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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. 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

DIFFERENCE BETWEEN

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.

‘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 CANNON. I shall be very happy to yield.

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 judg. ment 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 propaganda designed or likely to provoke or encourage any threat to the peace, breach of the peace, or act of aggression.

The question of participation of entities other than states themselves in outer space has been taken care of in paragraph 5, which refers specifically to the activities in outer space carried on by nongovernmental entities. It goes ahead to say that such activities shall require authorization and continuing supervision by the state concerned.

The matter of observation from outer space has been omitted entirely from this draft. The question of interference, or potentially harmful activities in outer space, has been spelled out in paragraph 6, which now provides for a process of consultation among the states that might deem themselves to be affected by a proposed activity of that kind rather than conferring a veto upon an individual state.

So the process certainly has been one of coming together and, you might say, a considerable softening of the previous atmosphere that prevailed in the Legal Subcommittee. Instead of having conflicting drafts with the kind of debate that, ensued from that, we have been able to reach agreement on this draft resolution; and we hope to go ahead with the drafting of agreements on the two subjects that I mentioned. Senator CANNON. Thank

you,

Senator.

EFFORTS TO DETERMINE “BOUNDARIES” OF COOPERATION

Mr. WEBB. Could I say one word there, Senator Cannon?

We and the Russians both have absolute requirements to protect our national security. These are at the outer boundaries and absolute limits on any possible method of cooperation, certainly, at this time. Now, in the middle of the stream are a certain number of things where it is to the advantage of both of us to cooperate and work together. Now, this is but one step in the process, which I previously outlined, of trying to find that area of middle course which is clearly to the advantage of both of us, and then struggling outward from that to see where the boundaries are and whether they are absolute boundaries or whether we can expand that middle course where it is to the mutual advantage of both of us to cooperate.

Now, this process of mutual exploration of what we can benefit from from getting together is the process that goes on constantly, and of which this is a part, I think.

Senator CANNON. Thank you, Mr. Chairman.
The CHAIRMAN. Senator Symington?

TREATY WOULD REQUIRE SENATE RATIFICATION

Senator SYMINGTON. Thank you, Mr. Chairman.

Mr. Webb, I was sorry I had to leave while the distinguished Senator from Maine was asking some interesting questions about this United Nations agreement. Nothing is going to be signed up there that would have the concept of a treaty without first being presented to the Senate, is that your understanding!

Mr. WEBB. That is our understanding, although we have pointed out that the State Department is the proper agency to determine what is a treaty to be presented and what is not.

Certainly I am sure that the executive branch, in any matter that is a treaty, will present it.

Senator SYMINGTON. Is that a matter that has been under discussion?

Mr. WEBB. This is constantly a matter of discussion. No specific treaties have been made as a result of this resolution; nothing in the way of implementing treaties yet.

Senator SYMINGTON. I would hope that whatever influence you have on the decision the State Department makes in this matter would lean toward when in doubt, bringing it up here.

Mr. WEBB. Mr. Johnson says he would like to say just a word there, but first let me make my comment, if I may, Mr. Chairman.

We in NASA appreciate the desire and willingness of this committee to work on an increasingly close basis with us with respect to these programs. We have undertaken to present to this committee an interim operating plan as to how the funds now going through Congress in the appropriation bill for 1964 will actually be applied once the Congress has acted. So we regard this relationship with the committee as one of increasing consultation and desire to find the best answers to the problems of the space program and we expect to pursue this actively and vigorously to the extent the committee will permit

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Senator SMITH. Mr. Chairman, would the Senator yield just a moment for clarification?

Senator SYMINGTON, I would be glad to yield. Would the distinguished Senator care to hear from Mr. Johnson first, so we are sure we have the whole thought?

Senator SMITH. Yes.

Mr. JOHNSON. The only two subjects, Senator Symington, covered by this draft which have been discussed specifically as being the subjects of international agreements have been the subjects of liability and assistance and return.

Assistance and return is a kind of shorthand way of expressing the general problem of dealing with astronauts who are in distress or who come down in unintended places and the return of spacecraft which may be salvageable. It is my personal opinion that if we are successful in working out agreements in these two fields, it will only be in a form which will involve the treatymaking process. I should think that the result would be an international agreement submitted to the Senate for its consent, because both of these subjects would involve reciprocal obligations by the United States, as well as benefits conferred upon the United States.

Senator SYMINGTON. I will be glad to yield.

DRAFT RESOLUTION THE RESULT OF CONSIDERABLE NEGOTIATION

Senator SMITH. Thank you very much.

Is the published agreement mentioned in the paper this morning identical with the earlier draft, Mr. Johnson?

Mr. JOHNSON. Senator Smith, I have not had a chance to examine in detail this draft published in the New York Times this morning. But from what I have seen while I have been sitting here, it appears to be an accurate report of what has been agreed upon as a United

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