The Law of the Sea : A Parallel for Space Law

• Author: Captain Jack H. Williams
• Pages: 05

I. INTRODUCTION

The remainder of what a future historian vili-nly in that fuhm-be entitled to call "The Law of Space." when iaw i i eonedved 8s the e m . munity's expectation about the ways in which authority will and should be prescribed and applied, wiil undoubtedly grow by the siow building of expectations, the continued weretion of repeated instances of tolerated acts, the gmduai development of os~umnee that certain thinga may be done under promise of Teeiproeity and that other thinga must not be done under pain of retaliation. The practice of the various makers of deeiaions, most of them in the foreign offices of nation atatea, wiil be guided by the experience of the past; it is in this way. and not by mechanical translation, that tha two great bodies of legal experienoe with respect to sirand the sea will become relevant.!

It Is logical to assume that the rules to be applied to space law will be formed from existing law. Traditionaily, as new situations have arisen, existing rules of law have been reshaped to apply to them.% There is no such thing as a new law, which can spring fully clothed from the brow of a scholar, far all new laws are merely adaptations af previous ones, perhaps "dressed up" to create an Impression of newness. Man can only build upon his howledge of the past: so it is with the law. It would seem, then, that we can expect space law to be shaped from earth law, and not "created" a8 something entirely new and different.

11. THE SEA-SPACE ANALOGY

It is the law of the sea which perhaps provides the best analogies for space. Most writers have looked to air law for applicable rules, but have found little. Actualiy, the relationship of the sea to the

'The Dplniona and eonelmioni preamted herein are those of the author and do not necessarily represent the views of The Judge Advocate General'sSchool, The United States Military Academy. or any other gavernmsntni agency.

** JAGC, U.S. Army; Amitant Professor. Department of Law, 0,s. Miiitary Academy; LL.B., George Washington Law School, LL.M., George-town Law School; Member ai the Maryland Bar and the Bar of the U.S. Covrt of Militarv Aooealn.

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I MeDaugai and Lipaan, Pwapecfiue /or a Law of Ovfar Sp~ar, 63 AM. J.

2 See, e.&, Pound's diacvssm in 44 AH, L. Rev. 12 (1910).IPI'L L. 407,421 (1868).

countries of the world is more nearly akin ta the relationship of apace to the earth than is the air. The air lies mer the land below and the law of the air applies OWT the underlying territory, while space 8urrou.ridS the earth like a vast ocean.

As a general rule, the law which governs an airplane is that of the territory beneath it. The airplane is always related to the eadh-it must always come down. In Space there is no up or down. A spacecraft which has reached escape velocity and passed through the earth's atmosphere is no longer "over" any territory. This is due to the simple fact that the earth is constantly rotating. Thus, a spacecraft launched from m y point on the globe would necessarily "pass aver" many nations' territories, even if it went in a straight line, although the territories are actually passing beneath it due to the earth's rotation.j Therefore, to assert that a nation's airspace extends many miles into space, as Borne have suggested, is absurd, for such ''zones of savereimty" would be constantly shifting and encompassing new areas of Once in outer space, a spacecraft is very like a ship on the high seas-it i3 in no nation's space, it is over no nation's territory.

Ad Hoe Committee found the sea-space analogy worthy n and "unanimously recognized that the pnnciples and procedures developed, . , to govern the ude of such area8 as, , , the sea deseried attentive study far possible fruitful analogies." Jenks indicated that space presents a much closer analogy to the high seas than to airspace, so far as its legal status isand several other writera have indicated that the high seas analogy is more ureful than that of air law.' But to date, ody three writers

3i. I$%), P 504, 506. ?Hereafter cited as Spaor Law Simposwm I

SEASPACE LAW ANALOGY

have seriously proposed applying the law of the sea to space. Admiral Ward stated that "we shall see a more marked similarity between the doctrine of freedom of the seas and the doctrine goyerning sovereignty aver space, or the lack of such sovereignty" and that "the law of the sea tells us where to look for the authority to back up our rules far space navigation, once we ha\w our techni-cal information." Admiral Ward did not attempt ta apply the law of the sea to space as such, but merely indicated that there is much here which is relevant so far as sources for the law of space are concerned. In conclusion, he paraphrased the opinion of the Supreme Court on the Scotia mie in stating that "the authority behind our rules of space navigation will come from the concurrent sanction of those nations who may be said to constitute the space community." e

Yeager and Stark proposed that "Decatur's Doctrine" should be applied to space.Lo The Doctrine, simply stated, is that "The seas beyond reasonable coastal areas are free and subject to control by no single despot or nation, and the sponsors of ships at sea must be responsible for the conduct of their vessel8.'' 'I They indicated that "the most influential contemporary thinking, in fact, leads inescapably to the conclusion that basic maritime and naval principles, a8 they now apply to the high seas, must eventually be transferred to space."12 They went an to point out that these rules are therefore the ones which are most likely to develop so far as regulations and utilization of outer space ii concerned, but they did not go into any detail a9 to how this will or should be done.

The Report of the Committee on Law of Outer Space of the American Bar Association noted that there is much in the law of the sea which will be of value in dealing with the problems of outer 8pa~e.l~

8 Ward, Pmjectinr the Law ai the Sea Into the Law oi Spoee, JAO J. 3-8 (March 1957).

8 Id. at 8.

10 Yesger and Stark, Dseatur's Dacttinr, A Code io? Outer Spare?, 8s II Ibid.

11 Id. at 931.13 "Partieuiar sOIuTiom OF devices may commend themselvea for adapts. timi historic failurea may enable us to guard againat repetition. The law of the lee may afford some hints for the neeommodation of melusive use8 ilke navigstion (apsce Right). fishing (exploitatmn of mineral or energy re.

SOY~CBB), and cable-laying (communications) to defensive 07 ex~lutive

931 (18%)

like naval msneuvera, protection of customs, and protection of neutrality, and Vice veraa. Rules of space navigation may draw upon the expmienee of the l a r of the sea and of the law of airspace." A.B.A. REI.,

CODIM. ozi LAWOP OUTER SPACE, IFT'L. & COIP. L. SECT., PRocrmlnos 215 (1859).

U.S. NAY& INSTITLIE PROCEIDINCS

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However, the basic point which must be stressed is that the rationale, the needs, and the expectations whieh helped to develop the law of the sea are eseentially the same for space. It is primarily in the area of application that controversy arises.

Most legal witers do not believe that the law of the sea is applicable to space. They argue that "there are very great risks in attempting to transmute a body of law baaed upon a determined set of facts an the earth into a body of law with respect to celestial bodies as to which the facts have not been determined,"" or that "we must seek better reasons for OUT law than that certain rules

were appropriate to the law of the seas." Is Some feel that the law of the sea is too complex to apply le or that the analogy is inappropriate.'? Others indicate that air law is presently applicable, while the law of the sea is not.18

At the same time these writers have stressed the need for freedom of outer space, the necessity for a territorial space, and the right of innocent passage through it. Assuming that there is a need-social, economic, or political; assuming that any of these features are desirable in a law of space; we are then faced with the same legal rationale which led to the development of these principles in the law of the sea.

From the above discussion we must conclude that there is sea. space analogy, in the physical as well a8 in the legal sense.

111. PARALLELS FOR SPACE LAW IN THE LAW OF THE SEA

A.

The principle af freedom of the high sea9 in internstional law is particularly applicable to outer space. This principle was first set forth by Grotius.'a who based his proposal on the premise that nonation was capable of exercising dominion over large portions of

14 Eeeker, United State8 Forawn Palb and the Development of Low 107 Oufrr Spwe. JAG J. 4, 30 (Feb. 1869).

16 Jsffe, Soma CmSeratima in the International Low a d Palitwll ofSpaoe, 6 ST. LOUIS U.L.J. 302 (1958).

18 See Eereafard, The Legal Control of Outer SIPEP, address at the annual meetinn ai the American Bsr Association. A w w t 26. 1950. reminted in

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Spncs i-w Sympa8tum. at 410.

17 See Feldman, An American Viw of Juriadietion in outer Space, paper presented before the International Aatmnautiesl Federation, The Hague, August 29, 1968, reprinted in Space Low Symposium, at 428.

1s Aaronson, S w s tau, htamtzaol Relotiow JDLRNAL 01 TBE DAVID DAYIES MEM- I N ~ T U T E

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416 (April 1858).

I9 Ii GWIUB, DE JURE BELLl Ac PACIS, ch. 2, $ 2 (1818).

OF INTWINARONAL

FREEDOM OF THE HIGH SEAS AND OF THE AIR

SEASPACE LAW ANALOGY

the sea. The principle was not accepted readily by the nations of the world, many of which chimed large portions of the sea. However, the principle of freedom of the seas eventually found wide acceptance, due mainly to...