These include the legal status of unoccupied territory in the moon or other planets and satellites and of any natural resources of such territory which it may become possible to exploit.

ACQUISITION OF TERRITORY IN THE MOON AND ELSEWHERE IN

PLANETS AND SATELLITES

Space, in view of the basic astronomical facts concerning our constantly changing relationship to it, must be regarded as a res extra commercium. But what of unoccupied territory in the moon or in another plant or satellite? Is such territory capable of appropriation? If so, what kind of inchoate title can be claimed, and for how long, and what degree of effectiveness of occupation would be necessary to perfect the title? If all activities in space beyond the atmosphere were subject to an appropriate international jurisdiction, these questions would presumably not arise. One can conceive of the United Nations governing extra-mundane settlements, directly or by some special agency created for the purpose. The ideal arrangement would indeed appear to be that sovereignty over unoccupied territory in the moon or other planets or satellites should be regarded as vested exclusively in the United Nations. Failing such a solution, title to territory would have to be determined by applying the usual rules concerning discovery and occupation with any necessary adaptations,32 and problems analogous to those which arose during the partition of Africa, and even more closely analogous to those which have arisen more recently in the Antarctic,34 might well arise. Even if unoccupied territory in the moon or in another planet or satellite were to be regarded as capable of national appropriation, it should not therefore be regarded as incapable of international appropriation by the United Nations; a system under which some territory was nationally and some internationally appropriated would be quite conceivable. It might also be reasonable that any such territory which was nationally appropriated should be subject to the international trusteeship system. 35

NATURAL RESOURCES OF THE MOON AND OTHER PLANETS AND

SATELLITES

Upon the same hypotheses questions might also arise in regard to the legal status of the natural resources of the moon or of other planets and satellities. The view is sometimes advanced that these resources will become of substantial practical importance as the present resources of the earth are exhausted. If unoccupied territory in planets and satellites were nationally appropriated, the exploitation of the natural resources of such territory would of course be gov

32 Cf. Hill, Claims to Territory in International Law and Relations, 1944.

33 Lindley, The Acquisition and Government of Backward Territory in International Law, 1926. pp. 129-159. 34 Cf. Waldock, "Disputed Sovereignty in the Falkland Islands Dependencies," in 25 British Yearbook of International Law, 1948, pp. 311, 353, Dollot, "Le droit international des espaces polaires," in 75 Recueil des Cours, 1949 (II), pp. 121-195.

35 Such territory would presumably in any case be subject to the provisions of the Declaration regarding Non-Self-Governing Territories embodied in Chapter XI of the Charter of the United Nations and to the obligation to furnish certain information set forth therein, unless these are regarded as being subject to an implied limitation that they apply only to the earth and its atmosphere.

erned by the law of the country concerned, which might be the existing law relating to minerals, some adaptation thereof, or an entirely new law framed for the new circumstances. If such territory were governed by an international régime, international rules concerning the exploitation of its resources would be necessary. Analogies might perhaps be found in the land claims regulations annexed to the treaty concerning the Archipelago of Spitzbergen of February 9, 1920,36 or the mining regulations issued by Norway after consultation with the other parties in pursuance of that treaty; but in respect of mineral rights as of other matters a wholly fresh approach to problems largely novel in character may be necessary. It would seem desirable to start from the principle that title to the natural resources of the moon and of other planets and satellites should be regarded as vested in the United Nations and that any exploitation of such resources which may be possible should be on the basis of concessions, leases or licenses. from the United Nations.

COSMIC RAYS

Any such régime in respect of natural resources would not be applicable to cosmic rays,37 which present a different legal problem. In the event of it proving at any stage to be practicable and worth while to intercept and utilise cosmic rays in space, they would appear to be res nullius subject, like solar radiation on earth, to utilisation by anyone in a position to do so.38 Legal regulation of such utilisation for the protection of third parties might conceivably be necessary at some stage.

REMOTE PROBLEMS

From a speculative point of view, the problems which may arise in regard to the exploration and exploitation of space among the existing members of the community of international law do not exhaust the problems of international law which might at some stage arise in space. Problems might also arise in regard to the relationships between the existing community of international law and any legally organised communities which may be found to exist in other plants or satellites.39 These problems are, however, so wholly speculative in character that it would not be profitable to pursue them very far, even in the most exploratory terms. It is by no means certain, and may be improbable, that they will arise at any stage, and there appears to be no question of their arising in the earlier stages. We do not at present know whether anything equivalent to human life exists in other planets or satellites; still less, whether any organised societies with anything which we would recognise as a legal order exist there; still less, whether in any planet or satellite, or in any group of planets or satellites which already intercommunicate with each other, there exist separately organised political communities the mutual relationships of which with each other are governed by anything equivalent to international law as we know it. The likelihood of such communities being encountered in the more accessible planets and satellites appears to be remote. The most

36 League of Nations Series, p. 8.

37 Cf Millikan, Cosmic Rays, 1939.

as The same principle would apply to interstellar gas, which may be regarded as res nullius analogous to sea water, but it appears wildly improbable that this point could ever be of practical importance.

30 See in particular H. Spencer Jones, Life on Other Worlds, 1940.

we can usefully do at the present stage is to recognise that such problems may arise if and when the exploration of space reaches the stage of interplanetary flight and extra-mundane communities are encountered. In the latter event it seems clear that we should from the outset make every effort to conduct our relationships with them on the basis of law.

CONCLUSIONS

These illustrations of problems of international law which would seem likely to arise in the course of the exploration and exploitation of space are merely tentative indications of the type and range of questions which might arise and some of the most general of the considerations which it would seem desirable to take into account in envisaging their solution. The whole matter will be brought into much sharper focus as development proceeds, but meanwhile it is not premature to be giving some preliminary consideration to some of the questions which may arise. An international law which has hardly assimilated Copernicus and Galileo, still less Einstein and Rutherford, cannot cope with the problems of space in an age of atomic energy, electronics, and jet and rocket propulsion, and international lawyers must now show vision and resilience if they are to make a significant contribution to the solution of the problems which the skill of the rocket engineers is about to make imminent.

The following submissions have an immediate practical application and call for full official consideration as a matter of urgency:

a

1. Space beyond the atmosphere is a res extra commercium incapable by its nature of appropriation on behalf of any particular sovereignty.

2. It is most desirable that jurisdiction over activities in space beyond the atmosphere should be recognised to be vested in the United Nations and that legislative authority over activities beyond the atmosphere of the earth should be exercised by the General Assembly acting through or on the advice of an appropriately constituted body. If the political difficulties can be overcome, such an international solution of the problem of jurisdiction in space presents no insuperable legal difficulties.

3. Failing such an international solution of the problem of jurisdiction in space beyond the atmosphere, it will be necessary to determine such jurisdiction on the basis of appropriate criteria inspired by analogies drawn from maritime and aviation law and to develop common international rules and standards governing the wide range of problems which would arise.

4. Rules governing the extent to which, and manner in which, national authorities may protect themselves against interference from space beyond the atmosphere with matters within their territorial jurisdiction or interfere, by electronic or other means, with activities in space for the purpose of making such protection effective, or for other reasons, will be necessary.

The following submissions relate to questions which would arise, if at all, only at a much later stage; they might, however, conceivably arise in respect of the moon in the course of the present century:

5. It is most desirable that sovereignty over unoccupied territory in the moon or in other planets or satellites should be re

garded as vested exclusively in the United Nations. Failing this, title to territory would have to be determined by applying the usual rules concerning discovery and occupation, adapted as necessary, and problems of great difficulty, involving serious danger of acute international tension, would arise.

6. It is most desirable that title to any natural resources of the moon or of other planets or satellites which may be capable of utilisation should be regarded as vested in the United Nations and that any exploitation of such resources which may be possible should be on the basis of concessions, leases or licences from the United Nations; this principle would not apply to cosmic rays intercepted in space which, if capable of any human utilisation, are res nullius which may be utilised, subject to any rules agreed for the protection of third parties, by anyone in a position to do

So.

The problems which may arise in regard to any relationships which may be developed between the existing community of international law and any legally organised communities which may be found to exist in other planets or satellites are wholly speculative in character, but it is important that in the event of any such relationships developing they should be conducted from the outset on the basis of law.

THE AERIAL INSPECTION PLAN AND AIR SPACE

SOVEREIGNTY

By Raymond W. Young*

President Eisenhower's plan for disarmament was one of the most auspicious proposals for the promotion of world peace made at the Geneva Conference of the "Big Four" in the summer of 1955.1 The proposals, in substance, provide for an exchange of military blueprints and the mutual privilege of aerial reconnaissance by the two great atomic powers, the United States and the Soviet Union. The "open air" plan, as the proposals have come to be known, has given rise to renewed discussion of the perennial problem of the legal status of the air space.

A review of the subject will emphasize the cardinal influence of the factor of national security, and to a lesser degree, the factor of national economy, in predisposing the States of the world to espouse the sovereignty doctrine. It is the purpose of this paper to outline the aerial inspection plan and to evaluate the impact it will have on the historic theories of air space sovereignty which have evolved from the major international conferences on air law.

DISARMAMENT THROUGH AERIAL INSPECTION PLAN

The foreboding universal fear of the consequences of nuclear warfare has accelerated national and international efforts to control armaments. Shortly after World War II the General Assembly of the United Nations called upon the Security Council to formulate practical measures for the regulation and reduction of armaments and armed forces. The ten years following the cessation of hostilities witnessed futile attempts to break through a tension-producing deadlock. During that time the problem of effective disarmament assumed new dimensions with the advent of newly-discovered destructive powers as well as with the phenomenal technological inventions in the field of aviation. Alongside the geographic, demographic, economic and psychological elements as sources of national power, there

The

*Reprinted from The George Washington Law Review, April 1956, pp. 565–589. author was at that time assistant editor of the Review and is now practicing law in New Jersey. 1U. S. Dep't. of State Pub. No. 6046, 57-58, The Geneva Conference of Heads of Government (1955). 2 Mutual Inspection for Peace: The Gateway to Disarmament, Office of the Special Assistant to the President for Disarmament, 2 (1955). It is the belief of the United States that once the plan is in operation between the Soviet Union and this country, it could then be extended to other countries.

Disarmament Resolution, December 14, 1946, Yearbook of the United Nations, 194647 142-43 (1947).

Frye, Disarmament, Headline Series, Foreign Policy Association, No. 113, 7 (1955); see Wilson, Air Power for Peace (1945); the Advisory Committee on the Aircraft Industry of the National Planning Association concluded that the atomic bomb must be regarded as an instrument of air power and not a substitute for it. National Policy for Aviation, Planning Pamphlets Nos. 51 and 52, ix (1946); see also Urey, Atomic Energy, Aviation and Society, 1 Air Affairs 21 (1946).