Space - A Legal Vacuum

• Author: BY Joseph J. Simeone, Jr.
• Pages: 02

1. INTRODUCTION

   When the first Sputnik pierced the atmosphere enveloping the earth just four short years ago, the words of H. G. Wells, in one of his fascinating stories, echoed prophetic:

   We have learned now that we cannot regard this planet IS being fenced in and B lieenre abiding-piaee for mm; we can never anticipate the unaeen good 01 evil that may come upon us avddenly out of space. It may be that in the larger design of the mivane [what has happened1 Is not without ita ultimate benefit for men: it has robbed us of that ierene con. fldenee in the futuie which is the mast fruitful LID VIE^ of deeadence.lAnd now that Gagarin, Shepard, Grissom, and Glenn Titov, have penetrated the threshold of infinite space the legal aspects of these space activities became urgently important in order to achieve order and stability out of the numerous scientific achievements. For without law and order in any field of man's achievements, chaoa, rivalries and uncertainties result which lead to either individual or national conflicts. Both former President Dwight D. Eisenhower and President John F. Kennedy have emphasiied the critical need for cooperation and agreements to limit the use of outer space to peaceful purposes rather than to have another "focus for the arm8 race."

   To discuss a few of the many pressing problems is the Furnose of this article. Obviously the legal problems cover every phase of man's activities. Suppose, an astronaut blasts off from the earth in the new Saturn or Nova rocket and is never heard from again. When is his wife entitled to collect his life insurance? Suppose, BS

   has recently been suggested, that the first manned moon shot be made by one American, one Russian and one citizen of a neutral country and a tort occurs on board. What law would govern liability, if any? Would the same rules governing neutrality, belligerency, piracy, tortious violations or business transactions be applied to svace activities or will new coneeots have to be created to meet

   *This article IS baaed on an address given by the author on October 20,IR61, in conjvnetion with the St. Louis University Founders' Week. The opinions and e o n ~ l ~ ~ ~ i ~ n s presented herein me those of the author and do not neees~~rilyrepresent the Y~PWP of The Judge Advoente Gmersl'a School OFany other governmental aqtney.

   **Professor of Law, St. LOUIS University, St. Louis, Missouri; B.S., St. Louis University: LL.B.. 1946, WYarhmgton Uniuerslty; LL.M., 1954, UniYemity of Michigan; Member Of Mi8souri and lllinoia Bsm.

   1 Wells, War of the Worlds, Epilogue (1895).

   SPACE LAW

   passed the point. , . where it can afford to sashay into space without some anticipation of the consequences or permit the concept of space regulations to 'just grow'."e

   It is submitted that the following major legal problems are critical : (1) Is outer space free for all nations to use and explore for scientific progress or is outer space subject to the sover-eignty of the subjacent state? There are various ways of stating this question-What right does one country have to orbit a satellite over another without ita consent, or how far up may one nation exercise its rights of saver-eignty so as to prohibit the orbiting of satellites?

   (2) Can the proliferation of space hardware continue without some international regulation?

   (3) What is the liability, if any, for damages caused by rockets, boosters, satellites etc.?

   (4) What is the legal status of celestial bodies? May they be appropriated by one of the space powers to the exclusion of all other countries?

   11. SOVEREIGNTY

   The problem of sovereignty has probably cayLured the attention of most writers in the field. The problem was discussed as early a8 1951 by Professor Cooper and by many authors since then. The old doctrine--Cujua est aolz~m ejua et usque ad coelvm*-was the guiding principle in English law.@ But with the development of air power. such a doctrine, of necessity, gave way. The first attempt to make "airspace" free was at the 1902 Brussels meeting of the Institute of International Law. Paul Fauchille first advanced the case for "freedom of the air." His argument was based on the law of the aea-that complete freedom of the air should a Keating, mpra note 6, at 482, 435,7 Cooper. Hzuh Altilude Flight m d

   Naltond Souerezunly, an address given kfore the Escwia Libre de Dermho in Mexico City in 1950, reprinted in s. Doe. Xo. 26, at 1.

   BThe doctrine is fully diseusiied in MeNnir, The Law of the Air, oh. 2 (1953); Klein, Cui=. Est Svhm Ejus Est, 2% J. Air L. & Com. 287 (1959); 2 Blaekatane, Cornmentaras 18 (8th ed. 1778). Profewor Cmper has traced the hiatory of the doetrine in 1 MeCill L. J. 23 (19621.

   *Horizontal sovereignty of a state hsa not been queationd since the doetrine of territoriality brsime established in Anglo-American law. And either by stetute or by custom each sovereign exercises jurisdiction over the high sea8 to B prescribed distance from the shore. Since the days of G o - Washington, the United Statea has elaimed jurisdiction up o me sea league or thwe nautical milea from the 3ore. 1 Hyde. International Law. Chiefly as Interpreted and Applied by the United Statea 451 (2d ed. 1945). In some instances the United States ~xeieises jurisdiction kyond this limit. 18 in the case of the anti-smuggling act. 49 Stst. 517 (1935). 19 U.S.C. 8 1701 (1968).

   be guaranteed 80 that the air could be used without violation of the sovereignty of the subjacent state.lo But Fauebille was challenged in 1906 by the eminent British lawyer, John Westlake, who urged state savereignty.11 With the pressure of events in the seconddecade of this century, the Paris Convention of 1919,'* signed by the United States but not ratified, provided that each sovereign atate had exelusive sovereisnty over the air space above its territory. This doctrine was carried over into subsequent conventions and is presently embodied in the present Chicago Convention.ls The question whether this convention governs flights besond the "airspace" has been debated by many authors snd various theories have been set forth. It is fair to say that most authors believe that the convention does not npply to activities in space, far many reasons. Practical considerations refute the vertical sovereignty theory as well as the language of the convention itself. Limitless sovereignty cannot practically be achieved, 80 that outer space is to be "res extra commercium." One authority holds to the view that fundamental difficulties preclude the sovereignty principle :

   The Rrat is that any projeetion of territorial sovereignty into space beyond the atmosphere wovid be inconsistent wlth the basic astronomical facts. The revolution of th8 earth on ita 0- axis, its rotstion around the sun, and the motions of the sun, and the motions of the BY" and the planeta through the galaxy all require that the relationship of paTtlcYlar sovereignties On the iudaee of the earth to spaee beyond the stmasphereis never constant for the amalleat eoneeivable frsccion of time. Such a10 ass the Project drafted by the Inrtltvte of lnternstlonal Law for the Regulation of Aermiali and Wireleas Telegraphy in I Am. J. Int'l L. SUPP. 147 (1913): ,,Art 1. The sir 1s free. State8 have no authority over It, in timp d pcnee in tlm% of war, other than that which 18 neeaaaary for their own oreaerustion." It IP intereitiw to note that the esdy pdota were known

   us to maintain that under the Chicago Convention the sovereignty of the United States extends 10,000 miles from the surface of the earth. . ."'?

   The question may properly be asked whether there is any need at all for specifying a line above which...