FURTHER DISCUSSION OF U.N. RESOLUTION Senator CANNON. Thank you, Mr. Chairman. Mr. Webb, to get back to this problem of the U.N. resolution, I want to be sure that I am clear in my own mind as to what you said. Now, you said the resolution is binding on us. That is binding only insofar as the matter of intention; is it not? Mr. WEBB. Insofar as the language of the resolution, which clearly states it is intention. Senator CANNON. And it would require beyond that point either a treaty or agreements between countries to actually carry out in detail; would it not? Mr. WEBB. That is correct; all the cooperative arrangements are in the form of agreements. Senator CANNON. And of course, if any treaties are to be negotiated, they would be subject to ratification by the Senate. Mr. WEBB. If it is a treaty; yes, sir. It Senator CANNON. Now, I raise this question because there are two or three areas there that I think need further exploration in connection with the resolution. For example, the problem of liability for occurrences to another country seems to be absolute liability in the resolution on the face of it. Yet, pursuant to agreements, I believe it is the Geneva Conference at the present time, in the aviation industry, we have specifically limited liability due to accidents arising involving aircraft, personnel, damage to property, and so on. seems entirely unrealistic to me that we would impose a limit in the atmospheric portion of the area above us and then say, when you get beyond the atmosphere into outer space that we have absolute liability. I do not see the reason for the distinction and I know that Mr. Johnson is listening to this, because I worked with him before on this overall subject. And I would certainly hope that some of these items would be clarified before any final agreements are arrived at, even though in principle I agree with Mrs. Smith that this is a good resolution and I think it is a very important step forward. That actually recognizes some important concessions on the part of the Russians to go as far as they have in connection with this resolution, and serving with Mrs. Smith as one of the two Senate advisers to the Committee on Peaceful Uses of Outer Space at the U.N., I am very happy to see that it has gotten along as far as it has. Mr. WEBB. Thank you, Senator. We are much appreciative of the great work that you and Senator Smith have done in this field. Now, it does happen that back in the 1930's, when I lived in New York, Í was a member of a committee that had the longest name of any committee, I think. It was the advisory committee to the American section of the International Technical Committee of Aerial Legal Experts. This was the committee that dealt with this question of expanding aviation on an international basis and laying the groundwork so that the risk would not prohibit the expansion. Now, it was in this general period, by this group, under the ICAO setup that negotiated agreements limiting liability for any one accident or the death of any one person so as to prevent the liability from being so uncertain that a nation would not participate in international aviation. Fortunately, today, we are not quite in this position. There is an area of international law that imposes on any nation sending things outward beyond its own borders to accept either the maritime law of the open sea or other systems of liability for what it does. There is no way a nation can take an action beyond its own borders and not accumulate some element of liability for what it does. Now, what we have done here, I think, and Mr. Johnson may wish to correct me, is to discuss with other nations the situation with respect to liability at this time and to state it quite clearly as a basis for anything else that we may do that will be necessary. Now, there is also a distinct difference between aviation and space here, because through the development in the space field, space is more like the system of free use of the oceans than aviation is. A nation asserts sovereignty up through the atmosphere where satellites fly, but sovereignty has not been asserted above this. So, here we are dealing with vehicles that travel above the area in which nations have asserted sovereignty. If you want Mr. Johnson to go further on this or correct me, this might be a good time. RESOLUTION IMPOSES NO NEW LEGAL LIABILITY Senator CANNON. I think so long as the record is clear that this general liability will have to be extended by virtue of an agreement of some sort, either to fix limits or to say that we have unlimited liability in this area, before it imposes a legal liability on our country or any other country. Mr. WEBB. The resolution imposes no new legal liability that we did not have before the resolution was passed, as I understand it. Mr. Johnson is here. Senator CANNON. I think it would be helpful if we heard now from Mr. Johnson on this point. The CHAIRMAN. As I said the other day, those of us who are not lawyers comment much more easily on this than lawyers. Mr. WEBB. This is Mr. Johnson, general counsel of the National Aeronautics and Space Administration, prior to that general counsel to the Air Force, so he is well versed in these matters. STATEMENT OF JOHN A. JOHNSON, GENERAL COUNSEL, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Mr. JOHNSON. I know you have been very interested in this subject for quite some time, Senator Cannon. We have worked and consulted together before on it. I would like to say something in a preliminary way. The only agency that can speak authoritatively on behalf of the U.S. Government concerning the effect of a General Assembly resolution is the Department of State. They will, I am sure, in due course clarify their interpretation of this draft if it does become a resolution adopted by the General Assembly of the United Nations. However, I do think that I can say something about this as an expression of my own views. RESOLUTION WOULD BE BEST EVIDENCE OF EXISTING INTERNATIONAL LAW It is the position of the U.S. Government that a resolution adopted by the General Assembly, which declares certain legal principles, would be the very best evidence of what the existing state of international law is. The General Assembly resolution, as Mr. Webb said, would not in itself impose new legal obligations upon the United States. This is a function of the treatymaking process and not of a General Assembly resolution. So, in that sense, I would not say that the General Assembly resolution is a lawmaking act. But it nevertheless can be a law-recognizing or law-declaring act and be the very best evidence of what the law is. The United States would follow the guidance provided by such a General Assembly resolution just as it would, in any other area of international law, be guided by the best evidence of what the existing international law is. RESPONSIBILITY FOR LIABILITY With respect to the specific question of liability, the provision in this draft declaration concerning liability does not go into the question of precisely what the rule of liability would be. Incidentally, it refers not only to outer space, but "on the earth, in air space, or in outer space." It is concerned with the consequences of space activities generally. It reads this way: Each state which launches or procures the launching of an object into outer space, and each state from whose territory or facility an object is launched, is internationally liable for damage done to a foreign state or to its natural or juridical persons by such object or its component parts on the earth, in air space, or in outer space. The purpose of that particular paragraph is to establish a general principle of state responsibility, without spelling out the particular manner in which it would be applied-that is, whether one would apply a rule of absolute or strict liability, negligence or comparative negligence or whatever it might be, and whether there would have to be different regimes, legally speaking, in earth, air space, and outer space. TREATY TO BE WORKED OUT IN FUTURE The Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space of the United Nations has had three principal subjects on its agenda. One is this draft declaration of basic principles. The other two relate to liability and the general subject of legal obligations in connection with assistance to astronauts and return of spacecraft that may come down in places that were not intended. I know it is the intention and the hope of the United States that if this first item concerning basic principles is satisfactorily concluded at this session of the General Assembly of the United Nations, the very next item of business for the Legal Subcommittee will be to get to work on draft treaties in those two fields. No new obligations of a legal nature will be imposed upon the United States in the field of liability by virtue of the resolution on basic principles. It is intended that the detailed rules, which would include this question of absolute liability which you raised, Senator Cannon, will be dealt with in the terms of the treaty to be worked out in the future. Senator SMITH. Will the Senator yield right there so that I might ask Mr. Johnson a question? Senator CANNON. I would be glad to. DIFFERENCE BETWEEN "AGREEMENTS" AND "TREATIES" Senator SMITH. You speak of this resolution not being an agreement or a law. Yet the resolution does lead to an agreement or could lead to an agreement, not necessarily a treaty. All this can be done, can it not, by international agreement and not come to the Senate for ratification? Mr. JOHNSON. Senator Smith, as you know, there are different kinds of international agreements which are treated differently under our domestic law. Some of them must be submitted to the Senate for its consent because they are treaties under our own constitutional law. Others are in the field of executive agreements that do not require that kind of action by the Senate. I can say, generally, that if an international agreement imposes new legal responsibilities or liabilities upon the United States, that is certainly a prinicpal factor that causes it to be considered as a treaty rather than an executive agreement, and such an agreement would be submitted, most probably, to the Senate for its consent. Senator SMITH. You say most probably, but not necessarily. Mr. JOHNSON. I have to qualify my statements, because the decision in every case is made by the Department of State. They are really the only agency that is qualified to speak in unequivocal terms on this question. But that is certainly one of the principal criteria. Typically, the executive agreements which have not been submitted to the Senate lie in the field of cooperative arrangements. They often grant a very substantial benefit to the United States and impose very substantial liabilities upon another country. I might mention in this connection the very many military rights agreements which the United States has in connection with the establishment of bases abroad. Typically, these have been concluded as executive agreements, not as treaties. The United States is the beneficiary of the relations that have been created by those agreements, but it has not itself assumed additional obligations under them which have required that they be treated as treaties under our constitutional law. Therefore, one would have to distinguish, I think, within this whole group of principles stated in this proposed UN resolution. It is true that it could lay the groundwork, the foundation, for quite a number of international agreements in the future, some of which might be treaties and some executive agreements. Senator SMITH. Will the Senator yield for one more? Senator SMITH. Mr. Chairman, this is a very vital subject, it seems to me, and as I understand it from studies I have made there is a very fine line between this international agreement and treaty. I think that if the State Department must clarify this, then it might be your wish that we have representatives from the State Department before we get too far into this subject of liability. Thank you very much. DISCUSSION OF CHANGES IN SOVIET POSITION Senator CANNON. Mr. Chairman, if I may, while we have Mr. Johnson here, I know that I, as one member of the committee, and I think the other members might also like to hear his views as to what changes, if any, have been apparent to him in the cold war situation insofar as the Legal Committee of the U.N. on the Peaceful Uses of Outer Space is concerned. I believe his views would be of interest because I know that Mr. Johnson was working with the U.N. committee when the Russians were very intransigent about many provisions that they have now agreed to in this resolution. I, for one-and I hope the other members of the committee also-would like to have him state what his views are in that regard. The CHAIRMAN. I do not object to it. We do have a hearing dealing with a specific subject. Try to tie it up somehow with what we are supposed to be discussing this morning, which is a grant-in-aid program for colleges. Mr. JOHNSON. I would find it difficult to tie the two directly together, Mr. Chairman. I could make a direct statement, I believe, in response to Senator Cannon, if you wish. The CHAIRMAN. Surely. Mr. JOHNSON. This requires that I go back a bit into history. Senator Cannon was present, I know, in Geneva when we had our first meeting on this subject. At that time that was in May and June of 1962-the Soviet Union introduced the first draft of general legal principles governing the activities of states in the exploration and use of outer space. A good deal of the substance of that draft is still retained in this present draft. I think this would be evidenced by inspection of this draft and the one submitted by the Soviet Union in 1962. It is also true that, from the beginning, the United States and many other states represented in the Legal Subcommittee did not take issue with the substance of most of the principles in the Soviet draft. On the other hand, the Soviet draft did include four principles that were highly controversial and which were the subject of really strenuous debate. These related, first of all, to the question of what the Soviets referred to as the use of outer space for the gathering of information of an intelligence or espionage nature. Another principle referred to the question of whether any kind of an entity other than a state itself could participate in activities in outer space-the question of private entities operating in outer space. Another one referred to the question of the use of outer space for war propaganda. The fourth of these controversial issues related to the question of interference or contamination of outer space. This was the question of whether one state should, in effect, have a veto over the activities of other states when, in the judgment of the first state, the activities of the second state might possibly interfere with its pursuit of its own interests in outer space. Now, you will notice that some of these points have been completely dropped from this draft. They are not present here. Others appear here in rather considerably changed form as a result of long debate and negotiation. There is, for instance, a reference in the preamble of this draft to an earlier General Assembly resolution condemning |