose that all satellites of this type are
intended to be innocent. The satellite TIROS “may be said to have opened
the fateful era of surveillance from outer space”44.
The U.S.S.R. has made no objection to the launching of any satellite, even
of those which cross Soviet territory, and a United States’ Deputy Secretary of
Defense (Quarles) has stated that his country would have no basis for objection
if the Soviet Union put into orbit in outer space i reconnaissance satellite
capable of observing the United States 5.
This statement on behalf of the United States exceeds explicitly the
position which is no more than implicit in the Soviet Union’s silence. The
U.S.S.R., in making no objections, may either have adopted a view similar to
Quarles’, or it may in fact have objections which -have remained unvoiced for
some good reason. This would be in line with the position taken with regard
to the United States’ overflights of Soviet territory by U-2 aircraft. Although
these reconnaissance flights had been carried on since 1956, the first public
notice of objection came with Mr. Khruschev’s announcement of May 5th,
1960, that one of these aircraft had been brought down in Russia.
4″JessUp and Taubenfeld, ibd.
0 Although on Oct. 18th, 1957, Moscow Radio reported that three Swedish newspapers had
charged that artificial satellites violated air sovereignty; vide Space Law, 506.
“”Time”, Feb. 10th, 1961, 41.
‘4 Bersford, S. M., op. cit. Note 18, 107.
“lbid., Note 25.
No. 4]
HISTORY OF AIR LAW
If the Soviet view be in fact in accord with that put forward for the United
States, then both of these States appear to have taken up an anomalous position.
While they object effectively to reconnaissance overflights by aircraft in air-
space, they do not object to what may well become equally efficient overflights
by space-craft in outer space. If it were possible to place a 40-inch telescope in
a satellite at 500 miles altitude, it would be able, on a clear day, to detect and
photograph objects on earth having a diameter of two feet”. This apparent
self-contradiction in the national positions may be no more than a result of
the uncertainty with which States regard their rights in space, or it may well
be a recognition of their inability to prevent such surveillance from outer
space. If the latter alternative be the correct one, then this would tend to
prove that there is an upper boundary to State sovereignty in fact as well as
in theory, since sovereignty may not be claimed where it is impossible to
exercise it.
Military missiles have introduced some of the acrimonies of terrestrial
politics to the realms of space. In 1958 the U.S.S.R. proposed to the United
Nations that outer space should not be used for military purposes, and that
the rockets sent into space should be in relation to an international programme.
With this was coupled a proposal that foreign military bases in the territory
of States should be liquidated. The obligations so created would have had to
be accepted simultaneously. This would have destroyed the fabric of N.A.T.O.
and so of the groundwork of Western defensive strategy. The United States
wished to see the questions separated, thus expressing an opinion in diametric
opposition to that of the U.S.S.R. 47
Rockets have been placed in solar orbit and successfully directed to the
moon, but man has not yet, unless unreportedly, ventured into space. The
time cannot be far distant, nevertheless, when efforts will be made to launch a
manned satellite. During 1960 the United States alone budgeted $70 million
for manned spaceflight investigations”8 , and it is scarcely likely that the U.S.S.R.
will lag far behind.
When once a manned spaceflight has been accomplished, it will, we may
suppose, be but a matter of time until men are placed on other planets, and
this achievement will lead to problems of jurisdiction and sovereignty which
may dwarf in seriousness the present problems of an upper limit to the area in
which national sovereignty may be claimed. These jurisdictional problems
will be transferred to the areas through which the men will travel, and on
which they will alight.
16″Timc”, Feb. 10th, 1961, 41.
47Gahna, A., For Equal Colahoration in the Peaceful Use of Cosmic Space, Izvestia, Sept. 17th, 1958, 5;
Space Law, 515.
48SpacefliAkt, British Interplanetary Society, Oct. 1960, 242.
McGILL LAW JOURNAL
[Vol, 7
Legal Status of Outer Space
First among the problems encountered in space will be the legal status
of space itself. Two suggestions, have been popularly supported by learned
writers. One is that space will be res omnium communis49, on the analogy of the
high seas. There will be freedom of transit through it, and, being extra com-
mercium, it will be incapable cf appropriation. The other is that space will be
res nullius , capable of appropriation; this may be distinguished from the types
of claim, considered above, whose foundation is a vertical projection of State
sovereignty. In the present case the claim would be based on the presence in
space of the property and agents of some terrestrial State.
Amongst those writers who hold that space is res omnium communis, it
appears to be thought sometimes that it is in some way wrong for a State to
claim sovereignty over space, and that therefore space is a common good,
“‘le patrimoine commun de MHumanit”‘ 51.
It is rather difficult to see why this should be so. On the grounds of practi-
cability, if it be impossible for one powerful State to extend its sovereignty into
space, it would seem equally impossible for a consortium of two or ten to do so.
Where distances are measured in terms of light years rather than of length,
the relative strengths of one nation or many seem much the same.
If such grounds be ignored, the proposed title of the United Nations to
outer space must be based on some inherent moral right. This right is, pre-
sumably, the premise on which argument is founded, but it should be tested-
before it is used. It has been postulated that life exists beyond our planet 2, and
it has certainly not been proved that intelligent life does not exist. It may
therefore be somewhat ambitious to assert that space is the patrimony of
Humanity. At the very least, such a claim by puny man lacks humility.
This is not to say that the control of human activities in space should not
be “regarded as a world responsibility”” 3 , although there may be grounds for
objecting to this also at the present time (vide infra). A claim to control the
activities of man in space falls far short of a claim to rights of property over
space.
While the proponents of the res omnium communis view approximate liberty
of passage in space to the freedom of movement on the high seas, this is not
done without reservation. Questions of defence arise, together with rights of
self-protection in international law.
“International Law Association, Hamburg, 1960, 9 Zeitschrift ffir Luftrecht, 1960; Mcyer, A.,
ibid., 311; Cooper, J. C., ibid., 292; Kroell, J., op. cit. Note 28 jupra; Galina, Zadorozhnyi, Neumann,
cited byJessup and Taubenfeld, op. cit. Note 3 supra, 219, Note 94.
“For discussion vide Jessup and Taubenfeld, ibid., 209 et eq.
BlKrocll, J., op. cit., Note 28 .nipra, 233.
62Haley, A. G., Space Law and Metalaw: A Synoptic View, Space Law, 150 t teq.
No. 4]
HISTORY OF AIR LAW
Professor Lissitzyn, in his penetrating analysis54 of some statements by
Mr. Loftus Becker of the United States’ Department of State, detects the
implication that space is res nullius, over which certain acts followed by certain
claims may establish national sovereignty. Becker claimed that the United
States had engaged in certain activities in outer space which gave to it certain
rights as distinguished from States which had not so acted, although the
United States had made no actual claims, based on these activities, to sovereign-
ty. This was not to be interpreted, however, as conceding that the United
States did not have the rights which would found such a claim.
Here Lissitzyn discovers an inconsistency between Becker’s suggested
extension, by vertical projection in the airspace, of national sovereignty to an
altitude of 10,000 miles (vide supra), and the claim that the activities mentioned
might found a claim to sovereignty in outer space, when in fact there was no
information to suggest that the United States’ activities had been carried out
above 10,000 miles. That is, if the activities below 10,000 miles gave rights in
outer space, then the claim that national airspace extends to that height must
fall.
In any case, he asks, what extent of space can be claimed, and where would
lie its boundary with such space as the U.S.S.R. might claim on the basis of
similar activities? Kroell holds that any occupation of outer space by a satellite
can have none but a precarious and transient character”. The basis of occupa-
tion is effective control, and “there is no assurance that anything comparable
to ‘effective control’ over a part of terrestrial space can be established in outer
space”56.
It may be argued, then, in favour of the res omnium commanis view that
although space does not automatically have the same nature as the high seas, it
will in the end, from purely practical causes, be held in a similar regard.
Freedom of navigation on the high seas is the result not of some kind of inter-
national morality, but of the practical impossibility of keeping the seas private.
or subject to a national jurisdiction. Quite apart from any assumed rights or
wrongs, the same considerations may very well lead to the same condition in
outer space.
Legal Status of Satellites
Concerning the status .of artificial satellites and space-craft themselves, it
has bieen suggested that the solution will be found with reference to the status
given to the space in which they are moving.57 In, space considered to be
beyond any sovereignty, the satellite may be regarded by the launching State
“Jenks, C. W., op. cit. Note 14 supra, 107, 108.
“Lissitzyn, 0. J., op. cit. Note 13 supra, 129.
5 Krocll, J., op. cit. Note 28 jupra, 234.
‘Lissitzyn, 0. J., op. cit. Note 13 supra, 131.
‘2Danicr, E., and Saporta, M., op. cit. Note 7 supra, 302.
McGILL LAW JOURNAL
[Vol. 7
as a detached part of its national territory, subject to national law, whether
it be governable or not, manned or unmanned.
This opinion is extended by.Galina 58 , who thinks that even if these devices
fall to earth outside the territory of the State which launched them, they
remain the property of the State, and should be returned to it. Such a claim
would have a close relationship with damage on the surface caused by the
falling satellite. It may be doubted if an early definition of the legal status of
satellites and space-craft will be reached: the legal status of an aircraft has still,
after some sixty years of flight, to be accurately defined.
Legal Status of Stellar Bodies
The proposed legal status of the moon and other stellar bodies is, like space
itself, either res omnium communis or res nullius.
The first of these has been supported by, amongst other authorities, Dr.
Meyer”9 , and by the spokesmen for various small nations. These latter have
termed the appropriation of space or the heavenly bodies impossible, or at
least “highly improper
“The largest group” (of writers) “insists that
space and the heavenly bodies are not subject to appropriation or control by
individual national groups, but argues that this res extra commercium must be
subject to some international control to prevent misuse of the areas in question
and danger and damage to other persons or nations” 1 .
6 .
On the other hand, while it is allowed that a United Nations’ jurisdiction
over the moon and other planets would avoid rival appropriations of territory
there, it has been thought that, failing such jurisdiction, “title to territory
would have to be determined by applying the usual rules concerning discovery
and occupation with any necessary adaptations’ ’62. The res nullius theory,
therefore, may be tenable.
As the present resources of the earth dwindle, so will those of other planets
increase in importance. If unoccupied territory in planets may be nationally
appropriated, the natural resources of such territory would be governed by the
national law of the country concerned.
If the territory were governed by an international regime, international rules
would have to be formulated. Jenks finds analogies for such rules in the land
claims regulations annexed to the Treaty of February 9th, 1920, concerning the
Archipelago of Spitzbergen, or in the mining regulations issued by Norway
in pursuance of that Treaty after consultation with the other parties.
While he thinks it desirable that title to the natural resources of other planets
be regarded as vested in the United Nations, and that any exploitation should
58Galina, A., op. cit. Note 2 supra, 514.
“Meyer, A., op. cit. Note 29 supra.
COU.N. Docs. A/C.1I/SR 986 at 9; 991 at 6; 992 at 3; cited by Jessup and Taubenfeld, op. cit. Note 3
supra, 210.
61lbid.
61Jcnks, C. W., op. cit. Note 14 rupra, 110.
No. 4]
HISTORY OF AIR LAW
be on the basis of United Nations’ concessions, leases, or licences, he admits
of the possibility that there may be created on the moon a system under which
some territory would be nationally and some internationally appropriated.
Normally when territory is acquired by discovery and occupation, it must
“really be taken into possession by the occupying State”, and this can be done
only by “a settlement on the territory, accompanied by some formal act which
announces both that the territory has been taken possession of,-and that the
possessor intends to keep it under his sovereignty”. Further, the possessor
must “establish some kind of administration” to show that he really does
“In cases where the nature of a region would
govern the new territory’.
make complete occupation virtually impossible”, however, “the International
Court ofJustice… has not insisted on the rigid fulfilment of this condition””4.
If it is decided in the future that stars are res xillius, consideration will
have to be given to the degree of elasticity with which the rules of occupation
will be applied.
Surface Damage Caused by Space-Craft
Some of the problems arising from space flight have more immediate im-
portance, or more immediate effect, than the legal status of stars or of space.
All due consideration was doubtless given to the cable received by a President
of the United States of America at a time when it was proposed to send a
rocket to the moon. This cable informed the President that the sender had
registered a claim to part of the moon, and would hold the United States’
Government responsible for any damage caused to his property by the rocket”.
It is to be hoped that rather more attention was given to the question of damage
on the surface of the earth rather than of the moon. While the Holguin Cowl$
may now be unwept and unsung, its death drew attention to this very real
danger. Space-craft have been destroyed in flight both by design and by their
becoming spent and sinking into the more dense layers of the atmosphere
where their speed created such frictional heat that they disintegrated.
The grounds of liability will vary under different legal systems. Those
possible under the Anglo-American regime – no liability, liability without
fault, and liability for negligence – have been listed by Beresford 67, who
thinks it probable that the development of the law of liability for damage
caused by space-craft will be analogous to that of the similar law for aircraft.
At first a strict regime will apply, demanding liability without fault. As
‘3Oppeaheim-Lauterpacht, 8th Ed., 1955, Vol. 1, 557, 558.
“Lauterpachr, The Dvwehpmext of Iternatioul Law by the Lrternatioual C wt, London, 1958, 214
et uqe.; cited by Goedhuis, tic. cit. Note 40.
“Related by Becker, JAG Journal, Feb. 1959; see Jessup and Taubenfeld, #,a. cit. Note 3 *pnre, 241.
“”Time”, Dec. 19th, 1960, 30; Surface damage was alleged to have been caused by a fragment of
a U.S. rocket. No claim was made.
Stockholm, 16th Aug., 1960.
81Beresford, S. M., Remarks, 11th Annual Congress of the International Astronautical Federation,
McGILL LAW JOURNAL
[Vol. 7
technology develops, damage due to space-craft, unaccompanied by negligence,
will become rare. Finally, with the evolution ‘of safety requirements and
high standards of operation, cases may come to be decided according to the
general rules of negligence.
In view of the great risks and uncertainty involved, it may be impossible to
insure against claims, .and-ne -suggestion has been that all interested States
contribute to an international guaranty funa which would pay for all damage
(excluding intentional damage) caused by satellites68 .
This suggestion would go far towards solving the jurisdictional difficulties
foreseen by Beresford, together with the disclaimerg of liability which might
arise from sovereign immunity or from “discretionary function or duty” pro-
visions, such as are contained in’the United States’ Federal Tort Claims Act 9 .
In any event, there is wide agreement that space-craft should be identifiable,
with perhaps a system of international registration, so that it will be possible
to detect the author of damage caused on the surface.
The question has been the subject of at least some international agreement.
The United Nations’ Ad Hoc Committee on the Peaceful Uses of Outer Space
has agreed to the United States’ proposal that the International Court of
Justice should be given jurisdiction to decide disputes between States as to
liability for injury or damage caused by space vehicles 7.
Haley has sought rather to avoid damage than to allocate responsibility
after the event 71. The earlier satellites broke up on re-entry into the atmo-
sphere, but as these vehicles grow larger and.more complex, so will the quantity
of metal which may be scattered over the earth’s surface. It is essential that
the launching State control its satellites so that they fall to earth in a clear area.
When he wrote, Haley had seen ‘no reference to this vital problem in any
of the writings of the natural or social scientists”. The two main problems
he sees are the necessity of controlling the placement. of the re-entering space-
craft, and the necessity of being able to rid outer space of objects which would
endanger future space navigation.
A further problem is inherent in the transmission of radio signals from
satellites. Some of these will be made for an indeterminable time on frequencies
which have already been allocated to other users by the International Tele-
communications Union.
“One must understand that the radio spectrum is
very limited, and that the frequencies involved are extremely valuable, and
that they may be quite essential to some other services” 72. There must there-
fore be a radio-command to silence these satellite-borne transmitters.
“tde Rode-Verschoor, I.H.Ph., The Responsibility of the States for Damabe Caused yj the Launched
Space-Bodies, Space Law, 434.
$’Section 2680, Title 28, U.S. Code.
0Report of the Legal Committee, U.N. Doc. No. A/AC.98/2 (June 12th, 1959); Jessup and
Taubenfeld, op. cit. Note 3 supra, 217.
I1Haley, A. G., Law of Outer Spart-Radio Controls Urgently Needed, Space Law, 458 tt seq.
“Ibid.
No. 4]
HISTORY OF AIR LAW
Proposals for Internationa” Agreements
The many conflicts of interest provoked by space flight must at some time
be resolved, but there has been no international agreement on how this is to be
achieved. The proposals made range from the creation of a widely applicable
international convention73 to a policy of “wait and see”, seeking specific
decisions on specific questions as they arise74.
The International Law Association at its Hamburg Conference in August,
1960, considered that in relation to outer space the most important guiding
principles which can presently be formulated are that “Outer space and celestial
bodies should be utilised only for peaceful purposes to the greatest common
. .”, and that “Outer space may not be subject to the
profit of all mankind .
sovereignty or other exclusive rights of any State”. It recommended the con-
clusion of an international agreement embodying and affirming these principles,
and directed that its Resolution be submitted to the United Nations.
The Inter-American Bar Association, at its Bogota Conference in February,
1961, approved a Resolution 76 in similar vein, though in greaier detail. This
dealt with, inter alia, the division of space into zones of national and extra-
national sovereignty (with a neutral zone which is reminiscent of Professor
Cooper’s old “zone theory”); the legal status of outer space and the inter-
planetary system (res communis); absolute liability for damage caused by space
craft, and the creation of an international insurance fund for compensation for
losses resulting from such damage; the international policing of outer space;
and the outlawing of war in space. This Resolution also is to be submitted
to the United Nations.
National spokesmen, however, tend to be very circumspect in their remarks
on this matter. In the United States, Becker favours the development of a
“common law” of space, and comments that even in States where a Civil Law
r~gime is in effect, it is recognised that a body of law can be created only upon
a greater body of ascertained fact. He sees danger in transmuting a body of law
based on one set of facts (i.e. maritime law) into another body of law (i.e.
space law) in respect of which the basic factual background is as yet very
uncertain. The position of the United States is that the law of space should be
correlated to the facts of space, and that there is much more to be learned about
these facts before it will be possible to define the applicable legal principles. 76
This outlook is reinforced by the Report of the American Bar Foundation
prepared for the United States’ National Aeronautics and Space Administration.
While agreeing that the use of space should be subject to the rule of law, the
?’Danier, E., and Saporta, M., op. cit. Note 7 jupra, 303; Resolution of the I.L.A. Hamburg, le. ci.
Note 49 supra; Meyer, A., ibid.; Cooper, op. cit. Note 16 supra; Jenks, C. W., ep. dr. Note 14 saipm;
PNpin, E., Legal Problms of the Sptnik, 4 McGill Law Journal, 1957.
T McDougal, M. S., and Lipson, L., op. cit. Note 7 supra; Schachter, 0., loc. cit. Note 15 supra.
76XII Conference, Inter-American Bar Association, Bogota, Colombia, Feb. 3rd, 1961.
76Becker, L., op. cit. Note 25 stura.
McGILL LAW JOURNAL
(Vol. 7
Rapporteurs77 do not admit that it therefore follows that the time has come
to draw up a code of rules for the use of space. “The rule of law”, they say,
“is neither dependent on nor assured by comprehensive codification; which may
help or hinder, depending on circumstances”.
Like Becker, the Rapportcurs mention the paucity of knowledge available
on the actual or prospective uses of outer space, and the varieties of technical,
“In this situation”,
political, and legal considerations which may arise.
therefore, “an effort to agree on any comprehensive code might either come to
naught, or yield a small set of pious maxims of extreme generality, or produce
an unworkable regime that would be all the more dangerous for giving the
temporary illusion of certainty”. 78
It seems that the professional anxiety of lawyers to have a determination of
the law of space must be tempered by political realities. There is a reluctance
on the part of the nations to commit themselves to a definite code which, once
made, may well prove difficult to amend to conform with changing circum-
stances. The case by case method has the imprimatur of the June, 1959, report
of the United Nations’ Ad Hoc Committee on the Peaceful Uses of Outer Space.79
Conclusion
People who lived near Anti-Aircraft batteries used to complain that what-
ever went up had to come down; but in our day some at least of the things which
go up, stay up. So far from reducing the dangers of the human situation, this
feat has multiplied them, and there is every indication that scientific effort in
space will be both continued and intensified.
The law of the sea was granted centuries in which to develop in measure
with the progress in maritime navigation. The advances of aviation since
1903, and of space flight since 1957, have been at such a rate as to indicate that
the leisured pace of the growth of sea law will be denied to space law. The
development of space law may become extremely urgent due to the rapidity
of technological progress.
The constant flow of literature upon the subject, and the importance which
it is given in the highest legal circles of government, show that it is far from
being neglected. The fertility and quality of thought exhibited by the many
writers concerned with this aspect of law indicate that there are some grounds
for optimism. Dr. Wernher von Braun, the distinguished rocket engineer,
has given what is perhaps the soundest basis for the law of space:–“We have
developed the rockets for the purpose of sending them to the planets, and not
for the purpose of destroying our own”. so
7TProfessor Katzenbach of Chicago University; Professor Lipson of Yale University.
7″Chicago Daily Tribune; New York Times; Dec. 5th, 1960.
79Loc. cit. Note 70 supra.
3’Cited by Meyer, A., I.L.A. Hamburg, 1960, loc. cit. Note 49.
