to the law of aviation inadmissible.

b) What legal rules apply to space vehicles in regions beyond the atmosphere?

In contrast to the traffic in airspace any application by way of analogy of aviation rules would be inadmissible for space vehicle traffic in the free territory beyond the atmosphere owing to the difference in the nature of this area. It would be equally wrong to infer from the past absence of special rules for space traffic, that space vehicles in the area beyond the atmosphere are exempt from any obligation to exercise proper care.

In almost every country we find recognized a so-called "obligation to contribute to traffic safety" imposing on anyone who introduces into traffic an object likely by its nature to endanger safety, the legal obligation to conduct himself in such a way that no one will suffer damage or be obstructed or molested unnecessarily. This obligation exists even in the absence of any special provisions. It is based on the general idea of "responsibility towards the community", accepted also in international law, according to which any person who creates a source of peril through using certain objects, has a responsibility to the public to see to it that no one is endangered by such use. 188 Of this principle, W. Jillinek has spoken quite rightly of a "categorical imperative established by international law."189

Thus anybody arranging space journeys, as well as any pilots of space vehicles will, in the absence of special provisions relating to space travel, be under an obligation to do whatever he can to avoid damage to third persons or things. A space vehicle is therefore by no means "legibus solutus" when travelling in the area beyond the atmosphere.

For example, prior to starting on a space journey, the ability of the vehicle and its crew to meet the requirements of their assignment will have to be tested so as to preclude

188. A. Meyer, supra note 178, at 25; further, on German law, e.g. JILLINEK, ADMINISTRATIVE LAW 427 (3d ed. 1948); GEIGEL, HAFTPFLICHTPROZESS 104 (5th ed.). As for other countries, see Riezler, Liability for Damage Caused by Things in English and French Law, 2 AIPR 567 (1931).

189. KUENTZEL, UNWRITTEN INTERNATIONAL LAW 5, n. 20a (1935); FRIEDRICH, THE LAW RELATING TO NEIGHBORS IN INTERNATIONAL LAW (disseration); Heidelberg, 1958 (1949); ACHTNICH, op. cit. supra note 52, at 120.

any charge of negligence in the event of damage. The pilot of a space vehicle will, in accordance with the universally accepted principle of "traffic safety", also be liable for damage caused to third parties on the earth or in the airspace by falling objects. The pilot will, in particular, have to see to it that any components, such as the burnt out stages of multistage rockets, which have been detached from the space vehicle, will reach the surface of the earth or the high seas without causing danger.

In the area beyond the atmosphere, destined to become man's sphere of activity one day, the universally accepted principle of showing the greatest possible consideration for the interests of one's fellow human beings will find an especially wide field of application.

Another question is the choice of law to apply on board space vehicles. The proper solution would seem to be to adopt the rules relating to aviation in the unrestricted airspace. As noted above, we would have to apply the "principle of nationality" to any legally relevant events occurring in the unrestricted airspace, in other words, above the high seas and territories unclaimed by any state. Thus the law of the country whose nationality the space vehicle bears (the law of the flag) will apply.

2. THE LEGAL TREATMENT TO BE APPLIED TO SPACE STATIONS (EARTH SATELLITES)

a) The legality of constructing space stations in the area beyond the atmosphere.

It has already been pointed out that the "Seadromes" may serve as legal models for any future space stations constructed in the area beyond the atmosphere.

Technically, space stations, by their very nature, are vastly different from seadromes. Space stations - with or without a propelling device would be perpetually in motion, while the seadromes were to be tied to certain fixed spots in the sea. Nevertheless, the legal problems which arose in connection with the seadromes are very similar to those likely to arise in the future with respect to the space stations beyond

the atmosphere.

The application of the legal concepts of seadromes to space stations beyond the atmosphere might be as follows: The freedom of the area beyond the atmosphere constitutes a valid legal basis for the establishment of space stations, just as the high seas did for the seadromes. Thus there can be no objection to the establishment of space stations in the free space beyond the atmosphere, just as there can be none to the construction of seadromes on the high seas.

The dispute over whether seadromes could be constructed for military purposes might repeat itself when space stations are constructed. Space stations may, no doubt, acquire considerable military importance. The question of whether any international agreements ought to be concluded in the future concerning them must ultimately be a political one, and it would serve no useful purpose to discuss it within the framework of this article. The solution of this and of the question whether the signatories to such an agreement would truly live up to their obligations, must be left to the future.

b) The legal treatment applicable to space stations after their construction in regions beyond the atmosphere.

The seadrome may once again serve as a model for dealing with the problems of the legal treatment applicable to space stations. As with the seadromes we are confronted with two questions: Can a state exercise its official authority over space stations; and should the space stations be equated with any other legal objects?

On the first question, we have already referred to the opinion that seadromes, as part of the sea, must conform to its legal nature. In other words, like the sea itself, they ought to be considered "res communes". This opinion was quite rightly rejected. The same considerations apply to space stations. If a state or a private person is authorized by international law to establish stations in free territory whether on the high seas or in regions beyond the atmosphere logically the process of construction should be considered the prime factor in determining what the legal treatment should be. If a space station, therefore, is constructed by a state or a private person on its behalf or under it protection, it would come under the exclusive jurisdiction of

that state. Only that state would have the right to administer the space station and to take all measures necessary for the maintenance of public order. Persons and things on the space station, and any legally relevant events occurring on the space station, would likewise come under the rule of its laws and no other.

If, however, a space station is constructed by private persons independently of their country of origin, such space station could of course not be joined ipso iure to the country whose nationals these private persons are, since from a legal point of view, a private person cannot create or acquire national territory on his own, as previously stated. Such space stations, like the seadromes, would be like privately discovered space stations unoccupied by any country and would have to be treated under international law like territories unclaimed by any state.

As stated, the "Comité juridique international de l'aviation", at its congress in Budapest in 1930, voiced the opinion that seadromes could be constructed only subject to the authority and responsibility of a state (irrespective of whether the state possessed a coastline or was landlocked). This demand is likely to be always met when space stations are built if only because the enormous cost of such a project would render it practically impossible for a private person to construct space stations without first obtaining the consent of his country.

Finally, the question will arise whether countries planning to construct space stations in the area beyond the atmosphere will be obliged to open these space stations to the general public. Principles applicable to seadromes may shed light on this question too. The free access to regions beyond the atmosphere does not force the conclusion that space stations are automatically available to everybody any more than such an inference could be drawn for seadromes from the freedom of the high seas. On the other hand space stations, too, should be ruled by the principle that a state has no right to discriminate arbitrarily against anybody, once it has opened a space station under its control to public use.

As to the second question, whether a space station ought to be deemed equivalent to a space vehicle or any other legal

object, certain answers may be suggested, as follows.

The only reason for equating space stations with space vehicles would be the fact that both are objects in motion. However, there is a fundamental difference in purpose between the two. The principle purpose of a space vehicle is to convey persons or goods, such purpose is not shared by the space station. The latter is a station designed to shelter space vehicles; it is not a public conveyance. A space station will probably also differ fundamentally from a space vehicle in outward shape. To equate the two would, therefore, be inadmissible just as it would be wrong to equate a space station with an "island".

Therefore the legal reasoning applicable to seadromes cannot be completely applied to space stations for legally, a seadrome is similar to a ship, but a space station would have to be considered sui generis.

F. CONCLUSIONS

It has been the object of this inquiry to submit to critical examination the legal problems likely to arise as our technology makes possible the opening up of the area beyond the atmosphere. Since space vehicles will be used to penetrate these regions, some of the legal problems posed by the laws of aviation will reappear in the area beyond the atmosphere. It seemed, therefore, appropriate to call this study "Air Law and Space".

The question of the probable application of the theories and concepts of aviation law to the area beyond the atmosphere necessitated a clarification and evaluation of the air law problems likely to be used for the purpose of comparison and to serve as a starting point before turning to the area beyond the atmosphere itself. Thus I dealt with the question of the legal nature of space and the answers given both by science and the existing laws of aviation.

We concluded that only the airspace above the high seas and regions outside the sovereignty of any country could be considered free territory. On the other hand, in respect to the airspace above national territories, both the theory of

33259 0-59-6