The sovereignty of space is up for grabs. How high up does a nation go? Ultimately the politicians will decide; meanwhile lawyers are doing the talking. Sputnik speaks for the Russians

SIDNEY KATZ January 18 1958


The sovereignty of space is up for grabs. How high up does a nation go? Ultimately the politicians will decide; meanwhile lawyers are doing the talking. Sputnik speaks for the Russians

SIDNEY KATZ January 18 1958


The sovereignty of space is up for grabs. How high up does a nation go? Ultimately the politicians will decide; meanwhile lawyers are doing the talking. Sputnik speaks for the Russians


On November 6, 1957, three days after the Russians had launched Sputnik II, Prime Minister Diefenbaker was asked in the House if Canada's sovereignty had been violated. At times the earth satellite had passed over Canadian soil at a height of one hundred and fifty miles. The prime minister's reply was brief and noncommittal. It graphically underlined the fact that, from the point of view of international law. the sudden advent of the space age has caught the world unprepared.

In every world capital, dozens of strange, complicated and occasionally preposterous questions are being asked. Some of the discussions are so fanciful that most laymen would expect them to be confined to devotees of science fiction. Yet many serious students of international law and some of the most scholarly legal journals are debating points like these:

Did Sputnik violate the sovereignty of every country it passed over?

How high up does a nation's sovereignty extend?

If an artificial satellite falls to the ground and causes damage, who pays the bill?

What authority exists to prevent a nation from jamming the earth's communication

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"The sudden advent of the space age has caught the world unprepared.. At present the field of space law is a bubbling cauldron of legal conjecture and opinion"

Who owns if, anyway? continued

systems by radio and TV broadcasting from a space station?

If a collision takes place between two space ships, who's responsible?

Should space ships, laden with deadly weapons and spying cameras, be allowed to circle the globe without restriction?

If the Russians—or any other people—land on the moon first, does that mean they own it'.’

Can the first-comers exploit the natural resources of the moon, or any other planet, without restriction?

And what about our relationships w ith the creatures (if any) of outer space? What laws would regulate our treatment of them—or their treatment of us?

The final answers to these questions will undoubtedly be made, not by the lawyers and scientists, but by politicians, statesmen and perhaps by generals. By this criterion the greatest authority on space law is Nikita Khrushchev, whose scientists have ushered in the space age. However, in an effort to prevent at least some of the future squabbles about space rights among nations, scores of aviation lawyers are busy try ing to write space laws. Oscar Schächter, legal director of the UN. says,

“ I he time to act is now. Questions about space rights are not far-fetched—they're practical and immediate.” Dr. Maxwell Cohen and Dr. Eugene Pepin, of McGill University's Institute of International Air l aw. call for the formation of im international space agency. “Such a body could anticipate most of the problems which will arise." they say . Dr. C. Wilfred Jenks. an associate of the Institute of International Law. in London. England, urges haste: “The time faotor does not allow a leisurely evaluation of the problem.”

But the need for immediate regulations is about the only facet of space travel about which most lawyers seem to agree. At present the held of space law is a bubbling cauldron of legal conjecture, opinion and speculation. Consider, for example, the basic question: how far above the earth does a nation's air sovereignty extend? Two Russian lawyers. A. Kislov and S. Krylov, gave a clear answer in the pre-Sputnik days of 1956: “There’s no limit to the height. The USSR have the right of the skies over their country to infinity.” Since then the Russians have remained disdainfully aloof from the debate.

John C. Cooper, of Princeton. N.J.. legal consultant to the International Air Transport Association, says that sovereignty should extend to six hundred miles. Christopher Shawcross, an eminent English air lawyer, describes this opinion as “unrealistic.” while P. K. Roy. of Montreal, legal director of the International Civil Aviation Organization (a UN agency that regulates international aviation traffic), says that “such talk of sovereignty is futile and meaningless” because you can't place markers hundreds of miles up in the sky and. besides. everything in space is in constant motion.

Basing his opinion on ICAO regulations. Eugene Pepin places the upper limits of sovereignty at fifty miles— beyond which there's not sufficient air density to sustain flight by conventional aircraft. “Present international laws were not intended to cover rockets and space ships." he says. Dr. Alex Meyer, the German air specialist. believes that the natural limit of jurisdiction is somewhere between 124 and 1 87 miles. Ibis opinion is based on the belief that there is enough oxygen molecules at this height to categorize it as airspace. Some meteorologists have taken the view that national sovereignty should extend to seven thousand miles, for the same reason. I he lack of an exact, scientific definition of the boundary between atmosphere and outer space accounts for the wide divergence in these estimates.

Much of the confusion can be blamed on the wording of the regulations that now govern international air traffic. In 1944 twenty-six nations met in Chicago and agreed to abide by certain rules of the sky. In the spring of 1947 ICAO was established as the supervisory body. Today some seventy nations belong to ICAO, not including Russia or Red China. Article including or 1 of the so-called “Chicago Convention” states clearly that every contracting state has “complete and exclusive sovereignty over the airspace above its territory.” However, neither the term airspace nor aircraft was spelled out in detail.

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I How can we claim sovereignty in space, asks an expert, when our skies are forever moving?

What exactly is meant by airspace? Most aeronautical authorities, after carefully examining the text ot the 1944 agreement, feel that airspace refers to the fifty-mile blanket of atmosphere that envelops the earth and in which it is theoretically possible for winged aircraft to fly. The higher you go, the thinner the air becomes. Although there are a few stray molecules of oxygen in space several hundred miles above the earth, at about fifty or sixty miles there is no longer sufficient density to sustain flight. However, the nations of the world, at the time they worked out the 1944 agreement, were not concerned with space craft, which can move through space without atmospheric support. “1 hat s why nobody at the time was concerned with how far airspace went up," says Dr. R. H. Mankiewicz, of Montreal, an ICAO legal officer.

To try for at least the beginning of larity the International Astronautical Federation—an organization interested in rocketry and space travel—recently appointed a committee of three lawyers and four scientists to define the outei limit of airspace, where, for all practical puiposcs. the atmosphere ceases. Within these limits, over its territory, each nation should hold undisputed sovereignty, according to one school of legal thought.

The area above the airspace would be designated as “space" and would be free to all the nations of the world, for peaceful purposes, much the same as the high seas. This principle seems to be in force at present. "No responsible body or government has charged that the Russian Sputniks violated national sovcieignty, says Oscar Schächter, legal director of the UN. Furthermore, Dr. Norman Mackenzie, an international lawyer who is now president of the University of British Columbia, strongly opposes any atjmpt to limit the activities of earth sat.Hites at present. “Our job now is to get up into outer space and solve as many problems as possible as quickly as possible."

A notable dissenter from the simple two-zone theory is John Cooper, who, in addition to his work with the International Air Transport Association, is administrator of the American Bar Research Foundation and a prolific writer on aviation law. Cooper has set forth a controversial suggestion that would divide the air into three zones. 1 he first zone would include the fifty-mile strip oí airspace and, in this area, each nation would reign supreme. "I his would correspond to a nation’s territorial waters, sa\s Coopet. /.one two would extend to a height of six hundred miles and would be known as “a contiguous air zone." Again, this can be compared to “contiguous waters" in maritime law. In this area the state would allow the passage ot space ships from other countries but would retain some jurisdiction for purposes of selfprotection. Zone three would compi ise all the outer space beyond six hundred miles—a territory free to all. much the same as the high seas on earth. "The three-zone system may be fanciful but it’s the result of a good deal ot thinking

and scientific investigation,” says Cooper.

An opposing school of thought, represented by the English lawyer C. Wilfred Jenks, holds that Cooper’s plan is thoroughly impractical: it’s impossible, Jenks says, to fix an area in space that perman-

ently corresponds to the territory of an earth nation. “Sovereignty into space beyond the atmosphere is inconsistent with the basic astronomical facts." he contends. Everything in the universe is in motion; nothing is constant. The earth

revolves on its own axis and rotates around the sun: the sun and planets move through the galaxy. Nothing remains still for even the smallest section of time. Thus, the same space that may be over France one minute, may be directly over Japan, for instance, a short time later.

“Control of the moon is a critical matter. Who controls it controls earth”

Again, ask the critics of Cooper’s three-zone system, how would a nation possibly exercise sovereignty over space? The enormous distances between the surface of the earth and outer space would make it impossible to state whether an event occurring in outer space had occurred above any given state. Furthermore, says England’s Shawcross, “a rocket traveling vast distances at tremendous speeds is incapable of detection, much less of interception, from the territory above which it is at any particular moment.” Because the territory of any nation on earth is so minuscular compared to the area of space, Jenks describes the notion of sovereignty of space as “ridiculous.” He says, “It would be like the island of St. Helena claiming jurisdiction over the Atlantic Ocean."

Many aviation-law experts, such as Pepin, of McGill, believe that squabbles between nations about air sovereignty could be side-stepped if all space travel were to be placed under international control. Jenks would like to see the authority over space vested in the General Assembly of the UN, acting on the advice of a body such as the International Atomic Energy Commission. A spokesman for ICAO says, “Control of space should be handed over to ICAO. For seventeen years we've had the nations of the world working together to promote safe air traffic. To get to outer space, space ships have to travel through the atmosphere—a realm which has always been our responsibility.” Maxwell Cohen, of McGill, suggests that perhaps a separate agency is required because “the ICAO mentality may be geared too closely to the idea of national sovereignty in the air.”

Whatever agency is finally established —if one is established—nearly everyone but the Sphinx-like Russians seems to agree on what its responsibilities will be. To begin with, the nations will have to agree on a schedule of launching satellites or space ships. Within the next five or ten years, there may be scores of space craft, belonging to a dozen nations, moving about in space. Their ascent may become a menace to ordinary aviation. Again, with heavy traffic in outer space, some form of control will be necessary to avoid collisions. If there are manned space ships aloft, accidents may lead to a loss of life as well as property.

In the near future it’s inevitable that there will be wide experimentation in getting space craft to re-enter the atmosphere and land on earth. This involves the possibility of damage to people and property. Satellites and space ships, therefore, would have to be clearly identified so that a person or government will know whom to sue for damages. “Perhaps an international insurance fund should be set up in anticipation of such damage, says Pepin.

R. H. Mankiewicz, the ICAO lawyer, suggests several other fields for international agreement. "We’ll need rules for search-and-rescue work," he says. “If an accident happens you might have dozens of people floating about in space. Who’s going to rescue them—and how ? There should be a pooling of meteorological information to give warnings of meteors and other navigational hazards. For the common safety, international minimal requirements should be established tor the airworthiness of space craft, the quality of launching and re-entry devices and the qualifications of the navigators and pilots of space ships.

Andrew Haley, a fifty - four - year - old Washington lawyer who has pioneered in space law, believes that there’s an urgent need for the nations to assign special radio frequencies for space-to-earth communication. He points out that in Sputnik I the Russians were transmitting signals on a frequency of 40.003 megacycles. “By international agreement that channel has been assigned for aeronautical safety services in Zone Two and Three in the Eastern Hemisphere,” he says. “That’s not hurting anybody right now but it’s a violation of the assigned use of frequency. If we keep on misusing assigned frequencies we’re going to get things fouled up.”

The “foul-up” predicted by Haley will come when there are dozens of craft in outer space, each one sending and receiving messages.

Then too, the UN’s legal director, Oscar Schächter, points out that with proper equipment a space station could broadcast radio and TV programs to every country in the world—a powerful propaganda weapon that would also interfere with local programs. “Clearly, some regulation is needed,” he says.

What do the Russians think?

Perhaps the most fascinating area of legal speculation about the space age revolves about the question: “Can an earth nation lay claim to the moon or any other heavenly body?” Here again, the opinion of the silent Russians, for the time being at least, means more than all other opinions combined. But legal figures in a dozen countries are soberly considering the problem in spite of the Soviet silence.

One of the most prolific spokesmen on the subject is Haley, of Washington, who is a member of the International Astronautical Federation and general counsel to the American Rocket Society. Haley, besides being president of a rocket manufacturing company, has also served as a lawyer to firms engaged in radio and tele-

vision broadcasting, commercial aviation and rocket propulsion. To him the question of occupying extra-terrestrial space has some immediacy because the Russians have announced their intention of sending a rocket to the moon and, later, a manned space ship.

“Possession of the moon is a critical matter,” he has observed, like many nonexperts. "Anyone who controls the moon, controls the earth.” The moon can be used as a base for destroying the earth —a mammoth, indestructible launching platform for nuclear weapons.” The moon-owning nation could enrich itself by exploiting the minerals known to exist there. Furthermore, it would have a tremendous advantage in exploring, and possibly occupying, other planets in outer space.

On the subject of claims to the moon, most lawyers, like Mankiewicz, say, “We don't know the answers.” However, because the issue may soon arise, they are busy studying existing international practices and rules about the occupation of new land. The great majority, like Dr. L. L. Oppenheim, of Cambridge University, have arrived at a concept as elementary as the concept of Champlain and Cortez: the acid test of occupation is the ability to hang onto and to administer the new territory.

Applying earthbound principles to the exploration of outer space, Oscar Schächter does not believe that the moon can be discovered. “It’s been seen by people of the world always,” he says. However, this only applies to the bright side of the moon: the dark side has never been seen. Thus, if the Russians were to send a satellite around the moon, capable of transmitting pictures by TV, it might constitute a claim of discovery under the traditional standards of claim-staking.

If the Russians place a rocket on the moon or land people there, Andrew Haley believes, they will be in a strong position—not only in fact, but in law— to lay claim to the whole satellite. Norman Mackenzie, of the University of British Columbia, disagrees. “The theory that landing would comprise possession is rubbish!” he insists. “If the Russians land on the moon it’s an interesting scientific fact — nothing more. They'd have to occupy it and demonstrate effective control.”

One of the ways of doing this, obviously, would be to keep other people off. However, Mackenzie doesn’t believe that occupation of the moon is likely to be a matter of conflict because of the many physical difficulties of survival there. "It will be like learning to live at the bottom of the sea," he says.

Some lawyers regard all discussion about possession of the moon as fanciful speculation. "It makes entertaining talk,” one lawyer told me, “but the laws will only be written after the matter has become a real issue.” A member of Canada's diplomatic corps with a background in international law, says, “Someone will land fifty miles away from the settlement of the moon pioneers. The two factions might settle the matter by force. Or they might decide to place the dispute in the hands of an international court or a conciliation board appointed for the purpose.” R. H. Mankiewicz sums up the simple pragmatic approach in this way: "If the Russians build homes on the moon and set up immigration and custom stations, they're owners of the moon. That’s a fact, not law. If someone kicks them off, they haven’t got possession. It’s as simple as that."

Does the UN own it?

To head off the possibility of wars on earth over the ownership of the moon, a strong sentiment exists among many statesmen and lawyers this side of the Iron Curtain to declare the moon—as well as other extra-terrestrial bodies—international common property under the jurisdiction of the UN. "Psychologically and emotionally, the moon has always belonged to everybody,” says Oscar Schächter. International co-operation, he points out, is desirable in the fields of scientific observation and exploration if man is to conquer space in the near future. Andrew Haley, an incorrigible idealist and optimist, favors the UN’s calling an immediate international conference for the purpose of proclaiming that "the moon belongs to no earthly government; that no nation would aggrandize itself from the moon; that the moon won’t be used for attacking the earth; and, finally, that any mineral or other resources of the moon belong to the UN."

Haley mentions exploitation of resources because scientists are fairly certain that the moon contains gold, silver, uranium and other minerals. As the resources of the earth decline, the material wealth of the moon and other extraterrestrial bodies may become increasingly important. In the absence of international agreements, some complex insoluble problems might arise. Haley displays a powerful imagination in giving examples of the sort of difficulty that might present itself. “Supposing,” he says, “that a South American country finds a meteor of pure iron and begins lowering it to earth. Then suppose that an Italian group, using stronger magnetic equipment, lures the meteor away and it lands on the Sahara desert. Who does the meteor belong to? The South Americans? The Italians? The people in Sahara on whose property it landed?” To avoid such enigmas, C. Wilfred Jenks would like to see the wealth of outer space exploited in an orderly manner, under the aegis of the UN, "on the basis of concessions, leases and licenses,” to various nations.

In blueprinting future law’s the air law-

yers have not overlooked the possibility that intelligent creatures may exist on other planets. To most laymen, their discussions on this aspect of space approach pure fantasy. “There may be legally organized societies in space,” says Jenks, "and it seems clear that, from the offset, we should make every effort to conduct our relationship with these people on the basis of law." But he doesn’t say whether it should be on the basis of their law or our law—a delicate point that underlines the complexity of the problem if it ever should arise.

Haley has already given a name to the body of law which would regulate the relationship between earthlings and spacemen. He calls it “metalaw," meaning “law for the entire universe.” One of the first articles in metalaw would pertain to our initial contact with spacemen. “We must rule,” says Haley, “that where there is reason to believe that life exists on a planet, no earth space ship may land without an invitation. We must also make sure that our landing won't injure the spacemen. And we must not set out to conquer.” Haley doesn’t tackle the real stickler: if we’re going to have a wellregulated relationship with the creatures from outer space, how' do we communicate with them?

Haley believes that if the spacemen are of superior intelligence, they will welcome us with open arms. However, if they are primitive creatures, through fear, they may attack us. "In this event," says Haley seriously, “we would be permitted to prevent them from harming us by purely protective means.” Since we know nothing about the physical and mental vigor of spacemen we must take extra precautions lest we harm them. They may be extremely sensitive and delicate creatures. “We should determine, for example, whether the following factors might not adversely affect them: our communication system, electromagnetic waves, light signaling, infra-red rays from heat, radiation from a nuclear process, man’s physical and mental properties, human germs, the impact of man’s ideas and customs.”

According to Haley, as it develops, metalaw may bear no resemblance whatsoever to earth law. He points out that our systems of laws have grown out of human nature—they’re based on our particular needs as human beings. Basically, the philosophy of our laws arc derived from the Golden Rule: “Do unto others as you would have them do unto you.” However, says Haley, since spacemen—if there are any—may possess an entirely different kind of nature, justice might not be done if we adhered to the Golden Rule. “It might happen,” he says, “that if we treated spacemen the w'ay we wanted them to treat us, it might very well mean their destruction." I he one principle of earth law' that Haley believes can be applied to spacemen is the concept of absolute equality.

Ultimately, Haley believes, there might be created on earth a single supreme authority to which all nations will surrender their sovereignty. This authority would act in co-operation with the supreme authorities of various lunar and planet communities. Their job would be to administer and enforce regulations pertaining to navigation, health, emigration, immigration and so on.

Forever the optimist, Haley says, “1 believe that the exploration and settlement of space will dignify and enrich man. It will solve his economic problems. It will make man more tolerant and compassionate by opening his eyes to the endless wonders and mysteries of creation.” So far the Russians still haven't cast their vote. ir