National Sovereignty in Space

• Author: Captain George D. Schrader
• Pages: 02

1. INTRODUCTION

   Prior to the launching of the first lunar probe by the United States, President Eisenhower received a cable from a private citizen in one of the British dominions. The sender informed the President that he had properly filed claim to a certain area of the moon and intended to hold the Cnited States responsible for any damage to his property caused by the probe. Sam after the Soviet Union launched their first satellite certain persons in the United States advocated that this nation make every effort to shoot down Sputnik I, which they claimed was violating United States sover-eignty. Thus the generation of legal problems ta perplex the space age was begun

   From this beginning it is easy to see that the legal problems facing the space age will be many and complex. Three of the more important problems concern (1) the sovereign rights of subjacent states in the space above their territory, (2) the organization which should formulate the ground rules far space activities and exercise jurisdiction in the area beyond the limits of national sovereignty, and (3) whether or not a comprehensive space code should be developed as apposed to allowing the law applicable to space to unfold by a process of evolution.

   The rights of the subjacent state to exercise sovereignty in the space above its territory has received a great deal of attention during the past few years. Many noted authorities have cantributed research papers on this subject and the United States Senate in 1961 prepared a comprehensive symposium dealing with this and other related subjects. The United Sations in 1968 ap-painted an Ad HOC Committee on the Peaceful Uses of Outer Space ta consider a multitude of problems in the area of space activities. Further the American Bar Association has appointed

   Thls article was adapted from a thesis presented to the War College of the Air Unwersitv. !,laxwell Air Farce Base. Alabama. while the autlior WBQ B member of the War College Extension Courae, and Y pvblmhed with the permmian of the Air University. The opimons snd concI11sions cmeaented herem are those of the author and do not neee~~azilvre~resent the n e w of. .

   the Air Unwernitp, The Judge Advocate General's School, or ~ n y other

   governments1 agency.

   .*Judge Advocate, United States Air Farce: Assiatsnt Staff Judge Advo.

   ate, Headquarters, 72d Cambat Sumort Group (SAC) ; LL.6.. University of Kentucky College of Law: Member of the Kentucky Bar.*oo BiiiS 41

   .

   a special Space Law Committee and in February 1961 the Inter-American Bar Association adopted a Xapna Charta of Space. However. even with a11 this tremendous amount of material there is little agreement either on the terminology for space law, or about the abore cited problems.

   The urablem of confiictinn sovereinntv interest8 in airaoace. I. . .

   space and outer space has been approached from various points of view ranging from law to national security. Further, there is an equal amount of conflict concerning the role to be played by the individual states as apposed to the United Nations as the sovereign body to regulate space activites. These are the two basic problems to be considered in the following sections which also include comments to a lesser degree on the proposition that a comprehensive space code should be adopted and that maritime law should be used as a guide for the formation of astronautical jurisprudence

   The main emphasis in this discussion is to be placed on the problem of national sovereignty in apace because here lies the crux of all the related problems. If this one questionable area can be isolated and properly disposed of, then there is certainly hope for the agreeable solution of other problem areas. The discussion of theories on extraterrestrial sovereignty contained in Section 111, infva, considers a wide variety of proposals and an attempt to corrolate those which adhere to the same basic principal that state sovereignty does have an upper limit. In this vein, once the sov-ereign rights of the subjacent States are specifically defined the exploration of space and outer space can progress in an orderly fashion.

   Upon solution of that problem, the appointment of an arganizatian to act as the governing body above the area of state control and to formulate rules and regulations far space activities is next in line. If this can be accomplished, the struggle for space control or the claims to celestial bodies by terrestrial nations can be eliminated. If this is possible through orderly agreement, the nations on the earth may explore and develop the planetary system for the benefit of all mankind.

   11. SOVEREIGNTY IN AIR SPACE-THE BACKGROUND

   1. LEGAL TERMI.VOLOGY

      The year 1961 will be recorded in history as the year man himself entered the space age. This will bring forth many new and also some very old legal problems. One of these problems will be that of establishing definitions in the law far describing

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      the various regions of the atmosphere and the area beyond the atmosphere.

      Astronautical Jurisprudence IS a new field of law, and it raise* lome basic questions which must soon be answered, namely: What, in law, is meant by the term 'a~mpace?' What are the scientific divisions of the upper reg~ons of the earth's atmosphere? How doea 'space' differ from 'outer space.' 'world space.' 'territorial space.' 'eontiguoun SPBEBI' 'teTrestliaI apace.' &e.?>

      The word airspace which has been used frequently in cases dealing with disputes between landowners and aviators has never been fully defined either in the law or by an international convention dealing in this problem area. Further, the wards airspace, space, and outer space are used interchangeably which indicates a need for standard terminology in the field of astmna~ti~allaw.

      The popular conception is to divide the area above the earth's surface into definite sections. Therefore, it is submitted that adopting the term flight space as synonymous with the term atmosphere may be a solution. The atmosphere actually has no limits but grows so thin at approximately 21,000 miles above sea level that traces of air become imperceptible.* Thus, at this height there exists a point of departure for outer apace that is out of the earth's atmosphere.

      The flight space or earth's atmosphere could then be divided into two areas "airspace" (territorial space) and "space." (See Appendix A, infra.) The dividing line would be rather flexible as airspace would be defined as only those areas where sufficient gaseous atmosphere exists to provide aerodynamic lift for flight instru'. mentalities such as balloons and aircraft.' The upper limit would be the van Karman Primary Jurisdiction Line which will be discussed in Section 111, infra. This would be at an altitude of approximately 60-10 miles above the earth's surface. The area above this line would be referred to as "space" and provide transit for flight instruments such as guided missiles, satellites and spaceships prior to leaving the earth's atmosphere.

      "Outer space" has been referred to a8 "world space," "extra atmospheric" and ''comnic space ;" therefore, B standard terminology for the upper regions beyond the atmosphere is evident. John C. Hogan of the Rand Corporation advocates that terms based on the nomenclature of astronomy could be used in the law

      1 Hogan, Legal Te~minalogy far ths Uppev Regions a( the Atmosphere and fa7 Spms Beyond lhe Atmoaphwe, I1 Am. J. Int'l L. 362 (1957).

      3 Ibid.

      8 Cooper, Missilea and Satdliteb: The Law ond Our Notional Policy, 44 A.B.A.J. 317, 321 (1958).

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      for referring to areas of outer space.' He submits that the mlar system, as used in astronomy to refer to the sun and the several bodies that rotate around it, could be termed in astronautical law as "Solar Space." In addition, the galactic system more commonly known as the "Milky Way" would be termed galactic space, while the area beyand would be referred to as extragalactic space. (See Appendix A, infra.)

      This would then establish a sound terminology for the field of astronautical law to follow based on the field of astronomy. Further the adoption of this terminology as it applies to Right space and outer space would establish uniformity In a presently most confused area.

   2. EARLY THEORIES

      The early 1900's found three major theories regarding freedom of the air under discussion by interested organizations. The Institute of International Law meeting in Ghent in 1906 took up the subject and the proposed theories. Paul Fauchille, the French delegate, advanced the theory that the air was free subject to a zone limitation.' He advocated that the first zone, that nearest the earth, could be used for the construction of buildings. The second zone, between 330 meters and 5,000 meters, would be open to free flight. The space above 5000 meters at that time was inaccessible by aircraft. He also felt that flights under 1,500 meters might be prohibited for security purposes.

      In opposition to this proposal were those nha advocated that the air was free and not subject to the control of any state. Also there were those who proposed that the air was subject to the sovereignty of the subjacent state. After the various proposals were given consideration the assembly of the Institute in effectadopted Fauchille'e theory Ststing, "The air is free. States have in it, in times of peace and in times of war, only the rights necessary to their conservation."

      The Institute af International Law considered the same question in their meeting in 1910 and then in 1911 broadened the above statement to allow the subjacent states ta take certain measures to insure their security and to protect the persons and property of their inhabitants: This proposal brought criticism from various

      4 Hogan. supra note 1.

      I

      See Legis. Ref. Serv., Library af Congress, Legal Problems 01 Spaor Ezplorofia-A Symposzum. S. Doe. No. 26, 87th Cong.. 1st Senn. 1219 (1961)(hereinafter cited as S. Dac. No. 26).

      6 S. Doe. No. 26, at...