THE LEGAL IMPLICATIONS OF McGILL’S HIGH ALTITUDE
RESEARCH PROJECT
Roy Skwang Lee *
From January 25 to February 1, 1963, the first series of Martlet
I vehicles was successfully launched by McGill University to an
altitude of some fifty miles.’ The launching method involving the
shooting of a projectile through a 16.4″ 140-ton gun marked a spec-
tacular innovation in the expanding art of space exploration. It will
be recalled that the idea of launching spacecraft with gun power was
envisaged by Jules Verne in his famous novel “De La Terre A La
Lune” written in 1865.2 While the Martlets are not designed to reach
the Moon, they are, no doubt, a step toward the fulfilment of Verne’s
anticipation.
“Martlet” is the code name for a series of vehicles employed in
the High Altitude Research Project (HARP) of McGill University, a
program for the study of atmospheric composition at altitudes beyond
125 miles by using non-assisted or rocket-assisted vehicles. 3 The
launching facility employed is a vertical firing gun, a 16.4″ caliber
smooth-bore naval rifle.4 The gun is capable of sending payloads
weighing up to approximately 500 lb. to an altitude of 60 miles, and
200 lb. payloads to about 120 miles.5 It is intended eventually to
propel rocket-assisted vehicles up to several thousand miles. In fact
Martlet IIIA already has a rocket motor and is capable of reaching
L.L.B. Candidate for L.L.M. Institute of Air and Space Law, McGill Univer-
sity. The author wishes to thank Professor I. A. Vlasic for helpful advice.
Professor Vlasic bears no responsability for the opinions expressed by the author.
1 Time, New York, February 8, 1963, p. 9. Project HARP (High Altitude Re-
search Program), Description and Status, Report Rep. 62-5, prepared by the
staff of the Department of Mechanical Engineering, McGill University, Montreal,
1962. For a comprehensive survey both of governmental and private space re-
search activities see COSPAR Information Bulletin, No. 16, Dec. 1963, special
issue.
2 Encyclopedia Britannica, 14th ed. vol. 23, p. 86.
3 Project HARP, op. cit. supra note 1, p. 2-3.
4 These guns were manufactured in 1921 and were used for coastal defense
purposes in the United States. In late 1961 McGill University undertook the
program, and the installation of the gun was completed by January 1963. The
assembly of the gun consists of a 68 foot barrel-chamber. Id. p. 11-12.
5Id. p. 4.
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LEGAL IMPLICATIONS OF McGILL H.A.R.P.
159
an altitude of 300 miles.6 McGill is planning to develop two-stage
Martlet IV vehicles with capacity of placing a 50 lb. payload in orbit.7
Martlet I, II and III vehicles were designed and manufactured by
Canadian companies under a direct contract with McGill University,”
and were then shipped to the launching base on the island of Bar-
bados. While sponsored by McGill University,9 the project enjoys the
co-operation and assistance of the United States Army and local
Government of Barbados. Two 140 ton guns, mounts and back-up
devices, transportation of equipment, technical support, participation,
the major financial support of the payload, the manufacturing of the
vehicles, and range firing cost, have all been provided by the United
States. 10 The Government of Barbados has contributed a launching
site on the south-east shore of the island,” as well as labour and cer-
tain equipment for the operation.
The Canadian Government has not yet joined the program in any
capacity. 12 As far as it could be ascertained, it has no official contact
with the Governments of Barbados, the United States, or the United
Kingdom on the subject. Informal contact was made with the Premier
of Barbados by the Dean of the McGill University Faculty of Engi-
neering’ 3 who received authorization from the board of Governors
G Project HARP, McGill University, Report on the First Twelve Firings and
Status as of July S0, 1963, Report 63-5. November 1963, p. 1-2.
7 It would be a 3000 lb. vehicle some 14 ft. long with a 16.4 in. diameter
equipped with flip-out fins and a solid-state guidance system.
s Martlet I vehicles were built by Aviation Electric Ltd. Montreal. They were
designed as first generation gas seeding vehicles for the 100 km altitude range.
Martlet II vehicles were manufactured by Industrial Machining Co. and Hereons
Co. and tested in June 1963, id. p. 9-11. Martlet III vehicles were built by Cana-
dian Arsenals Ltd. and scheduled for September 1963 and the early months of
1964.
9 The launching and control over the telemetry are all under the operation of
McGill University, independent from the United States or Barbados authorities.
10 For details see note 1, Project HARP, p. i-iii. Report of the 1963 (supra
note 4) acknowledged that, “The staff of McGill University working on Project
HARP are deeply indebted to the various agencies of the United States Army
who provided the major proportion of the financing, material, logistic support
and technical advice essential to the success of the project.” A reliable source
that the financing support has reached a half million dollars.
disclosed
“1 Barbados, Island, Atlantic Ocean. Located about 100 miles east of St. Vin-
cent at 5937 ‘ West Longitude, 134′ North Latitude. The land has a maximum
length of 21 miles and an area of 166 square miles.
12 Although the inspection Services, Department of National Defense, assisted
in some phases of the ballistic and rocket development program.
]^ Exchanges of letters, June 1961 to July 1961, between Premier of Barbados,
Perm. Secretary, Ministry of Agriculture, Lands, Fisheries and Public Buildings
and Dean Mordell. A formal Order-in-Council covered HARP under the general
provision.
160
McGILL LAW JOURNAL
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at McGill (summer 1961) for the undertaking. The Governor General
of Barbados was informed of the United States Army participation
and no objections were raised. The relationship between McGill and
the United States Army is regulated by a contract under which the
Army has access to all research information obtained, but has no
direct control over the project. 14 The title to the gun was transferred
to the University four days before the first launching and was later
registered with and licensed by the local Government of Barbados.1
A considerable amount of insurance was obtained for the gun and
subsequently for each gun-shot.16
The vehicles launched and the actual launchings are not registered
with any State or international organization and the vehicles them-
selves have no identification markings of any kind. However, each
gun bears three crests: those of McGill University, the United States
Army Research Office, and the United States Ballistic Research La-
ranging from 20 miles to 100 miles,
boratories. The impact area –
in accordance with different launching purposes –
is located on the
high seas near Barbados. 17 Before each launching, ships and aircraft
are notified of the location of the danger area, which is kept under
constant surveillance by a McGill University radar unit. 8
Even though it involves a relatively small investment in terms of
both equipment and man power, Martlet has already proved its worth,
both economically 19 and technically, 20 for high altitude research. The
14A contract made through the Canadian Commercial Corporation.
15 About January 21, 1963.
16 It is insured by the Lloyds of London for 8,000 dollars per gun-shot.
17 Trajectories of Martlet IIA firing number 10-11 and 12 is given here:
Shot Gun elevation
10
11
12
830
860
87.50
Altitude
209,000 ft
276,000 ft
340,000 ft
Impact area
89,000 ft
74,000 ft
51,500 ft
Time of flight
230 sec.
261 sec.
289 sec.
op. cit. supra note 6. The June 19 test shot the vehicle to 34,000 ft altitude with
a muzzle elevation 80 degrees and impacted 100 miles away.
Is The local newspapers made public the danger areas one day before the
launching. During the launchings local police officers use their motor boat to
survey the areas and keep fishing boats off the areas. The air is checked by the
airport control tower which is closely contacted with McGill University radar
unit.
19 In the United States the cost of boosting a package by rocket to an altitude
below 800 km is $1.25 per payload pound per mile. However, in the case of
Martlet it costs only 21 cents. The technique can be employed to send a probe
to an altitude of 150 miles with a payload of 50 lb. for only $1,500 –
far cheaper
than current probes.
20 The major technical features include very small dispersion on flight altitude,
so that a specified and prescribed area can be studied and combined with a small
impact area. op. cit supra note 1, p. 16.
No. 2]
LEGAL IMPLICATIONS OF McGILL H.A.R.P.
161
project has thus broadened the perspectives of non-governmental
space activities, and will likely stimulate an increase in activities of
this type. Smaller nations without large facilities may also be able
to orbit satellites using the inexpensive gun-launch technique.
The Hypersonic Propulsion Laboratory of McGill University has
suggested that a study of the “Gun Launched Hypersonic Ramjet”
could by made by using the gun to launch hypersonic ramjet vehicles
at Mach numbers ranging from 3.3 to 7.21 It is hoped that these
vehicles will be able to operate at an altitude of 300 miles with a
down range impact area at 1250 to 1400 miles from launching site
on the high seas. 22 In fact, since the gun can be employed in other
types of scientific study, many organizations may be interested in its
potential uses. 23
The Martlet experiments are in many respects unique, not only
from the technical standpoint, but also from the legal point of view.
First, the project differs from the joint space undertakings such as
Ariel 24 and Alouette 25 where the Government of the United States
provided the launching facilities and the Governments of the United
Kingdom and Canada the satellites.26 Project HARP is conducted by a
private entity (McGill University) but it also involves to an important
extent the Government of Barbados, and the United States Army
Research Office (USARO). McGill University, as a Canadian legal
person, is always, at least in theory, subject to the control of Canada.
Barbados is a territory of Great Britain, and the USARO is an
American government agency. Therefore, from the standpoint of
international law, three States are involved, namely Canada, the
United States, and the United Kingdom.
Secondly, McGill University is preparing for 300 “space shots” –
three per day for one hundred days firing throughout the early
months of 1964. Although these experiments involve flights of short
duration, because of their frequency there is a high possibility of
causing damage and/or injury in the air-space or on the surface of
21 Molder, Salter, and Valenti, Performance Study Gun Launched Hypersonic
Ramjets, Report 63-4, Hypersonic Propulsion Laboratory, Department of Me-
chanical Engineering, McGill University, Montreal, June 1963, p. 1-4.
22 Id. p. 21 and figure 23 given in that page.
23 The Institute of Aerophysics of the University of Toronto is an example of
its potential user.
24 First medium-scale enterprisory activity between the Great Britain and the
United States.
23 Joint enterprise between the United States and Canada.
26 See Seventh Semi-annual Report to Congress, NASA, January 1 – June 30,
1962. Washington 1962, pp. 47, 116. See also McDougal, Lasswell, Vlasic, Law
and Public Order in Space, 1963, p. 8 fn. 12 and p. 877.
McGILL LAW JOURNAL
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adjacent sea. Therefore, the danger is potentially greater than for
high altitude activities such as launching of rockets, missiles and
satellites.
Thirdly, since the use of vertical firing guns for high altitude
exploration is a novelty without precedent, still largely unknown to
the public, scant attention has so far been given to its legal implica-
tions. It is pertinent to note, in this connection, that the high altitude
experiments involving missiles and rockets generally are carried out
within a State territory, or on distant high seas; they do not, there-
fore, seriously interfere with the activities of other nations. By con-
trast, Martlet experiments are carried out in the coastal areas which
are frequented by aircraft and ships. If this technique becomes widely
adopted, such experiments may create extensive interference with
coastal air and sea transportation. This multiple-launching situation
can be described as a “traffic jam”. Although Martlets so far
launched would not qualify as spacecraft, Martlet IV, soon to be
launched, will have orbital capability and for this reason the experi-
ments should be considered in the light of the legal principles govern-
ing the activities of States in the exploration and use of outer space.
The practice pursued by McGill University thus raises certain
important legal questions which may conveniently be examined under
the following headings:
(1) Lawfulness of Martlets’ activities in the context of the “pub-
lic order” of the high seas;
(2) Responsibility and liability for injuries caused by Martlets;
(3) Registration and supervision of Martlets.
(1) Lawfulness of Martlets’ Activities in the Context of the “Public
Order” of the High Seas
As all the Martlets are designed for impact on the high seas, it is
pertinent to ask whether or not this practice falls within the scope
of activities considered permissible by international law. A companion
question relates to the lawfulness of closing temporarily certain areas
of the high seas for purposes connected with the launching and
recovery of Martlets.
According to Article 2 of the Geneva Convention on the High
Seas of 1958, all States are authorized to fly over the high seas and
to use them for navigation, fishing, the laying of submarine cables
and pipelines.2 7 In addition to these, Article 2 of the Geneva Conven-
27 Convention on the High Seas, U.N. Doe. A/Conf. 13/38 pp. 135-139 (Doc.
A/Conf. 13/L. 53). Conference on the Law of the Seas, 1958, held in Geneva.
No. 2]
LEGAL IMPLICATIONS OF McGILL H.A.R.P.
163
tion permits also the exercise of other freedoms “recognized by the
general principles of international law”, stipulating, however, that
all these freedoms should be exercised with reasonable regard to the
interests of other States in their exercise of the freedom of the high
seas. 28 In fact States have traditionally used the high seas for pur-
poses such as naval gunnery practices and manoeuvres, and more
recently for nuclear tests 29 carried on under the claim that “that
which is not expressly prohibited is permitted”, 0 As a result of such
exclusive uses, vast oceanic areas have been declared dangerous, 31 and
temporarily closed, both for the security of the States conducting exer-
cises and for the general safety. 32 Space activities have also extended
from land to the high seas for purposes of testing, recovery and
launching of spacecraft. Vessels and aircraft were warned not to ap-
proach designated areas. Some of these areas were as wide as 40,000
square miles. 33
The present impact area of Martlets, ranging from 20 miles to
100 miles, is situated on the high seas off the coast of Barbados.
Appropriate preventive measures have been taken before each laun-
ching and have been very well observed.34 Moreover, there is no
complaint so far.
The temporary exclusive use of the high seas for nuclear tests
and gunnery practices, apparently permissible under international
law,35 is certainly more serious an exercise of the freedom of the high
seas than temporary closure for the launching and recovery of space-
craft, an activity clearly for peaceful purposes and for the benefit of
all mankind. The principle of freedom of the high seas would be
unnecessarily restricted if it were interpreted so narrowly that even
2s Ibid.
29 See McDougal and Associates, Studies in World Public Order, 1960, pp. 766,
Cf. Margolis, The Hydrogen Bomb Experiments and International Law, (1954-55)
64 Yale L.J. 629, (1955).
30 The Lotus (1927) Series A/10, pp. 18, 28, 31. L. C. Green, The Geneva Con-
ventions and the Freedom of the Seas, 12 Current Legal Problems, p. 242, 1959.
31 Op. cit supra note 29, p. 768. The United States and the United Kingdom
have declared considerable areas in the Pacific Ocean as temporary danger zones.
See also Schwarzenberger, The Legality of Nuclear Weapons, 11 Current Legal
Problems, p. 288, 1958.
32 It may be argued that this is not exclusive use, for States never have the
intention of appropriating those areas. However, it is doubtful if other States
can share those areas with the claimant States, because some have become
polluted.
33 McDougal, Lasswell, Vlasic, Law and Public Order in Space, 1963, p. 298-
299.
34 Supra note 18.
35 McDougall and Burke, The Public Order of the Oceans, Yale (1962), pp.
771. 772. z
McGILL LAW JOURNAL
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the temporary closing of a small area on the high seas, for purpose
of scientific space research, would be deemed unlawful. In con-
sequence, it may be stated that the Martlet experiments, as long as
adequate safety measures have been taken for the protection of third
parties, represent a lawful use of the high seas. However, should this
kind of temporary use become more frequent so as to cause serious
interference with the freedom of navigation and fishing on the high
seas, it is submitted that the legality of each particular activity
should then be judged in the light of the principle of reasonableness.,”
(2) Responsibility and Liability for Martlets
Although the Martlet program involves peaceful scientific re-
search, it is not without hazards. Accidents might occur outside of
the island of Barbados, on and above the high seas, or elsewhere. If
damage does result, the question arises as to who bears the respon-
sibility and the nature and extent of liability. It seems pertinent to
examine these issues from the standpoint both of the relevant judicial
decisions, such as the Trail Smelter Arbitration and Corfu Channel
cases, and of the recent unanimously adopted United Nations Declara-
tion of Legal Principles Governing the Activities of States in the
Exploration and Use of Outer Space.3 7
Of particular relevance to the problem are decisions in the Trail
Smelter and Corfu Channel cases. In the Trail Smelter Arbitration
case, it was expressly declared that “… under the principles of in-
ternational law, as well as of the law of the United States, no State
has the right to use or permit the use of its territory in such a
manner as to cause injury by fumes in or to the territory of another
or properties or persons therein”.38 In the Corfu Channel case, it was
held that every State has an obligation not to allow knowingly its
territory to be used for acts contrary to the rights of another State. 9
It may be stated as firmly established in international law that a
State which either intentionally or through culpable negligence does
36 Details see Ibid. pp. 758-765.
37 Resolution adopted by the General Assembly of the United Nations, U.N.
Doc. A/5656, 13 December 1963. Hereafter referred to as the Declaration.
38 Trail Smelter Arbitration between the United States and Canada decided
March 11, 1941. U.S. Department of State Arbitration Series 8, pp. 36-37. U.S.
Treaty Series, no. 983, A.J., 30 (1936) Suppl. p. 163. Detail of the case see J. E.
Read, The Trail Smelter Dispute, 1963 Canadian Yearbook of International Law,
Vancouver, pp. 213-229.
39 The Corfu Channel case, Albania and the United Kingdom, International
Court of Justice, 1949, I.C.J. Reports 1949, 4, 22.
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LEGAL IMPLICATIONS OF McGILL H.A.R.P.
165
not comply with this duty is guilty of an international deliquency for
which it must bear responsibility. If damage is caused to another
State as a result of an act committed in its territory, this State has
the responsibility of reparation. 40
The principle, however, laid down by the Trail Smelter and Corfu
Channel cases only extends to “sic utere tuo alienum non laedas”
(you should use your property so as not to cause injury to another).
Certainly, this principle should apply also when the territory is used
with permission by foreign States and nationals. In other words, the
State which permits its own territory to be used by non-nationals
still must bear primary responsibility.
The regime of responsibility laid down by the Trail Smelter case
directly referred to harmful results caused only in the territory of
another State. This principle could properly be extended to include
damage taking place on and above the high seas, and in the outer
space.41 It would mean that no State has a right to use or permit the
use of its territory in such a manner as to cause damage or injury to
another, irrespective of the place of injury and damage.
The Government of Barbados is responsible only to the Governor
who is a servant of the British Crown. 42 Hence in international law,
the United Kingdom is responsible for the activities of the Govern-
ment of Barbados. In view of the Corfu Channel decision, which
prescribed that no state has the right to use or permit the use of its
territory in such a manner as to cause injury to the territory of
another or the property or persons therein, it seems that the Govern-
ment of the United Kingdom will be responsible in international law
for injuries caused on or above the high seas by Martlet experiments.
In search for principles applicable to this problem the emerging
law of space should also be considered. Thus, Article 8 of the United
Nations Declaration states that,
40 Oppenheim, International Law, vol. 1, 8th ed. 1955, p. 338.
4′ A similar suggestion is found in Peider K6nz, The 1962 Brussels Convention
on the Liability of Operators of Nuclear Ships, 57 A.J. I.L. no. 1, January 1963,
pp. 105-106. It was stated like this: “In connection with the rule of channeling,
some question arises as to whether the Convention should be interpreted as a
bar to the responsibility of states which might be incurred under customary
public international law, e.g., by an extension of the Trail Smelter doctrine to
a licensing state which authorized a nuclear ship to be operated without proper
safety precautions”.
42 He holds only a limited authority from the Crown and cannot be regarded
as a viceroy; he does not possess general sovereign power. His authority is
derived from his commission and confined to the powers thereby expressly or
impliedly entrusted to him. It is doubtful if he has the power to approve the
lease of the launching site. See Halsbury’s Law of England, 3rd ed. vol. 5, pp.
616 and 618.
166
McGILL LAW JOURNAL
[Vol. 10
“Each State which launched or procured the launching of an object into
outer space, and each State from whose territory or facility an object is
launched, is internationally liable for damage to a foreign State or to its
natural or juridical person by such object or its component parts on the
earth, in air space, or in outer space.” 43
The Declaration thus envisages four potential subjects of respon-
sibility: the launching State, the State which procures the launching,
the State from whose facility an object is launched, and the State
from whose territory an object is launched.
If Article 8 is read in connection with Article 5 of the Declara-
tion, 44 it can be seen that the “State” alone bears responsibility,
whether the damage is caused by governmental activity or otherwise.
Within this context it is difficult to find any rules which would apply
to Canada in the case of Martlet. Unless the term “each State” is
interpreted to include Canada as a juridical guardian of its nationals.
the Canadian Government cannot be held responsible. The United
Kingdom from whose dependent territory Martlets are launched
appears as a more topical subject of responsibility.
The most ambiguous phrase in the Declaration is probably “the
State which procures the launching”. “Procures” is a “comprehensive
word of many meanings” 45 and can be defined as “to initiate a pro-
ceeding; to cause a thing to be done”, 46 or “to bring about,” to “put
forth or employ care or effort, to endeavour labour; to use means”. 47
Therefore, if “procure” is interpreted as “to put forth or employ care
of effort”, “to assist”, it may be inferred that the United States is
also responsible for damage caused by Martlets. Should litigation
arise in the future it is submitted that both the United States and
the United Kingdom may each be held fully liable for the injuries
43Supra note 37. It may be helpful at this point to recall that the Draft De-
claration of Principles Relating to the Exploration and Uses of Outer Space,
submitted by the United States in 1962 to the United Nations, proposed that,
“A State or international organization from whose territory or with whose
assistance or permission a space vehicle is launched bears international respon-
sibilty”. See U.N. Doc. A/C 1/881 December 8, 1962.
4Article
5 deserves to be cited in full : “States bear international responsi-
bility for national activities in outer space, whether carried on by governmental
agencies or by non-governmental entities, and for assuring that national activities
are carried on in conformity with the principles set forth in the present Declara-
tion. The activities of non-governmental entities in outer space shall require
authorization and continuing supervision by the State concerned. When activities
are carried on in outer space by an international organization, responsibility for
compliance with the principles set forth in this Declaration shall be borne by
the international organization and by the States participating in it”.
45 Corpus Juris Secundum, vol. ’72, 1951, p. 1206.
46 Black, Law Dictionary, 4th ed. 1951, p. 1373.
47 The Oxford English Dictionary, vol. VIII, Oxford, p. 1417.
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LEGAL IMPLICATIONS OF McGILL H.A.R.P.
167
caused by Martlet experiments. As far as the nature of this liability
is concerned, the Declaration offers no clues. However, in view of the
hazardous character of activities involved, it is safe to assume that
absolute liability would apply 48
(3) Registration and Supervision of Martlets
In 1961 the United Nations General Assembly passed a Resolution
recommending the registration of launched spacecraft with the Se-
cretary General.4 9 Both the United States and the Soviet Union have
complied with the Resolution.” Owing to the ambiguous wording of
the Resolution, it is not clear if all types of spacecraft should be so
registered and what kind of information States are expected to
submit. It is, however, a general practice that only spacecraft with
orbital capability are registered.
This recommendation has been broadened and more expressly
stated in Article 5 of the United Nations Declaration, 51 which on the
one hand, recognizes the legality of non-governmental activities,52
and on the other hand, prescribes that such activities should have
“authorization and continuing supervision by the State concerned”. 53
This provision implies the necessity of an organized method of na-
tional supervision and control over non-governmental space activities
48 Limited Liability and minimum exoneration of liability are found in the
aviation law and nuclear energy laws, for instance, Paris Convention (Conven-
tion of Third Parties Liability in the Field of Nuclear Energy, 1960) limits the
compensation to 15 million u/a and its supplementary Convention of 1963 limits
(Convention on the Civil Liability
to 120 million u/a. The Vienna Convention
For Nuclear Damage, 1963) limits to U.S. $5 millions (Article 5). The Brussels
(Convention on the Liability of Operator of Nuclear Ship, 1962)
Convention
limits to 1,500 millions (Article 3).
49 United Nations General Assembly 1721 (XVI), December 30, 1961, Inter-
national Co-operation in the Peaceful Uses of Outer Space, Section B. Detail
discussion see McDougall, Lasswell, Vlasic, op. cit., pp. 573-574.
50 Effects of the United Nations Resolution see M. M. Whiteman, Digest of
International Law, vol. 1, p. 68, 1963. J. C. Cooper, Current Developments in
Space Law, paper submitted for presentation at the Southestern Regional Meeting
of the American Society of International Law, 1963. Johnson, The Effects of
Resolutions of the General Assembly of United Nations, The British Year Book
of International Law, 1955-1956, pp. 121-122.
51 Supra note 44.
52 Serious disagreement on the extent to which free enterprise may participate
in the exploration and use of outer space emerged during the second session
of the Legal Sub-Committee on the Peaceful Uses of Outer Space. See U.N. Doc.
A/AC. 105/SR. 9; A/AC. 105/C. 2/SR. 7; A/AC. 105/L. 2; A/C. 1/879; A/AC.
105/c./2SR. 8; concerning views of each member State on the debates of the
subject.
53 Second part of Article 5 of the Declaration.
McGILL LAW JOURNAL
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which is to be achieved according to Article 7 by the institution of a
national registration. Article 7 of the Declaration thus states:
“The State on whose registry an object launched into outer space is carried
shall retain jurisdiction and control over such object, and any personnel
thereon, while in outer space. Ownership of object launched into outer space,
and of their component parts, is not affected by their passage through
outer space or by their return to the earth. Such objects or component parts
found beyond the limits of the State of registry shall be returned to that
State, which shall furnish identifying data upon request prior to return.”
It may be observed, furthermore, that according to Article 7, entry
into national registry serves as evidence of ownership of spacecraft
and may eventually support the claim for the return of the object
fallen beyond the limits of the State of registry.54 The need of re-
gistration becomes more compelling in the case of non-governmental
spacecraft, because they might lack clear evidence of ownership and
certainly require regulation.
Registration and supervision have long been adopted for ships,
since they operate in the “common domain” of high seas where com-
petence is shared. Ships sailing on the high seas are required to be
registered in a State whose flag they fly and that State is responsible
for their activities wherever they are.55 The same rules apply to
aircraft flying over the high seas,56 and they include registration and
supervision of aircraft, enforcement of regulations and punishment
of violations.57 Activities on the high seas such as fishing, laying
submarine cables and pipelines, are also subject to State regulation.,
It is therefore submitted that as a general principle of international
law, any activities carried on or above the high seas should be subject
to State regulation and supervision.
As far as the Martlet experiments are concerned, the launchings
have been carried out without special authorization or supervision by
any State. The vehicles themselves are not registered and bear no
indication of nationality. At present, it seems that there is no need
for their registration with the United Nations since they are not
capable of orbital flight. The requirement of registration will not
apply at least as long as the flight of Martlet is limited merely to
the upper regions of the atmosphere. However, in order to comply
with the general principles of international law relating to the respon-
54 Article 7 of the Declaration.
55 Article 4 of the Convention on the High Seas of 1958, op. cit. supra note 27.
56 Article 8 of the Convention on International Civil Aviation stated that, “Over
the high seas, the rules in force shall be those established under this Convention”.
57 First part of the Article 12 of the Convention on International Civil Aviation.
58 Article 1, 3 and 14 of the Convention on Fishing and Conservation of the
Living Resources of the High Seas, 1958.
No. 2]
LEGAL IMPLICATIONS OF McGILL H.A.R.P.
169
sibility of States for activities on the high seas and in particular with
the spirit of the Declaration, it is desirable that some State involved
in the experiments formally undertake to “authorize” and “supervise”
the Martlet launchings. Perhaps the Government of Barbados (or of
the United Kingdom) would be the proper choice for these functions,
as it is their territory which is used for activities having potential
(and actual) impact upon the “common domain” of the high seas.
Canada has neither “launched” nor “procured” the launchings; its
territory and facilities are not used in the experiment. Yet McGill
University is a Canadian corporate body. What role, if any, should
the government of Canada assume? When Martlets are put in orbit,
in order to retain jurisdiction and secure control over them accord-
ing to Article 7 of the Declaration, Canada would no doubt be the
logical place of registration. However, even before that stage is
reached, it would seem desirable to establish some kind of normal
link between these experiments and the Government of Canada.
NEWSPAPER REFERENCES
McGill Launches New Space Project, Plans Satellite Firing from Barbados
Montreal Star (Canada) Monday, March 26, 1962.
McGill Expands Facilities for Research in Barbados,
Montreal Star, March 27, 1962.
McGill Set to Launch Space Rocket Shots, Gazette (Montreal), March 27, 1962.
Ocean of Air May Extend as High as 60,000 Miles, Montreal Star, March 27, 1962.
Test of McGill Statement on High Altitude Research, ibid.
Barbados Excited Over McGill Plan, Montreal Star, March 28, 1962.
McGill Launches Arid Zone Project,
Barbados Daily News (Barbados), Monday, March 26, 1962.
Barbados “Natural Choice” for High Altitude Project,
Barbados Daily News, Tuesday, March 27, 1962.
Big Gun for McGill, Montreal Star, July 14, 1962.
U.S. Army Aids McGill Research, Montreal Star, July 14, 1962.
Haul Guns Overland, Montreal Star, August 14, 1962.
Gun Could Adapt to Anti-Satellite Use, Gazette, September 18, 1962.
Dates Set for Tests, Montreal Star, September 18, 1962.
McGill Space Study to Fill Empty Field, Gazette, October 2, 1962.
McGill’s Missile Nearing Pad, Montreal Star, November 27, 1962.
First McGill (test) Space Launching Imminent, Montreal Star, January 18, 1963.
McGill Scientists Now Ready to Launch. Own Space Vehicle,
Montreal Star, January 14, 1963.
First Martlet 1B (test) Launched, Gazette, January 28, 1963.
Martlet IA Set for Friday Shot, Gazette, January 31, 1963.
McGill’s 4th Martlet Shot Goes Off Successfully, Gazette, February 2, 1963.
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McGill’s HARP Launched, Montreal Star, February 19, 1963.
McGill Steps Up Its Space Research to Include Rockets, Gazette, March 1, 1963.
McGill Plans 1,000-mile Shot Into Space, Montreal Star, March 1, 1963.
How Canada Took Aim at Space With. a Gun,
Gazette, Canadian Weekly, March 2-8, 1963.
New Series of Shots Slated for McGill Space Project,
Montreal Star, April 23, 1963.
McGill Team Breaks Record with Latest Space Shot, Gazette, June 20, 1963.
Barbados Project McGill Sets Altitude Mark for Gun-Fired Space Shots,
Montreal Star, June 19, 1963.
McGill Martlet Fires Record-Breaking Shot, Montreal Star, June 27, 1963.
Gun Launches Show A-ICBM Potential, Missiles and Rockets, July, 1963.
McGill’s HARP Project Plans 300 Space Shots, Gazette, January 11, 1964.
CASE and COMMENT
