ploitation, bringing benefits of unimagined value or disasters of great magnitude. No matter what fears or hopes arise, astronautics cannot be limited. Earthbound man stands on the threshold of a new age of discovery. With the development of space-flight exploration this new science can and should afford a greater understanding and cohesion to our earthly nations as man realizes his insignificance within the Universe.

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INTERNATIONAL LAW AND ACTIVITIES IN SPACE1

By C. Wilfred Jenks, LL. D.2

3

In recent years the possibility that the exploration and exploitation of space may become a reality during the next few decades has attracted an increasing measure of attention from responsible scientists and engineers specialising in astronautics and electronics. The matter has passed far beyond the stage of imaginative fiction and a considerable literature, both technical and popular, on its scientific and engineering aspects has developed rapidly. We are soberly assured by leading rocket engineers, with every appearance of scientific authority, that we are upon the verge of developments which will result in instrument-bearing missiles coasting in space in the orbit of the earth for limited periods, recording electronically scientific information of high value, and relaying such information to earth stations by radio and television; that when the problem of providing for the return of such missiles to the earth has been solved these developments will prepare the way for manned space stations coasting in the orbit of the earth for prolonged or indefinite periods, which would be used as bases for astronomical and physical research (including research in cosmic rays), for meteorological information (including the provision of navigation and air safety meteorological services), for furnishing a fully reliable radio-communication and television system between all points on the earth, for certain types of medical treatment, and for the refuelling of space ships; and that when well-organised space stations exist experimental flights to the moon

1 Reprinted from International and Comparative Law Quarterly, Jan. 1956, pp. 99114. Mr. Jenks is an Assistant Director General of the International Labour Office at Geneva, and an associate of the Institute of International Law.

conclusions.

2 I am greatly indebted to Professor F. J. M. Stratton, of Gonville and Caius College, Cambridge, formerly Professor of Astrophysics, Cambridge University, Secretary of the International Astronomical Union and President of the Royal Astronomical Society, for having read this paper from an astronomical point of view and made a number of suggestions; he has, of course, no responsibility for the views expressed and 3 The possibility of space travel fascinated one of the greatest astronomers of all time over three centuries ago (Kepler, Somnium, 1634) and, while later astronomers became more sceptical as the difficulties involved were more fully realised, it has been a favourite theme of imaginative writers from Lucian of Samos (True History, A. D. 160), Cyrano de Bergerac (Voyage to the Moon and the Sun, 1656), and Voltaire (Micromegas, 1752) to Jules Verne (From the Earth to the Moon, 1865) and H. G. Wells (The First Men in the Moon, 1901); see also Godwin, Man in the Moon, 1638; Wilkins. A Discourse Concerning a New World, 1640; Atterly, Voyage to the Moon, 1827. 4 See, for instance, Goddard, A method of Reaching Extreme Altitudes, 1919. Rockets, 1946, Rocket Development, 1948; Oberth. The Rocket in Planetary Space, 1923, Wege Zur Raumschiffahrt (The Way to Space Travel), 1929; Esnault-Pelterie, L'astronautique, 1930, L'astronautique complément, 1935: Clarke, Interplanetary Flight, 1950, The Exploration of Space, 1951: Gatland, Development of the Guided Missile, 1952; Gatland and Kunesch. Space Travel, 1953: Kooy and Uytenbogaart, Ballistics of the Future, 1946: Ley, Rockets, Missiles and Space Travel, 1951; Ley and Bonnestal. The Conquest of Space, 1950; Pendray, The Coming Age of Rocket Power; Moore, Guide to the Moon, 1953. Guide to the Planets, 1955: Ryan (ed.). Across the Space Frontier, 1952; Sutton, Rocket Propulsion Elements, 1949; Vaeth, 200 Miles Up, 1951; Weyl, Guided Missiles. See also the following periodicals: Journal of the American Rocket Society, Journal of the British Interplanetary Society, Weltraumfahrt. Goddard and Oberth are the classical pioneer writers: Clarke, The Exploration of Space, is perhaps the most convenient popular account; Ley, Rockets, Missiles and Space Travel, contains a full bibliography

in the first instance and, though probably at a much later stage, to the nearer planets can be envisaged.

The first stage in this programme now appears to be passing into the phase of action. On July 29, 1955, it was announced officially from the White House on behalf of President Eisenhower that in 1957-1958 the United States will launch small space satellites, probably instrument-bearing, which will circle the earth in 90 minutes at a height of 300 miles. On August 3, 1955, the Royal Society announced a British research programme for the exploration of the earth's upper atmosphere by the use of high-altitude rockets to be designed, supplied and fired by the Ministry of Supply. The Soviet Academy of Sciences had previously, on April 15, 1955, announced the establishment of a special commission for interplanetary communication entrusted with the creation at an early date of a remote control laboratory to circle the earth as a satellite and establish opportunities for observation of a hitherto inaccessible character." No laymen can hope to evaluate the reasonableness of these speculations and plans; the distances and speeds of motion of the astral bodies, and the difficulties presented by their varied temperatures and gravitational forces and by our inadequate knowledge of their atmospheres and structural stability, suggest caution in regard to both the immediacy and the ultimate practicability of the later stages of this programme. In the light of the developments which have already occurred in aeronautics, rocket propulsion and electronics it would, however, be foolhardy to dismiss any part of the programme as fantastic, and the veil of military security which at present necessarily surrounds much of current research and experiment on these subjects at White Sands (U. S. A.), Woomera (Australia) and elsewhere, makes it probable that in some respects at least the knowledge at present generally available underestimates rather than overestimates the possibilities of the earlier stages of the programme and the rate at which they are likely to materialise.

IMPACT OF EXPLORATION AND EXPLOITATION OF SPACE ON INTERNATIONAL LAW

In these circumstances, it is not premature for international lawyers to give some preliminary consideration to the problems which will confront them as a matter of urgency if the current efforts of scientists and engineers specialising in astronautics and electronics should suddenly achieve a dramatic success comparable in the range and speed of its repercussions to the explosion of the first atomic bomb. While such preliminary examination must necessarily be highly speculative in character, the time factor may not allow of a leisurely evaluation of the problems which will arise when their nature has become clearer. Aeronautics and many of the developments which have already occurred in the field of electronics took international law by surprise and, despite the support of the Institute of International Law on the initiative of Fauchille, the attempts of juridical speculation to devise

New York Times, July 30, 1955, International Edition, pp. 1, 4 and 5.

The Times, August 4, 1955, p. 6.

Ibid., August 1, 1955, p. 6, col. 1.

Annuaire de l'Institut de Droit international, édition abrégée, Vol. 5, 1906-1911, p. 1305; and see the sketch of Fauchille's part in the matter in de Lapradelle, Maitres et Doctrine-du Droit des Gens, 2nd ed., 1950, pp. 291–299.

a sound basis for an adequate body of law on the subject were undertaken too late, and swept aside too abruptly by the impact of the First World War, to exercise any significant influence on the course of development. While it is healthy that the evolution of the law should follow rather than anticipate that of life, there are circumstances in which the possibility of developing the law on sound principles depends primarily on an initiative being taken in the matter before de facto situations have crystallised too far. The exploration and exploitation of space may proceed as slowly as the course of polar exploration or the conquest of Everest; they may, however, develop as rapidly as the utilisation of atomic energy,10 or of rocket 11 propulsion. It is wise to be prepared for either eventuality. Law and policy on the subject will necessarily interact upon each other from the earliest stages of development, and the future of the law on the matter, in addition to being profoundly influenced by, may also exercise some influence upon, the general course of international politics. It may well be indeed that one of President Eisenhower's reasons for making so early an announcement was to minimise the danger that space rivalry may become a new element in international tension. One of the difficulties of the matter is, of course, that in general international lawyers have little or no knowledge of or interest in astronomy, and astronomers, astro-physicists and rocket engineers little or no knowledge of, interest in, or perhaps even belief in, international law. Contemporary astronomy and astrophysics are so technical, and are developing so rapidly,12 that it is difficult for the international lawyer either to be certain that he has understood the relevant scientific data or to distinguish accepted from contested views. Happily, there appears to be a minimum of scientific controversy in respect of the matters directly relevant to the legal problems which may become acute in the earliest stages of the development of instrument-bearing missiles coasting in space.

IMMEDIATE PROBLEMS-LEGAL STATUS OF SPACE

The first such problem is that of the legal status of space, which it is reported has already been given some preliminary consideration by the State Department in connection with the United States space satellites project.13 The immediate problem relates only to the zone used by space satellites coasting in the orbit of the earth, but it would seem advisable to test any principles which may be suggested in respect of this zone by their possible applicability further afield in space. At first glance, two conflicting analogies, that of the freedom of the seas and that of the sovereignty over territorial air space, may appear to call for consideration in this connection, but on closer examination

See Garner, Recent Developments in International Law, 1925, pp. 141-188; as regards aeronautics, Hazeltine, Law of the Air. 1911; and as regards electronics, Codding, The International Telecommunication Union, 1952.

10 Cf. Gordon Dean, Report on the Atom, 1953; A Programme of Nuclear Power, Cmd. 9389 of 1955; The Commonwealth and Nuclear Progress, 1955.

1 Cf. Boyd and Liston, Rocket Exploration of the Upper Atmosphere, 1955, Whittle, Jet, 1953.

12 Cf. Abetti, The History of Astronomy, 1954; Hoyle, Frontiers of Astronomy, 1955. 13 New York Times, July 30, 1955, International Edition, p. 5, col. 5. See also John C. Cooper, "High Altitude Flight and National Sovereignty," in this Quarterly, vol. 4 (1951), pp. 411-418; also Schachter, "Who Owns the Universe," in Across the Space Frontier, 1952, ed. Ryan, with a foreword by Sir Harold Spencer Jones, Astronomer Royal, pp. 118-131.

only the first of these analogies would appear to be apposite. The principle of the freedom of the seas, despite recent encroachments upon it," has stood the test of centuries of practical application; the principle of the sovereignty of each state over the air space above its territory, which principle developed rapidly during the first quarter of the twentieth century in response to what may prove in retrospect to have been transitional phases in the development both of air navigation and military security,15 has already been considerably qualified by conventional limitations,16 and may become increasingly unreal as greater use is made of the upper air space; we cannot disregard the possibility that the present law relating to sovereignty over air space, while well established at the present time,17 may be regarded by future generations much as we regard the claims to maritime sovereignty which were more or less successfully asserted for several hundreds of years 18 before Grotius and Bynkershoek established the principle of the freedom of the seas. Space beyond the atmosphere of the earth presents a much closer analogy to the high seas than to the air space above the territory of a state. One could, theoretically, conceive of the atmosphere, the ionosphere, the zone used by earth satellites and interplanetary and interstellar space beyond as a series of zones subject to differing legal regimes. There would, however, be serious difficulty in defining the boundaries of the successive zones. Even if this difficulty were overcome and such an approach to the problem were to be adopted the projection of the territorial sovereignty of a state beyond the atmosphere above its territory would be so wholly out of relation to the scale of the universe as to be ridiculous; it would be rather like the Island of St. Helena claiming jurisdiction over the Atlantic.

There are, however, more fundamental difficulties. The first is that any projection of territorial sovereignty into space beyond the atmosphere would be inconsistent with the basic astronomical facts. The revolution of the earth on its own axis, its rotation around the sun, and the motions of the sun and the planets through the galaxy all require that the relationship of particular sovereignties on the surface of the earth to space beyond the atmosphere is never constant for the smallest conceivable fraction of time. Such a projection into space of sovereignties based on particular areas of the earth's surface would give us a series of adjacent irregularly shaped cones with a constantly changing content. Celestial bodies would move in and out of these cones all the time. In these circumstances, the concept of a space cone of sovereignty is a meaningless and dangerous abstraction. The second difficulty is that missiles, space stations and space ships moving in

14 Cf. United Nations, Report of the International Law Commission covering the Work of its Seventh Session, May 2-July 8, 1955.

15 Garner, Development of International Law, 1925, pp. 141-188.

16 The right of innocent passage provided for in the Paris Convention of 1919 and the rights of transit and landing provided for in the Chicago Convention of 1944 (for which see Jennings, "International Civil Aviation and the Law," in 22 British Yearbook of International Law, 1945, pp. 196-197 and 201-202) represent a considerable limitation; the Chicago International Air Transport Agreement and International Air Services Transit Agreement (for which see Jennings, ibid., pp. 202–204) grant rights in respect of scheduled air services which represent a further limitation; the Eisenhower proposal for mutual facilities for aerial reconnaissance as a guarantee against surprise attack (New York Times, July 22, 1955, International Edition, p. 2) would represent a still further limitation. 17 McNair, The Law of the Air, 2nd ed., 1953, pp. 7-8.

18 Cf. Oppenheim, International Law, 8th ed. by Lauterpacht, Vol. I. 1955, pp. 583-584; Fulton, The Sovereignty of the Seas, 1911; Piggott, The Freedom of the Seas, Historically Treated, 1919.