of at least 250 miles (400 kilometers) above the surface of the earth. This rocket passed far above the region which can, under any theory, be described as "airspace." The question is: Did it pass out of the territory of the state below when it left the airspace, and reenter that territory on returning; or was it at all times within the territory of the state below?

Before even suggesting an answer it is necessary to consider very briefly certain of the scientific views now generally held as to what constitutes the earth's atmosphere. This atmosphere is usually described as constituting four gaseous layers known as the troposphere, stratosphere, ionosphere, and exosphere. The troposphere is next the earth and the exosphere is the far distant region which gradually merges into outer space. The "airspace" is part of the lower atmosphere region. The troposphere extents upward about 54,000 feet (16,200 meters) at the equator, and 28,000 feet (8,400 meters) at the poles. It contains about three-fourths in weight of the gases composing the earth's atmosphere, and is characterized by continually decreasing temperatures with increase of altitude. The stratosphere extends from the upper level of the troposphere to about 60 or 70 miles (100 or 115 kilometers) above the earth's surface. It contains slightly less than one-fourth in weight of the earth's atmosphere, is characterized by constant temperature of about 67° F. (20° C.), then decreasing again to about - 28° F. - 33° C.).

The ionosphere extends from the upper levels of the stratosphere to approximately 400 miles (640 kilometers) above the surface of the earth. It is said to be characterized by the existence of what have been termed by some authors as "free electrical discharges." The temperature is estimated to increase steadily up to approximately 4,000° F. (2,200° C.).

The exosphere is the fringe area beyond the ionosphere in which the density of the gaseous atmosphere is even less, and is supposedly characterized by a uniform temperature of approximately 4,000° F. (2,200° C.).

It will be seen from the foregoing that the rocket which reached 250 miles (400 kilometers) above the surface of the earth was high up in the ionosphere. It was far past any region that could be termed "airspace." It is generally believed that above 60 miles beyond the earth's surface (approximately 100 kilometers) what we would term as a vacuum exists and that all of the aerodynamic features of flight which result in the lift of a normal type of aircraft have disappeared. It may be recalled in this connection that no airplane has ever been flown more than approximately 60,000 feet above the surface, sounding balloons have probably reached an altitude of 120,000 feet-both of these distances being far below the theoretical absolute outside limit of what might be termed "airspace."

Scientific investigation and progress in known rocket flights have therefore demonstrated that none of the international procedure set up in the Paris and Chicago Conventions applies in a very large percentage of the region to which these rockets have already reached. Future scientific progress makes the problem even more difficult. Rockets now in use are leaving the earth's surface at speeds of at least 5,000 miles per hour (8,000 kilometers). It has been estimated that if this speed can be increased to approximately 25,000 miles

per hours (40,000 kilometers) at the top of the atmosphere, the power can then be shut off and the rocket would continue moving upward indefinitely. Certain scientists believe that these speeds can be attained with fuels now available, although at very great costs; others believe that new methods of propulsion may be required. One of my friends, a well-known astronomer, has indicated to me that the point at which such a rocket would leave the earth's area of attraction and pass under the predominance of the sun would be approximately 161,000 miles (256,000 kilometers) above the earth's surface. It is well to bear that figure in mind because if we hold to the old classic legal theory, as stated by Westlake, that a state must have sovereignty as high up into space as necessary to protect itself from "falling bodies, then perhaps the state's territory is 161,000 miles in height.

But the problem is even more complicated than as just indicated. If a rocket or other man-controlled missile can take off from the earth with a speed of approximately 17,500 miles an hour (26,400 kilometers), it will be able to proceed upward for several hundred miles and could then be deflected off its course so as to be aimed somewhat parallel to the surface of the earth, the power could be turned off, and the rocket would continue on a course around the earth as its momentum would approximately balance the earth's attraction. It would become an artificial satellite. From the international lawyer's point of view the question then arises: Does such an artificial satellite, flying several times per day around the earth and passing far above the surface territories of many states, enter and leave the territory of each of such states when immediately above their surface boundaries? If we accept the theory that the territory of the state extends as far upward into space, even though that space be a vacuum, as required to prevent the entry of manmade activity which may result in injury to persons and property on the surface of the state, then we must assume that such a satellite is violating the sovereignty of every state below which has not consented in advance to its passage. There are scientists who believe that such a satellite can and will be constructed before many years have passed.

It is obvious that it is the duty of the trained jurist to suggest an answer to these problems. It may be that a new international convention is required which will include some sort of agreed international limitation on the extent to which states will engage in high altitude flight somewhat similar to article 8 of the Chicago Convention which provides that no aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a contracting state without special authorization by that state.

In the absence of such a new convention, basic legal theories must be reexamined and the practical questions at issue must be understood. In the first place it is obvious that we must agree that there is an upper boundary in space to the territory of the subjacent state. Under no possible theory can it be said that a state can exercise sovereign rights in outer space beyond the region of the earth's attraction. The arguments for state sovereignty in space have always gone back to the proposition that it is both the right and the duty of the state to protect itself and that on no other basis can such protection be considered adequate except that it have the right to control, as part of its territory, these regions above it which, if used by other

states, may bring damage and loss to persons and property on the state below. Carrying this old rule to its extreme, the outer boundary of the state cannot be further than the point where the earth's attraction will govern the movement of an object in space so that such object will "fall" onto the earth.

On the other hand, this boundary cannot be lower than the upper limit of the airspace. The rule of international law-that the territory of the subjacent state includes at least the region above it known as airspace-need not be challenged. In other words, it would appear that the upper boundary of the state's territory lies at a point between the upper limit of the airspace and the upper limit of the earth's attraction. Somewhere in this vast intervening region the rights of the state below cease to exist as against other states.

Certain jurists have insisted that the territory of a state is limited by the ability of that state to make its law effective. This is a harsh rule when applied to sovereignty in space. The richest and most powerful states now have means through high altitude rockets to control more or less effectively the airspace over their surface territories. But the weaker states have no such power. Can we be said to live in such a world where the physical power at any one time of any particular state determines its international right to consider the region above its surface territories as part of its national territory? I may say here that my own belief is and has always been that if the rule of effectiveness is to be applied to determine the limit of state territory in space, then the rule should be that every state, no matter how small or how weak, as a state or equal sovereignty with every other state, has and should be admitted to have territorial rights upward above its surface territories as high as the rights of every other state no matter how powerful.

Perhaps the rule should be, in the absence of international agreement, that the territory of every state extends upward as far into space as it is physically and scientifically possible for any one state to control the regions of space directly above it. In considering the possibility of adopting such a rule as this as part of international law, its limitations must be understood. The enormous distances involved must not be forgotten. Assuming that a state has acquired the use of a rocket that will leave the earth at the suggested speed of 25,000 miles per hour, it must be remembered that as it moves upward it will be continually slowed by the earth's pull. Therefore it would take a rocket traveling at even this tremendous velocity well over 6 hours to reach the theoretical distance of 161,000 miles beyond the earth's surface, at which point it enters into the area where the sun's attraction begins to predominate.

By the time that the rocket reached this far-distant region, for the purpose of policing or controlling its use by other states, the rocket may have itself passed through the theoretical territory of several states. It must be recalled that the earth itself is rotating. If this rocket is driven directly upward, it may not be directly over the territory of the state which fired it for a very long period. Any theoretical possibility of a state controlling far-distant regions in space is absolutely out of the question. I am convinced that we must abandon the theory that the state has the right to claim territory out into space as far as the earth's attraction extends, and that we must admit some

such reasonable rules as I have suggested above-namely, that at any particular time the territory of each state extends upward into space as far as then scientific progress of any state in the international community permits such state to control space above it.

Frankly, this is not put forward as a final solution. It is realized that it leaves open such vital questions as to what extent of control is contemplated. It also leaves open the question of by what means an international determination will be made of the ability of the most powerful State to extend its control into outer space. I could argue at forceful and great length against the solution suggested. In its favor I can only say that it is worthy of consideration; that it provides the basis for a fairly livable world in which the weak State is not at the mercy of the strong. The mere suggestion of the rule, above all else, shows the gravity of the problem and the need for an

answer.

For much of the data as to the scientific characteristics of the upper atmosphere, the author is greatly indebted to the article and chart entitled "The Earth's Atmosphere," by Howard E. Roberts, Aeronautical Engineering Review, vol. 8, October 1949, pp. 18-31.

P

WHO OWNS THE UNIVERSE?

By Oscar Schachter 1

We have all heard about attempts to sell real estate on the moon and have laughed at the poor suckers who bit. Indeed, to say that someone wants the moon means simply that he wants the impossible. But now that scientists have shown that man can conquer space and that new worlds lie within his reach, the question of "owning" the moon and the planets no longer seems to be such a joke. Today, the question is not at all farfetched and, in fact, may well have important consequences for all of us.

Of course, the real issue is not whether private individuals may sell real estate on the moon or go into business outside of the earth. The serious question here, as in so many aspects of life today, concerns national governments and their respective rights and powers. Will these governments claim "ownership" (or, more correctly, sovereignty) of the moon and other celestial bodies, just as today claims are being made to the barren wastes of the Antarctic? Will there be national rivalry to plant the Stars and Stripes, the Union Jack, and the Hammer and Sickle far off in space, so that the governments can then assert exclusive control and keep others away?

And what of rocket ships and space stations? What rules will govern them and, most important, will they be free to move about, laden with weapons of mass destruction, high above peaceful nations? In this time of international tension, it may not be too soon to think about these questions.

Where can one find principles and precedents to answer these problems? Interestingly enough, we have to go back four centuries, to the great age of exploration and conquest, when Columbus, Magellan, Vasco da Gama, and the Cabots found and claimed new worlds for their royal sovereigns. It was these colorful adventurers, hunting for treasure and glory, who set the scene for the development of new legal principles-indeed, of the whole new system of international law that was to govern the relations between independent nations for centuries thereafter. The reason for this was that the discovery of these new territories immediately presented political and legal issues. The great maritime powers of that day, Spain and Portugal, had to find a method of settling their claims to avoid war. With the advent of British seapower, further adjustments had to be made. There was the obvious problem of deciding who was to exercise sovereignty over the new areas. (The lawyers referred to these regions as "terra nullius"-that is, land which belonged to no one.) Was it enough that the navigators made the initial discovery and then

1 Reprinted from the book Across the Space Frontier (edited by Cornelius Ryan) by permission of the publishers, The Viking Press. Copyright 1952, by The Crowell-Collier Publishing Co. Mr. Schachter, Deputy Director, Legal Department, United Nations, is a recognized authority on international law.