tive. Such decisions as these make the effective-control concept a good deal more than a point of academic interest. They make its eventual extension to space a distinct possibility.

The trouble with the arbitrary-limitation idea seems to be that it lacks realism. Sovereigns today still control to the extent of their ability, if it is in their interests to do so. Demonstrations in point include the recent activity of the Soviets in Hungary and Poland, plus that of Britain and France in Egypt. In short, arbitrary-limitation seems to overlook the fact that space law, like international law, may well develop in accordance with the relative power of nations rather than through master-planning.

The trouble with effective-control is that it springs from poor theory. It limits sovereignty only according to power. Nations with the capability to do so could blast from the skies any object passing overhead, regardless of its purpose. Conversely, other nations could do nothing at all about spacecraft or objects crossing over them. In addition, when we reflect that the earth is a sphere, it becomes obvious that stretching the legal borders of any nation indefinitely into space produces weird results. Such extended borders would not be parallel; they would diverge in space as a "hypothetically infinite funnel of dominion"-something like an upside-down cone projected outward from the earth.

Practical problems of near-space are bound to be more complicated than those connected with the high seas. Proof of their differing severity, for example, shows up in the state of the law regarding rights of innocent passage. "Innocent passage," in international law, is a doctrine which protects ships which have strayed, been blown, or otherwise forced into territorial waters of nations where they did not originally intend to go. In effect, it permits such vessels to go about their business without interference or incurring liability. It also extends to ships which enter the territorial waters of other nations, intentionally and on peaceful missions, so long as they observe the laws and regulations of such countries.

At the 1919 Paris Convention the innocent passage doctrine was extended to aircraft. However, in subsequent years the right was so hedged with exceptions that it became virtually useless. All nations felt nervous about foreign aircraft going overhead without permission. World War II, with its great emphasis on bombing, dispelled what was left of the idea. By 1944, when the Chicago Convention was drafted, nobody tried seriously to incorporate into it rights of innocent passage or similar transit.

In brief, the innocent passage rule does not exist on a world scale so far as aircraft are concerned. The many "off-course" planes shot down during the East-West "cold war" of the past decade bear eloquent testimony.

RULES FOR THE FUTURE

This brings us to the critical question. What rules for the utilization of outer space are most likely to develop?

It is widely agreed by international lawyers that the United States, by assuming its present prominent role in the satellite program of the International Geophysical Year, has put the world on notice of its understanding that all space at and beyond the altitude of satellite operation is "free" space. That is, outer space from a range of 300

miles on, in the American view, is not subject to control in any degree by a single nation. The fact that the United States has not attempted to secure rights of passage for its satellite from other nations is taken as proof that this country does not believe such permission is legally needed.

On the other hand, this does not mean that the United States has fixed 300 miles or any other particular altitude as its conception of the beginning of outer space. The exact line of departure has not been suggested by the American government, so it may well eventuate somewhere nearer the earth's surface. It might be 200 miles, 100 miles, or even forty miles.

The point is that the United States, by its present acts, seems theoretically precluded from later attempting to establish some distance farther away than 300 miles as the beginning of "free" or outer space.

WHAT THE EXPERTS BELIEVE

Meanwhile, the President has already asserted his belief that some "reliable" international agreement for controlling missiles in outer space should be sought.

Here is what some of the other leading thinkers in the field are saying:

Oscar Schachter, Director of the General Legal Division of the United Nations:

Any attempt to extend national territory higher than the airspace is bound to involve difficulties. *** Why not, then, fix the limit at the upper boundary of airspace and no higher? Beyond the airspace we would apply a system similar to that followed on the high seas. * * * A legal order would be developed on the principle of free and equal use, with the object of furthering scientific research and investigations. It seems to me that a development of this kind would dramatically emphasize the common heritage of humanity and would serve, perhaps significantly, to strengthen the sense of international community which is so vital to the development of a peaceful and secure world order.

John Cobb Cooper suggests the following:

Reaffirm the Chicago Convention, giving the subjacent state full sovereignty in the areas of atmospheric space above it, up to the height where ‘aircraft' as now defined, may be operated, such areas to be designated “territorial space."

Extend the sovereignty of the subjacent state upward to 300 miles above the earth's surface, designating this second area as “contiguous space", and provide for a right of transit through this zone for all nonmilitary flight instrumentalities when ascending or descending.

Accept the principle that all space above "contiguous space" is free for the passage of all instrumentalities.

Andrew G. Haley, General Counsel for the American Rocket Society, former counsel for the Federal Communications Commission and legal advisor to the International Telecommunications Conference, takes the position that the failure of any nation to object to the satellite program of the International Geophysical Year amounts to a tacit world agreement to treat space at the announced satellite distance as "free." He suggests that this agreement has had actual legal impact and will make difficult any future attempts to assert rights in space above the atmosphere.

C. Wilfred Jenks, Associate of the Institute of International Law, asserts that the astronomical and physical facts of the universe make

it impossible for any segment of earth to project its political or legal rights above the atmosphere. And he adds that only those activities "within the atmosphere of the earth would appear to be susceptible of the degree of control similar in general nature to that which can be exercised in territorial waters or over a wider maritime frontier belt ***"

PRACTICE VS. THEORY

At present there is no way of knowing if any nation or group of nations is disposed of adopt a liberal view of "free" space, officially, in the near future.

There can be little doubt that most countries, if faced with an immediate threat, would probably react in such a way as to give strength to the advocates of the effective-control doctrine. They would probably assert complete sovereignty "upwards" to whatever height the nature of the threat demanded.

At least, this has been the historical reaction of neutral nations when faced with the problem during a war. In the early days of World War II, both Holland and Belgium took vigorous action to keep belligerent aircraft from passing over their territories. They scoffed at German arguments based on the proposition that any air machine flying higher than three miles was as free to go where it pleased as an ocean-going vessel sailing beyond the territorial limit of one marine league.

Sweden and Switzerland behaved similarly during World War II. They not only interned downed aviators and lost aircraft, but they actually sent their own forces into action to stop planes from flying over them.

Nor is there any guarantee that the United States position would be any different. What happens, for instance, if Russian-launched satellites begin photographing the United States with some futuristic "souped up" camera capable of recording minute details from extremely high altitudes? American law forbids the photographing of certain government installations from above, regardless of height. Would Russian satellites be in "free" space if that situation developed? Yet, all in all, a positive element can be detected in the current confusion.

It rests with the observation that much of the dissension among authoritative parties, at least so far as the United States is concerned, is directed to details rather than broad issues. At the same time, and in spite of the way international law has developed in the past, in spite of the fluid state of current law, there appears to be a surprising unity of thought in regard to certain principles that ought to apply.

It is a unity demonstrated by the recent acts and attitudes of American officials as to policy-and by ranking logicians as to law. It is a unity which, in effect, seems to say:

The doctrines forged for the sea by Decatur are the doctrines best suited for space!

ASPECTS OF THE LAW OF SPACE 1

By Michael Aaronson

In itself the announcement that the Soviet Union had launched a satellite into an orbit came as no great surprise. The second half of the twentieth century bears a similar relationship to the astronaut as the end of the nineteenth century did to the aeronaut. The major difference is that the success of the aeronaut was realised through the medium of private enterprise whereas that of the astronaut has been, and will continue to be, achieved through the direct medium of state undertakings.

As early as December, 1948, the United States Department of Defence revealed that the United States Air Force was conducting a new series of projects which included the establishment of giant. manned stations in space. On 24th February, 1949, it was announced from Washington that a two-stage rocket, known as the W. A. C. Corporal, had, at a speed of 5,100 miles per hour, reached an altitude of just over 250 miles in the atmosphere over the United States. Subsequently a spate of interesting books and articles in the most reputable of journals appeared in the United States. Among other things, the possibility of using the moon as a bombing platform against any aggressor state was seriously mooted.

In September, 1954, a Russian rocket engineer announced that Soviet scientists were projecting rockets to an altitude of 240 miles into the atmosphere above U. S. S. R. territory. On 8th September, 1955, it was reported that Soviet scientists were working on plans to discharge a mobile laboratory onto the moon from an unpiloted rocket ship directed from the earth by remote control. Apart from indicating that valuable information concerning the moon's surface will be obtained, the Soviet Union has refrained from announcing the purpose of the exercise. Nevertheless, according to The Times (8th September, 1955), the U. S. S. R. had by then become a serious contender in the race to the moon. Last week Soviet scientists reiterated their intention to investigate this project in the near future.

It appears that the initial Russian proposal to reach the moon differs from that so far published by the United States in its method of approach. The publicised American proposal aims at establishing a manned station in space at about 1,075 miles above the earth's surface which would travel around the earth at a permanent velocity of about 15,840 miles per hour. From this manned space station it was stated that manned space ships would be launched towards the moon with the object of effecting a landing on that planet. The reported Russian plan is to direct the whole operation by means of remote control from the earth's surface. The mobile laboratory planned for pro

1 Reprinted from The Law Times (London) Oct. 25, 1957, pp. 219–221. Mr. Aaronson is a British barrister.

jection onto the moon from the unpiloted rocket would be controlled from Soviet territory and would televise information concerning the moon's surface back to earth.

In 1956 the United States reported to the Special Committee of the International Geophysical Year that it intended to launch an earth satellite (International Union of Geodesy and Geophysics, News Letter, March, 1956, p. 77). In the same year the U. S. S. R. announced a similar intention. In October, 1957, the satellite was indeed launched by the U. S. S. R., though not in conformity with the rules laid down by the special committee of the International Geophysical Year (see News Letter, sup., 1955 p. 179, 1956 p. 43).

Whether or not a landing of one sort or the other will be effected on the moon in the immediate future, it must now be apparent, without reading Alice in Wonderland, that developments designed to explore outer space have gone far beyond the realms of science fiction. Many new situations may be expected to arise. Unless it is proposed to drift into a state of international anarchy, they will have to be resolved within the framework of the constitution of international society established after the second world war. In this task the international law of the twentieth century will have to play its appropriate role. It is logical and reasonable that this should be the case, for "international law, like law in general, has the object of assuring the co-existence of different interests which are worthy of legal protection:" per Huber, Arbitrator, Permanent Court of Arbitration, Arbitral Award in the Island of Palmas Case (1928) (Scott, Hague Court Reports 1932, p. 130).

If the above principle is accepted as a basic premise of twentieth century international law, it follows that three universal principles of air and space law will have to be formulated. As matters stand the International Civil Aviation Organisation is not the appropriate forum, since the U. S. S. R. is not a member. However, there is nothing to prevent I. C. A. O. from convening a special conference for this purpose which can be attended by non-members. A precedent for this procedure was created by the special conference convened by I. C. A. O. at the Hague in 1955, where members and non-members of the organisation, including the U. S. S. R., having a common interest, met and agreed a Protocol designed to amend the Warsaw Convention, 1929.

The three principles of air and space law that will have to be discussed are the altitude of a nation's territorial sovereignty, the rules of navigation appertaining to travel in space and the law relating to "discovery" of planetary bodies. By the word "discovery" is meant more than the mere sighting or the accidental encountering of previously unknown territory. In that sense the moon or other known planets would not be "discovered." In this context the term “discovery" denotes a purposeful act of exploration or navigation accompanied by a visual apprehension, a landing or some other act marking or recording such visit, but not acts expressive of possession. (See Keller, Lissitzyn, and Mann, Creation of Rights of Sovereignty through Symbolic Acts, 1400-1800, 1938.) It will also be necessary for the conference to determine a competent international forum to decide these matters in the future as well as the method whereby such decisions may become expressions of accepted rules of international law.